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Bituminous Materials, Inc. v. Rice County

ELR Citation: 28 ELR 20110
Nos. 96-4202, 126 F.3d 1068/(8th Cir., 10/02/1997)

The court holds that restrictions on a road paving contractor's land use permit for locating a temporary asphalt plant at a gravel pit do not violate the contractor's substantive due process and equal protection rights, or unduly interfere with interstate commerce. The court first holds that the substantive due process claim fails, because the contractor's interest in the permitting process is not a protected property interest. The holder of a land use permit has a property interest if a state law or regulation limits the issuing authority's discretion to restrict or revoke the permit by requiring that the permit issue upon compliance with terms and conditions prescribed by statute or ordinance. The ordinance in question does not limit the county's discretion to deny or restrict a permit sufficiently to grant the contractor a property interest. The court next notes that even if the contractor could prove a constitutionally protected property interest, the contractor failed to prove that the county's actions were irrational. The court determines that the permit restrictions were rationally related to concerns about road damage, environmental damage, traffic, safety, and noise. The court next holds that the equal protection claim is without merit. The contractor produced no evidence that its asphalt plants and gravel pits were similarly situated to others that received permits with fewer restrictions. The court further holds that the U.S. Commerce Clause claim fails, because the contractor presented no proof that the county's intrastate restriction discriminated against out-of-state businesses or unduly burdened interstate commerce.

Counsel for Plaintiff
James A. Yarosh
Winthrop & Weinstine
3000 Dain Bosworth Plaza
60 S. 6th St., Minneapolis MN 55402
(612) 347-0700/339-7131

Counsel for Defendant
William J. Everett
Greene & Espel
1700 Metropolitan Ctr.
333 S. 7th St., Minneapolis MN 55402
(612) 373-0830

Before Ross and Fenner,* JJ.