## Facts

- Steven John Marks bought a house in Chesapeake, Virginia intending to operate a palmistry/fortune-telling business.
- The property was initially zoned residential, but surrounding parcels had been rezoned for commercial use, and the city’s comprehensive plan anticipated business use in the area.
- Marks applied to rezone the property to B-2 (general business); the planning commission unanimously recommended approval, and the city council unanimously approved after Marks disclosed his intended use.
- Council members warned Marks that a palmistry also required a conditional use permit under the city’s licensing ordinance.
- Marks applied for the conditional use permit; the planning commission again approved, and no public opposition appeared at that stage.
- At the city council hearing on the conditional use permit, local residents appeared and opposed the palmistry primarily on religious and moral grounds.
- The city council denied the conditional use permit after hearing the religiously based objections.
- In the ensuing § 1983 action, evidence showed two council members were influenced by the religious opposition, and the city planning director testified the proposed use would have no adverse neighborhood effects.
- The district court found Marks satisfied applicable requirements and that denial lacked a legitimate land-use justification.

## Issues

1. Whether Marks had a protectable property interest in the conditional use permit sufficient to support a substantive due process claim under 42 U.S.C. § 1983.
2. Whether the city council’s denial of the permit, absent any legitimate land-use concerns and influenced by religious opposition, was arbitrary and capricious and not rationally related to a legitimate governmental interest, thereby violating the Fourteenth Amendment’s substantive due process protections.

## Decision

- The Fourth Circuit affirmed the judgment for Marks.
- The court held the permit denial was arbitrary and capricious and lacked a rational relationship to any legitimate governmental interest.
- The court agreed the record supported the finding that the denial rested on impermissible considerations rather than neutral land-use grounds.
- The court upheld the district court’s determination of liability and left intact the awarded declaratory and injunctive relief and compensatory damages.

## Legal Principles

- A substantive due process violation in the land-use context requires governmental action that is arbitrary and capricious and not rationally related to a legitimate governmental interest.
- When an applicant satisfies objective zoning/licensing criteria and the permit process creates a legitimate entitlement, denial may implicate a protectable property interest.
- Federal courts generally defer to local land-use decisions, but may grant § 1983 relief when a decision is so unsupported by facts and so infected by improper considerations that it cannot be justified as serving a legitimate governmental purpose.
- Religious or moral hostility toward a lawful proposed use, without a neutral land-use rationale, is not a legitimate basis for denying a permit under rational-basis substantive due process review.

## Conclusion

The Fourth Circuit affirmed liability under § 1983 because the city council denied a conditional use permit for a lawful business based on religiously motivated opposition and without any legitimate land-use justification, making the decision constitutionally arbitrary under substantive due process.


Marks v. City of Chesapeake, 883 F.2d 308 (4th Cir. 1989)