Bateman v. City of West Bountiful, 95-4041

• Citation: 89 F.3d 704
• Decision Date: 10 July 1996
• Docket Number: No. 95-4041,95-4041
• Parties: Wesley V. BATEMAN, Plaintiff-Appellant, v. CITY OF WEST BOUNTIFUL, a political subdivision of the State of Utah; Carl Johnson, Mayor, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 704

89 F.3d 704

Wesley V. BATEMAN, Plaintiff-Appellant, v. CITY OF WEST BOUNTIFUL, a political subdivision of the State of Utah; Carl Johnson, Mayor, Defendants-Appellees.

No. 95-4041.

United States Court of Appeals Tenth Circuit.

July 10, 1996.

David O. Black of Black, Stith & Argyle, P.C., Salt Lake City, Utah, for Plaintiff-Appellant.

David L. Church of Blaisdell & Church, Salt Lake City, Utah, for Defendants-Appellees.

Before BALDOCK, EBEL, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Wesley V. Bateman ("Bateman") brought this 42 U.S.C. § 1983 action against the City of West Bountiful ("City"), and its Mayor, Carl Johnson, asserting a Fifth Amendment takings claim, due process and equal protection violations, and an equitable estoppel claim under Utah law. The district court held that these claims were not ripe for adjudication because Bateman had neither received a final administrative determination concerning his property, nor had he sought and been denied just compensation from the City under Utah's inverse condemnation procedure. The district court thus dismissed Bateman's claims for lack of subject matter jurisdiction. Bateman now appeals the dismissal of his complaint and we affirm.

I.

In 1973, Bateman purchased a residential lot located at 883 West 400 North in the City of West Bountiful, Utah. ¹ The lot was one of several one-acre lots located on 400 North that were granted conditional use zoning by the City. The conditional use zoning scheme allowed property owners to subdivide their lots into three 1/3-acre portions, with one residence permitted on each portion. Because only one of the three 1/3-acre portions had direct access to 400 North, however, a twelve foot-wide right-of-way provided ingress to, and egress from, the middle and rear portions of the lots. Moreover, because the right-of-way was necessary to provide access to the other two portions of the lot, the normal setback and side yard requirements were waived under the conditional use zoning scheme.

When Bateman purchased his lot in 1973, the front third of the lot (with the frontage on 400 North) came with a residential structure in place. Within a few years, Bateman drew up plans to build a house, garage and workshop on the middle portion of the lot. He obtained a building permit from the City and paid the necessary fees by check. Pursuant to the common and accepted practice at the time, Bateman did not conduct any engineering studies, but rather submitted a plot plan to the City on yellow note paper. Over the next five years, the buildings were constructed in stages. The City was aware of the construction, and periodically sent building inspectors to Bateman's lot. The structures were completed in approximately 1980.

In 1992, Bateman attempted to sell the middle portion of his lot, together with the structural improvements, and listed them with a real estate agent. However, a City officer in the meantime had recorded a Certificate of Noncompliance ("Certificate") with respect to Bateman's property in the county recorder's office. This Certificate indicated that Bateman's property was not in compliance with the setback and side yard requirements of the West Bountiful building ordinance. The Certificate, which is still on file in the county recorder's office, effectively prevents Bateman from selling the subdivided portion of his lot. It also has prevented Bateman from refinancing his property.

Rather than seeking a variance from the City board of adjustment, as was permitted under Utah law, Bateman filed this suit in the United States District Court for the District of Utah, pursuant to 42 U.S.C. § 1983. In his complaint, Bateman alleged that the City had waived the setback and side yard requirements by granting him a building permit pursuant to the conditional use zoning scheme. Bateman further alleged that the setback and side yard requirements as applied to his lot did not substantially advance a legitimate state interest or promote health, safety, or the public welfare. Bateman's complaint asserted a claim under the Fifth Amendment Takings Clause, and claims under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Bateman also asserted that the City was estopped under state law from enforcing the setback and side yard requirements. The City filed a motion to dismiss Bateman's complaint on the ground that the matter was not ripe for adjudication in federal court. The district court granted the City's motion and dismissed the complaint without prejudice. This appeal followed.

II.

The issue whether a claim is ripe for review bears on the court's subject matter jurisdiction under Article III of the Constitution. New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir.1995). Accordingly, a ripeness challenge, like most other challenges to a court's subject matter jurisdiction, is treated as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). Id. at 1499. Ripeness is a question of law, which we examine de novo. Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir.1995). The ripeness inquiry requires the court to evaluate "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Because neither of these factors support the exercise of jurisdiction over Bateman's claim, we affirm the district court's order dismissing the complaint without prejudice.

A.

The district court, relying on Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), held that the takings claim was premature because Bateman failed to appeal the issuance of the Certificate to the City board of adjustment, as was clearly permitted under Utah law. In Williamson, the plaintiff filed a suit similar to Bateman's asserting that a county zoning board's refusal to approve a development plan effected a taking of its property in violation of the Fifth Amendment. Relying on a number of earlier decisions, the Court in Williamson held that a regulatory takings claim is not ripe "until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Id. at 186-87, 105 S.Ct. at 3116 (citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). Applying this general rule, the Court concluded that because the plaintiff had not sought a variance from the County Board of Zoning Appeals, there was no "final decision" for the Court to review, and plaintiff's claim was therefore not ripe. 473 U.S. at 188, 190, 105 S.Ct. at 3117, 3118.

As in Williamson, Bateman's failure to seek review of the City's action under the procedures authorized by state law renders his takings claim unripe. Under the Utah Municipal Land Use Code, a municipal subdivision of the State may enact a zoning ordinance and divide the territory over which it has jurisdiction into various zoning districts. Utah Code Ann. §§ 10-9-401 to 405. The Land Use Code also directs each municipality adopting such a zoning ordinance to appoint a board of adjustment. Utah Code Ann. § 10-9-701. The board of adjustment has the authority to hear and decide: (1) appeals from decisions applying the zoning ordinance; (2) special exceptions to the terms of the zoning ordinance; and (3) variances from the terms of the zoning ordinances. Utah Code Ann. § 10-9-703. The board of adjustment also is empowered to make determinations regarding the existence of "nonconforming uses" if that authority is delegated to it by the legislative body. Id. Thus, under Utah law, the board of adjustment has the authority to make a final determination regarding Bateman's property. Compare Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1575 & n. 9 (11th Cir.1989) (holding that plaintiff was not required to seek a variance from either the zoning commission or the local board of zoning adjustment because neither body had the authority to grant the necessary variance).

The City also has taken no affirmative enforcement action against Bateman in connection with the Certificate of Noncompliance. The Certificate of Noncompliance is merely a preliminary determination made by a functionary zoning inspector that an existing land use is not in compliance with the current zoning regulations. A Certificate prompts a property owner such as Bateman to request a variance or waiver, but is not itself a conclusive determination of the property's status. Thus, any zoning action regarding Bateman's property cannot be final until Bateman seeks a determination from the board of adjustment, as only then will the board of adjustment have had the opportunity to decide whether Bateman enjoys a valid nonconforming use, or whether some other legitimate justification for granting a variance exists. See, e.g., Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1363 (6th Cir.1992) (holding that the city had reached a "final determination" regarding plaintiff's property only after plaintiff unsuccessfully applied to the board of zoning adjustments for a nonconforming use variance).

Bateman argues that he should not be required to seek review from the board of adjustment prior to filing his § 1983 action because § 1983 does not require a litigant to first exhaust administrative remedies. See Patsy v. Florida Bd. of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 2568, 73 L.Ed.2d 172 (1982). This same argument was rejected in Williamson: "The question whether administrative remedies must be exhausted is conceptually distinct ... from the question...