Landmark Land Co. of Oklahoma, Inc. v. Buchanan, s. 85-2458

• Decision Date: 03 May 1989
• Docket Number: 85-2538,Nos. 85-2458,s. 85-2458
• Citation: 874 F.2d 717
• Parties: LANDMARK LAND COMPANY OF OKLAHOMA, INC., an Oklahoma corporation, Plaintiff-Appellant, v. R.E. "Buck" BUCHANAN, in his individual capacity and as Commissioner, County of Oklahoma County; The County of Oklahoma County, an Oklahoma County Government, Defendants, and Dennis W. Beach, in his individual capacity and as City Manager, City of Del City; James H. Nolen, in his individual capacity and as former Mayor, City of Del City; Michael Chavez, in his individual capacity and as Mayor, City of Del City; Elvin L. Miller, Brock Zimmerman, Mike McIlvoy, Randy Dahlke, Steve Wilkerson, and Zack Pierce, all in their individual capacities and as Councilmen, City of Del City; The City of Del City, an Oklahoma municipal corporation; Colonel Ray D. Reaves, in his individual capacity and as Base Commander, 2854th Air Base Group; General Richard A. Burpee, in his individual capacity and as Commanding Officer, Oklahoma City Air Logistics Command, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 717

874 F.2d 717

LANDMARK LAND COMPANY OF OKLAHOMA, INC., an Oklahoma corporation, Plaintiff-Appellant, v. R.E. "Buck" BUCHANAN, in his individual capacity and as Commissioner, County of Oklahoma County; The County of Oklahoma County, an Oklahoma County Government, Defendants and Dennis W. Beach, in his individual capacity and as City Manager, City of Del City; James H. Nolen, in his individual capacity and as former Mayor, City of Del City Michael Chavez, in his individual capacity and as Mayor City of Del City; Elvin L. Miller, Brock Zimmerman, Mike McIlvoy, Randy Dahlke, Steve Wilkerson, and Zack Pierce, all in their individual capacities and as Councilmen, City of Del City; The City of Del City, an Oklahoma municipal corporation; Colonel Ray D. Reaves, in his individual capacity and as Base Commander, 2854th Air Base Group General Richard A. Burpee, in his individual capacity and as Commanding Officer, Oklahoma City Air Logistics Command, Defendants-Appellees.

Nos. 85-2458, 85-2538.

United States Court of Appeals, Tenth Circuit.

May 3, 1989.

Richard G. Carlisle of Herrick, Feinstein, Kansas City, Mo. (Eric J. Groves of Groves, Bleakley & Tague, with him on the brief), for plaintiff-appellant.

Laura E. Frossard, Atty., Dept. of Justice, Washington, D.C. (F. Henry Habicht II, Asst. Atty. Gen., Washington, D.C.; William S. Price, U.S. Atty., Roger W. Griffith, Asst. U.S. Atty., Oklahoma City, Okl., Dorothy R. Burakreis, Robert L. Klarquist, and Albert M. Ferlo, Jr., Attys., Dept. of Justice, Washington, D.C., on the brief), for defendants-appellees Reaves and Burpee.

Margaret McMorrow-Love of Fellers, Snider, Blankenship, Bailey & Tippins, Oklahoma City, Okl. Robert H. Macy, Dist. Atty., Oklahoma City, Okl., for defendant Buchanan.

Edwin F. Garrison of Looney, Nichols, Johnson & Hayes, for defendant County of Oklahoma County, with her on the brief, for defendants-appellees Beach, Nolan, Chavez, Miller, Zimmerman, McIlvoy, Dahlke, Wilkerson, Pierce and City of Del City.

Before SEYMOUR, McWILLIAMS, and TACHA, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiff Landmark Land Company of Oklahoma filed suit against various officials of the City of Del City, Oklahoma, a county commissioner of Oklahoma County, and officers in charge of Tinker Air Force Base alleging a taking of property without just compensation, related constitutional violations, and pendent state causes of action. Landmark appeals an order of the district court dismissing its complaint for failure to state a claim for which relief can be granted. We affirm.

I. BACKGROUND

Landmark alleges, in essence, that between approximately August 1984 and the filing of this suit in June 1985, it was frustrated in its efforts to develop a neighborhood shopping center in Del City by the actions of the City and certain of its officials, a commissioner of Oklahoma County, and two Air Force officers of Tinker Air Force Base. Interpreting the complaint in the light most favorable to Landmark, as we must on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); 5 C. Wright & A. Miller, Federal Practice & Procedure Sec. 1357 (1969), the specific facts are as follows.

In 1982, Landmark's predecessor in interest acquired a piece of property consisting of approximately twenty-eight acres of land located within the boundaries of Del City and Oklahoma County. It successfully filed an application to have the property rezoned from R-1 residential to C-2 commercial in May of that year. In March 1983, Landmark filed a preliminary site plan with Del City, which responded by suggesting a number of changes that would facilitate development of the property.

Over the course of the next year, Landmark filed numerous documents concerning planned development of the property, including revised site plans, applications for grading permits, and a request for a lot split, all of which were either explicitly or tacitly approved by the City. Landmark expended resources in preliminary grading and ditch development, and granted the County an easement over part of its property so that the County could expand an abutting road. Dennis Beach, the Del City city manager, assured Landmark that dedication of this easement would fulfill right-of-way obligations that Del City imposed on commercial developments.

In August or September 1984, some unnamed combination of defendants made known "their mutually agreed intention, to delay, to impede and ultimately to prevent the construction of any further commercial improvements on the subject property." Rec., vol. I, doc. 1, at 1 (Complaint). The apparent vehicle of this conspiracy was the Tinker Air Force Base Air Installation Compatibility Use Zone (AICUZ). The AICUZ is a suggested zoning plan for areas surrounding United States Air Force bases. Landmark's proposed shopping center would be inconsistent with Tinker's AICUZ.

In approximately November 1984, General Richard A. Burpee and Colonel Ray D. Reaves initiated pressure tactics to convince Del City to adopt the AICUZ as a city ordinance. They were assisted in this effort by R.E. "Buck" Buchanan, Commissioner of Oklahoma County. In January 1985, the City Planning Commission began official consideration of the proposed ordinance. The initial hearing was delayed, at Landmark's request, until February 27, 1985. The City Council began considering the ordinance shortly thereafter, but immediately tabled it for 120 days.

Beach informed Landmark that Del City would issue it no building permits pending consideration of the ordinance. ¹ Landmark appealed this decision to the Del City Board of Adjustment. After a hearing, the Board upheld Beach's decision. As a result of Del City's failure to issue permits, Landmark lost two sales of portions of its property, and has been unable to proceed with development. In June 1985, it filed this action against Beach, Buchanan, Burpee, Reaves, and numerous current and former members of the Del City City Council, all in their individual and official capacities, and against the City and County.

Landmark asserts that defendants' collective actions constituted a violation of its rights to procedural and substantive due process guaranteed by the Fourteenth Amendment, a denial of equal protection in violation of the Fourteenth Amendment, a taking without just compensation prohibited by the Fifth and Fourteenth Amendments, and an unspecified illegal conspiracy. Landmark also brings pendent state claims for the violation of the Oklahoma Constitution and for tortious interference with contractual relations. Although the complaint on its face is unclear, Landmark appears to assert its claims against the local officials under 42 U.S.C. Sec. 1983 (1982), and against Burpee and Reaves directly under the constitutional provisions. It prays for injunctive relief and twenty million dollars in damages.

On the defendants' various motions to dismiss for failure to state a claim, the district court held that none of Landmark's claims are ripe under the Supreme Court's holding in Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), and "dismiss[ed] [the complaint] in toto without prejudice." Rec., vol. I, doc. 46 at 4 (Order). We affirm the district court's dismissal of Landmark's takings, substantive due process, and equal protection claims on ripeness grounds. In addition, although we hold the court's application of Williamson County to the procedural due process claim incorrect, we affirm dismissal of this claim because the complaint indicates that the procedural requirements of the Fourteenth Amendment were satisfied.

II. APPEALABILITY

Appellees argue as a threshold matter that because the district court dismissed only the complaint and not the action, its order is not appealable. While dismissal of a complaint, as opposed to an action, is a nonfinal order and therefore not appealable, reviewing courts should "endeavor to scrutinize such orders ... in order to pinpoint those situations wherein, in a practical sense, the district court by its order has dismissed a plaintiff's action as well." Petty v. Manpower, Inc., 591 F.2d 615, 617 (10th Cir.1979) (per curiam). While dismissal of a complaint with leave to amend is not an appealable order, Thompson v. Dereta, 709 F.2d 1343 (10th Cir.1983) (per curiam), a dismissal of a complaint based upon a defect that cannot be cured by amendment is an appealable order. See Chavez v. City of Santa Fe Housing Authority, 606 F.2d 282, 283 (10th Cir.1979); Bragg v. Reed, 592 F.2d 1136, 1138 (10th Cir.1979).

In this case, it is evident from the district court's language and reasoning that it intended to "extinguish[ ] the plaintiff's cause of action." Bragg, 592 F.2d at 1138. Although the court envisioned the possibility that Landmark could bring its cause of action at some point in the future, until that time it would have no cause of action under the court's analysis. We will not strain to interpret the district court's order as merely dismissing Landmark's complaint, and not the action. We therefore conclude that the order is appealable.

III. RIPENESS

The district court held all of Landmark's claims unripe under Williamson County based on the conclusion that "the administrative process at the local and state levels has not been completed and a final determination has not been made." Order at 2. It found this to be an adequate ground for dismissing all of Landmark's claims because "[e]ach claim has as its common denominator the issue of a deprivation." Order at 2-3. We address each of the claims in turn.

A. Takings Claim

A section 1983 inverse condemnation claim under the Fifth and Fourteenth Amendments for a regulatory taking is not ripe "until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to...