Acierno v. Cloutier

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

7-7-1994

Acierno v. Cloutier
Precedential or Non-Precedential:

Docket 93-7456

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Recommended Citation
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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
__________________________

On 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

(Filed July 7, 1994)

Collins J. Seitz, Jr. (argued)
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 (argued)

1
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 (argued)
Suite 702
200 West Ninth Street
Ninth Street Plaza
Wilmington, DE 19801-1646

Carl A. Agostini
Agostini and Levitsky
623 King Street, P.O. Box 2323
Wilmington, DE 19899

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 another chapter in the extensive volume of

litigation between Frank Acierno and the members of the New

Castle County, Delaware Council ("County Council") 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. These appeals

2
must be dismissed for lack of appellate jurisdiction insofar as

they involve the present members of the County Council from whom

Acierno seeks prospective injunctive relief. We further conclude

that the remaining defendants are immune from suit because the

actions they took with respect to Acierno's commercial property

were 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

defendants' motion for summary judgment on immunity grounds

insofar as it involves the former members of the County Council.

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.

3
 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 Code0 requesting that the

0
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

4
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,

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

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.

5
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

plan0 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.

0
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).

6
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.

App. (No. 93-7456) at 113 (emphasis added).0 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

0
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.

7
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

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

8
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

9
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

10
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

11
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.0

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.0 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.
0
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.
0
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.

12
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

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,0

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). 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.
The district court separately addressed the defenses of

legislative and qualified immunity. The district court

0
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.

13
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

14
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

15
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 appeal 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

16
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 __, 111 S. Ct. at 1793.0

0
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 __, 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
__, 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
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

17
 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 to some

extent, 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

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

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.

18
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.0 With

0
Acierno also contends that the district court's denial of the
motion for summary judgment on legislative immunity grounds as
concerns the present members of the County Council falls into the
ambit of the Prisco rule and is not immediately appealable. We
agree. Although the Prisco case did not explicitly involve an
issue of absolute immunity, its holding extends to legislative as
well as qualified immunity. 851 F.2d at 96 ("We hold, therefore,
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.").

19
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 defendants argue that Prisco was wrongly decided in

light of the prevailing rule among our sister courts of appeal

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). We, of course, have

no occasion in this case to reconsider Prisco and are bound to

follow our precedent. 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). Thus, we will adhere to the Prisco rule and dismiss these

appeals insofar as they involve issues of whether the present

County Council members are entitled to absolute and qualified

immunity.

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. He

contends that his only action with respect to this entire dispute

was the issuance of a legal opinion to the County Council which

indicated that the Council had discretion to void the property's

20
record plan. In support of his argument that the amended

complaint contains no viable injunctive relief against him,

Mitchell cites only to Instant Air Freight Co. v. C.F. Air

Freight, Inc., 882 F.2d 797 (3d Cir. 1989). That case provides

no support for his position because it merely reviewed the

standards employed by a district court in granting preliminary

injunctive relief and concluded that the court abused its

discretion in finding that the plaintiff had met its burden of

demonstrating irreparable harm. Id. at 800-05. Nevertheless,

Prisco allows us to "examine[] the complaint carefully to

determine whether any of its allegations would permit proof of

facts warranting any prospective relief against him." 851 F.2d

at 96.

We must accept the factual allegations contained in the

amended complaint as true and draw all factual inferences in

favor of plaintiff Acierno as the non-moving party because this

appeal arrives in our court after the denial of motion to

dismiss. Kulwicki, 969 F.2d at 1462. In his amended complaint

Acierno makes several allegations concerning Mitchell's role in

the voiding of the record plan, as well as allegations that all

defendants, including Mitchell, have acted arbitrarily and

abusively to deprive Acierno of his right to develop commercial

property. The amended complaint contains a general request

seeking preliminary and permanent injunctive relief for

reinstatement of the record plan and DPUD zoning, a declaration

that Acierno has a vested right to develop the property as zoned,

and a prohibition on further violations of Acierno's

21
constitutional rights. App. (No. 93-7456) at 26. Nowhere in the

complaint, however, does Acierno allege that it lies within the

scope of Mitchell's job responsibilities to take action

reinstating his record plan and DPUD zoning, or to declare that

he possesses a vested development right. Furthermore, the

request for an injunction prohibiting further violations of

Acierno's constitutional rights is overbroad given the nature of

Mitchell's limited role in this dispute. Therefore, we hold that

there is no viable injunctive relief available against Mitchell

as pleaded in the amended complaint, which distinguishes his

appeal from the rule of Prisco. We have appellate jurisdiction

to consider whether Mitchell was entitled to dismissal as a

defendant on qualified immunity grounds.

In sum, we will dismiss the appeal of the members of

the County Council insofar as it involves questions of

legislative and qualified immunity with respect to present

members against whom injunctive relief is sought. We have

limited appellate jurisdiction to consider whether the 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.0 Furthermore,

0
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

22
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 former 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).

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,

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 former 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.

23
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).

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.

24
 IV.

A.

We first address the issue of whether the former

members of the County Council are entitled to absolute

legislative immunity for their actions because in the event we

agree with their position, that 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).0
0
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

25
 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,

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. Providing a

further inquiry to help define the first part of the Ryan test,

in that case 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

that the members of the County Council were acting within their
statutorily defined governmental function when the two ordinances
were enacted.

26
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 that this

inquiry is 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).0 On the

basis of 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

0
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.

27
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,

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.

28
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

29
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.0

0
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,

30
 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

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

we need not address whether this action also violated the
"procedural prong" of the Ryan test.

31
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

32
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

33
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,

34
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

35
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

36
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 that 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

37
requirement destroyed the legislative character of the County

Council's act of enacting Substitute 1 to Ordinance 92-119.0

In sum, we conclude that the former 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 former

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 former members

of the County Council are entitled to protection under the more

0
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.

38
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 (1981). 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. 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 former 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 former members of the County Council, and its

denial of Mitchell's motion to dismiss on qualified immunity

grounds.

39
 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

40
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, __, 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).
Property interests, of course, are not created by the
Constitution. Rather they are created and their dimensions

41
 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 in this case did, 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

42
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

43
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

44
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 have

obtained a building permit and to have commenced 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).

45
 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) (the state had charged the defendant with violating

46
certain State of 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 had not given the defendant a

constitutional right to develop the marine facility as planned

under the prior regulations), aff'd without opinion, 604 A.2d 418

(Del. 1991).

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,

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

47
A.2d 355, 360 (Del. 1984) (en 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.").

48
 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.0
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

0
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.

49
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-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

50
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 former 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.

51
Good v. Dauphin County Social Servs. for Children and Youth, 891

F.2d 1087, 1092 (3d Cir. 1989).0

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

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."0 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 former members of the County
0
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).
0
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).

52
Council reasonably could have believed 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

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

53
 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 former 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

54
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.0

V.

In sum, we will dismiss the appeal filed by the members

of the County Council insofar as it involves the present members

of the County Council from whom plaintiff Acierno seeks

prospective injunctive relief. With respect to the former

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 former

0
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
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.

55
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.

56