with whom POLITZ, JOHNSON and JERRE S. WILLIAMS, join dissenting:
We dissent from the majority’s opinion because it fundamentally misconstrues both the character of the Zoning Board’s action, and our role in reviewing such actions for compliance with fundamental constitutional guarantees. By a stroke of the judicial pen, zoning boards of adjustment have become legislatures and the action of every state or municipal agency, however petty, is now entitled to the same deference as the deliberate enactments of the highest state legislature.
The plaintiffs in this case do not challenge a zoning ordinance adopted by the vote of a local legislative body. They complain only of the allegedly arbitrary and discriminatory denial of an application for a variance from such an ordinance by an appointed Board of Adjustment to whom the city’s lawmakers have delegated limited powers. The actions of such a body on the individual application of the owner of a specific property do not merit the deference accorded to legislative enactments.
The majority nominally concedes that a zoning board of adjustment is not a legislative body, although the opinion chooses to call its actions quasi-legislative. The majority professes to apply the long-accepted standard of review for the decisions of such agencies, however characterized: Only arbitrary and capricious actions of the Zoning Board would violate constitutional rights and become subject to federal judicial review. This is the standard to which we also subscribe. In applying the standard, however, the majority distorts it, equating it with “the same constitutional standards we employ to review statutes enacted by state legislatures.” The test of unconstitutionality is thus alchemized from arbitrary and capricious action to whether “any conceivable rational basis supports the decision.” The majority’s acknowl-edgement en passant that we are not reviewing legislative action is washed over by a flood of citation to cases that in fact review enactments by truly legislative bodies.
Applying this transmuted standard, the majority finds no disputed facts that warrant taking the plaintiffs’ cláim past summary judgment. In practice, their standard, new in all but name, will pretermit factual disputes in every case, even when genuine disputes of material fact exist, for the actual facts and procedures that led to the Zoning Board’s determination become irrelevant to the judicial inquiry. The real facts, however, must not thus be ignored. A zoning board engaged in quasi-judicial *487determinations, as this one was, is subject to constraints that do not apply to a legislature. When we review the constitutionality of its actions, we must do so on the basis of its actual conduct and the facts in the record before it. The constitutionality of the quasi-judicial action of an administrative agency is not reviewed with the deference given legislative enactments, and the actions of such a board are not sanitized by post-hoe conjecture concerning the factual determinations it might conceivably have made. When a challenge creates a genuine dispute of material fact relating to the rationality of the actions of a zoning board, the plaintiffs right to a trial on the merits must not be buried in a shroud of affidavits.
I.
The Zoning Board of Adjustment created by the City of College Station, pursuant to Texas statutory authority,1 is typical of those found in most states. It bears no resemblance to a legislature. Its members are appointed,2 and, in the words of the statute, “may, in appropriate eases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent.”3 The Board is empowered only to decide administrative matters and to authorize “upon appeal in specific cases” variances from the ordinance when it finds that, owing to special conditions, literal enforcement would result in unnecessary hardship to the party seeking a variance.4 The Board has no power to enact or to amend zoning classification plans, either on a municipality-wide or other geographic basis. The limited scope of the Board’s authority requires it to analyze the circumstances of the particular zoning problem presented, and to determine whether, for a specific property, an exception to the ordinance is warranted. The Board must hold a public hearing and give notice to the parties in interest.5 Its decisions, unlike those of a legislature or a city council, are subject to review by the Texas courts, which may affirm, modify or reverse the board’s decision.6
To formulate its standard of review, the majority opinion relies on what it perceives to be the applicability of legislative rather than adjudicative facts. “In general,” it states, “historical facts in the adjudicative model are case specific____” Here, the Zoning Board acts and indeed must by statute act, on the basis of just such case-specific facts: those presented to it at the hearing, and conditions in the immediate geographic area. Although the Board must consider the plan and purpose of the ordinance as a whole, its primary basis for determining whether the terms of the ordinance should be varied is the actual situation of the property in question in relation to neighboring properties, the hardship on the variance applicant that would result from enforcement of the ordinance, and the effect on the community of permitting a variance. The facts involved in this kind of a decision are adjudicative because they relate to the details of one particular case.7 Conversely, “[Ljegislative facts do not usually concern the immediate parties.”8
A board of adjustment has “no statutory power to legislate.” 9 The kind of action such a board takes cannot be characterized as even quasi-legislative. Instead, it is properly, and almost universally, character*488ized as a quasi-judicial or administrative act.10
Most zoning cases in which the quasi-legislative standard has been invoked have involved challenges stemming from the application of zoning ordinances of a legislative character, not attacks on a property-specific decision of a zoning board of adjustment.11 Justice Stevens expressed the distinction clearly, quoting the Supreme Court of Oregon:
Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority____ On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test.12
The majority's admission that procedural due process scrutiny might properly be applied to the Zoning Board’s decision demonstrates the Board’s nonlegislative character. The majority, however, neither admits the inconsistency involved in exacting procedural due process for legislative decisions, nor considers the limited statutory authority of the Zoning Board, the allegations of the complaint, or the specific facts here involved. Instead, it leaps from the mere fact that the Board’s action affects the use of zoned property to the conclusion that the action is in itself zoning, and that a conjectural set of facts validates the Board’s action. That “a state may choose to make a legislative decision by a process that resembles adjudication” is of no consequence to the majority, thereby elevating the standard of review for every state agency acting under legislative mandate to the level of the legislature itself.
This kind of reflexive response is no substitute for analysis. On other occasions this circuit has carefully scrutinized local actions that were self-proclaimed “zoning” decisions, and has refused to be dissuaded from review by the mere incantation of the word “zoning”. Thus, in Bayou Landing v. Watts,13 we carefully reviewed the refusal of Baton Rouge’s city council to issue an occupancy permit to an adult bookstore. Distinguishing that action from zoning, we said, “Zoning ... connotes a non-particularized legislative process in which rules are promulgated and land areas designated on a general, prospective basis.” 14
The same careful distinction was observed by the Eleventh Circuit in Southern Cooperative Development Fund v. Drig-gers,15 in which the court stated:
The plaintiffs do not challenge the exercise of legislative function by Manatee County, or the validity or legality of the zoning ordinances. On the contrary, the plaintiffs urge that the Subdivision Regulations be applied as written. What we are called upon to decide is whether the *489Commission’s actions were authorized as a matter of Florida law, and if so whether their actions were in violation of the Due Process clause of the Fourteenth Amendment.16
As the Circuit Court for the District of Columbia has written:
... [W]hen a complainant makes a factual showing indicating that one of [the zoning commission] actions is arbitrary that action cannot be sustained unless the Commission puts forward, or the court is otherwise able to discern, some basis in fact and law to justify the action as consistent with reasonableness.17
Whether a zoning action is primarily legislative or judicial depends on all of the circumstances, including the nature of the proceeding and the authority of the body that makes the determination.18 The majority relies on South Gwinnett Venture v. Pruitt19 to support its characterization of the College Station Board’s decision as quasi-legislative. Pruitt, however, characterized only area-wide zoning and rezoning activities as quasi-legislative, a characterization essentially agreed upon by commentators and courts alike, and one with which we are in complete agreement.20 Pruitt also denominated the rezoning of a single property quasi-legislative. The opinion, however, was reviewing the action of the Gwinnett County Commissioners, a legislative body empowered to enact and amend geographic zoning plans. The Commissioners, unlike the College Station Zoning Board, were not required by statute to hold an adjudicative hearing before taking action. Even so, its characterization of spot zoning as quasi-legislative has come, under recent attack.21
Each of the other zoning eases relied on by the majority deals only with area-wide zoning legislation.22 In these cases, as in Pruitt, the courts did not pretend to ignore the actual facts on which the zoning commission, city council, or board acted, but reviewed the record to determine if the zoning decision was, in fact, rational and nonarbitrary.23 The action of a zoning board in exercising its limited administrative authority to decide on an application for a variance differs toto cáelo from a legislative enactment.
What is at stake in labeling a decision legislative or quasi-legislative rather than quasi-judicial is more than a linguistic nicety. A legislative enactment is entitled to deference when reviewed by the judicial branch, and must be accorded “great weight” when its constitutionality is questioned.24 A similar degree of judicial deference is appropriate when local governments exercise their zoning powers,25 and the decisions of local legislatures to zone or to *490rezone are entitled to a “presumption of validity.”26
Administrative or quasi-judicial decisions of a local zoning board are different. The appropriate standard by which the constitutionality of such a board’s action is reviewed requires that we ask whether the action “is arbitrary and capricious, having no substantial relation to the general welfare.” 27 There is no basis for the majority’s claim that we should abdicate review of the quasi-judicial or administrative actions of a zoning board of adjustment by ignoring the record and cloaking its actions with a presumption of validity that is virtually irrebutable. Even in Barbian v. Panagis,28 the Seventh Circuit, while reciting a rule similar to that stated by the majority, carefully reviewed the evidence and the basis for the city agency’s action before reaching a decision, and gave the agency none of the deference that the majority accords the College Station Board in this case.
Although the majority deprecates any review of the actual basis for the Zoning Board’s decision, the opinion undertakes exactly such a review. The majority is careful to note that “the Zoning Board articulated a rational basis,” and that “the articulated basis was a basis for decision.” The opinion concludes with a detailed examination of the record before the Zoning Board and the rationality of the Board’s decision that belies the majority’s opening rhetoric.
II.
The majority has not only applied what is in fact, although not in words, an incorrect legal standard; it has failed to attend to the procedural posture of this case. On a motion for summary judgment, the court must consider all of the evidence in the light most favorable to the opposing party to see if a genuine issue of material fact exists.29 There are genuine issues of material fact in this case, for there is a real dispute whether the Zoning Board’s action in denying the plaintiffs a variance from the city’s off-street parking requirements was arbitrary and capricious.
The plaintiffs showed that similar variances had been granted to other businesses in the area. According to the city director of planning, almost every business in the area at that time failed to comply with the parking requirements. Moreover, a subsequent occupant of the very property involved was granted a variance from the parking requirements by the Zoning Board. The majority examines each piece of this evidence separately and asks only whether any single bit raises a genuine issue of fact in and of itself. However, the proper approach is to look at the cumulative effect of the evidence. If, taken as a whole, the evidence raises a material factual dispute, then summary judgment, should not be granted.30
The majority pretends not to inquire whether the Board in fact acted arbitrarily or capriciously but only whether its lawyer, or the court, can conjecture an after-the-fact basis for its decision. The proper question to ask when reviewing a non-legislative determination, however, is whether a rational basis in fact existed when the action was taken.31 No plaintiff will be able to overcome the “at least debatable” standard constructed by the majority. To do so, he would be required, by affidavit, to foreclose beyond dispute any possibility other than caprice and arbitrariness. Since this will be impossible when ex post facto conjecture will suffice, the property owner’s right to due process will be consistently *491short-circuited by judgment as summary in operation as its name implies.
III.
The attentive reader of judicial opinions will surely ask: why was this case taken en banc? The majority opinion is based on the same standard of review adopted by the panel and this dissent. The only apparent question remaining is whether or not there is a genuine dispute of material fact sufficient to carry the case past the guillotine of summary judgment. Such a case-specific inquiry would not appear to constitute the kind of issue to which en banc rehearings are restricted by Fed.R.App.P. 35, and by our own internal operating procedures, for it involves neither a question of exceptional importance nor the necessity of maintaining uniformity of decisions. If the case is exceptionally important, it is because of something that lurks beneath the surface. The majority opinion gives lip service to judicial review while it abdicates that power. We would not endow minor municipal bodies with such unreviewable authority to trench upon constitutional rights.
. See Tex.Civ.Stat.Ann. art. 101 lg (Vernon 1963 & Supp.1985).
. Id. at § 1011g(b).
. Id. at § 1011g(a).
. Id. at § 1011g(g)3.
. Id. at § 1011g(f).
. Id. at § 1011g(j)-(m).
. 2 K. Davis, Administrative Law Treatise § 12:3, at 415 (2d ed. 1979). Cf. Hornsby v. Allen, 326 F.2d 605, 608 (5th Cir.1964).
. K. Davis, supra note 7, at 413.
. Board of Adjustment of City of San Antonio v. Willie, 511 S.W.2d 591, 593 (Tex.Civ.App.1974).
. City of Eastlake v. Forest City Ent., Inc., 426 U.S. 668, 683-87, 96 S.Ct. 2358, 2365-68, 49 L.Ed.2d 132, 141 (1976) (Stevens and Brennan, JJ., dissenting); Robey v. Schwab, 307 F.2d 198, 201 (D.C.Cir.1962). See generally Cunningham, Rezoning By Amendment as an Administrative or Quasi-Judicial Act: The "New Look” in Michigan Zoning, 73 Mich.L.Rev. 1341, 1341-42 (1975); Note, Developments in the Law — Zoning, 91 Harv.L.Rev. 1427, 1512 (1978); 3 R. Anderson, American Law of Zoning § 20.01, at 462 (2d ed. 1977).
. See, e.g., Couf v. DeBlaker, 652 F.2d 585, 587-90 (5th Cir.), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1981); Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 240, 66 L.Ed.2d 112 (1980); Blackman v. City of Big Sandy, 507 F.2d 935, 936 (5th Cir.1975); Nasser v. City of Homewood, 671 F.2d 432, 441 (11th Cir.1982); Rogin v. Bensalem Township, 616 F.2d 680, 689 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981). But cf. Scudder v. Town of Greendale, 704 F.2d 999 (7th Cir.1983).
. City of Eastlake v. Forest City Ent., Inc., 426 U.S. 668, 684, 96 S.Ct. 2358, 2367, 49 L.Ed.2d 132, 143 (1976) (Stevens and Brennan, JJ., dissenting) quoting Fasano v. Board of County Comm’rs, 264 Or. 574, 580-81, 507 P.2d 23, 26 (1973). Cf. R. Babcock, The Zoning Game 158 (1966).
. 563 F.2d 1172 (5th Cir.1977), cert. denied, 439 U.S., 818, 99 S.Ct. 79, 58 L.Ed.2d 109 (1978).
. Id. at 1175.
. 696 F.2d 1347 (11th Cir.), cert. denied, 463 U.S. 1208, 103 S.Ct. 3539, 77 L.Ed.2d 1389 (1983).
. Id. at 1351.
. Shenk v. Zoning Commission, 440 F.2d 295, 297 (D.C.Cir.1971). See also Citizens Assoc. of Georgetown v. Zoning Comm’n of D.C., 477 F.2d 402, 408-09 (Ca.D.C.1973).
. Harvard, supra, n. 10, at 1513.
. 491 F.2d 5, 7 (5th Cir.) (en banc), cert. denied, 416 U.S. 901, 94 S.Ct. 1625, 40 L.Ed.2d 119 (1974).
. See, e.g. Cloutier v. Town of Epping, 714 F.2d 1184, 1191 (1st Cir.1983); Citizens Assoc. of Georgetown v. Zoning Comm’n of D.C., 477 F.2d 402, 408 (D.C.Cir.1973); Gerstenfeld v. Jett, 374 F.2d 333, 335 (D.C.Cir.1967); Cowart v. City of Ocala, Fla., 478 F.Supp. 774, 780 (M.D.Fla.1979); Stemaman v. County of McHenry, 454 F.Supp. 240,245 (N.D.Ill.1978); Stephens v. City of Plano, Tex., 375 F.Supp. 985, 987 (E.D.Tex.1974).
. Harris, Rezoning — Should It Be a Legislative or Judicial Function?, 31 Baylor L.Rev. 409, 409 (1979).
. Higginbotham v. Barrett, 473 F.2d 745 (5th Cir.1973); Blackman v. City of Big Sandy, Texas, 507 F.2d 935 (5th Cir.1975); Stansberry v. Holmes, 613 F.2d 1285 (5th Cir.), cert. denied, 449 U.S. 885 (1980).
. See Pruitt, supra at 7; Higginbotham, 473 F.2d at 748; Blackman, 507 F.2d at 936. See also Stansbury, 613 F.2d at 1289.
. Fullilove v. Klutznick, 448 U.S. 448, 472, 100 S.Ct. 2758, 2771-72, 65 L.Ed.2d 902 (1980).
. Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 509, 74 L.Ed.2d 297 (1982).
. Pruitt, supra, 491 F.2d at 7.
. Pruitt, supra, 491 F.2d at 7.
. 694 F.2d 476 (7th Cir.1982).
. Harrison v. Byrd, 765 F.2d 501, 504 (5th Cir.1985).
. Powers v. Nassau Development Corp., 753 F.2d 457, 462-63 (5th Cir.1984), on suggestion for rehearing en banc, 756 F.2d 1084, 1085 (5th Cir.1985) (per curiam).
. Robey v. Schwab, 307 F.2d 198 (D.C.Cir.1962). See supra note 21. Cf. Harris v. Tobriner, 304 F.2d 377, 378 (D.C.Cir.1962); 5 B. Mezines, J. Stein & J. Gruff, Administrative Law § 43.02[7] (1985).