Crown Point I v. Intermountain Rural Elec. Ass'n

• Decision Date: 10 February 2003
• Docket Number: No. 02-1333.,02-1333.
• Citation: 319 F.3d 1211
• Parties: CROWN POINT I, LLC, a Delaware limited liability company, Plaintiff-Appellant, v. INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION, a Colorado cooperative electric association, and the Town of Parker, Colorado, a Colorado home rule team, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1211

319 F.3d 1211

CROWN POINT I, LLC, a Delaware limited liability company, Plaintiff-Appellant, v. INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION, a Colorado cooperative electric association, and the Town of Parker, Colorado, a Colorado home rule team, Defendants-Appellees.

No. 02-1333.

United States Court of Appeals, Tenth Circuit.

February 10, 2003.

John P. Baker of Shughart, Thompson & Kilroy, P.C., (Jennifer A. Schaffner of Shughart, Thompson & Kilroy, P.C., Denver, CO; and Susan C. Hascall of Shughart, Thompson & Kilroy, P.C., Overland Park, KS, with him on the briefs), for Plaintiff-Appellant.

Corey Y. Hoffmann of Hayes, Phillips, Hoffmann & Carberry, P.C., (Jennifer C. Madsen of Hayes, Phillips, Hoffmann & Carberry, P.C., Denver, CO, with him on the briefs), for Defendant-Appellee Town of Parker.

Patrick B. Mooney of Semple, Miller & Mooney, P.C., (Wendy J. Shea of Semple, Miller & Mooney, P.C., Denver, CO, with him on the briefs), for Defendant-Appellee Intermountain Rural Electric Association.

Before HENRY and McKAY, Circuit Judges, and OBERDORFER,^* District Judge.

OBERDORFER, District Judge.

Crown Point I, LLC appeals the District Court's dismissal of its complaint against Intermountain Rural Electric Association ("Intermountain") and the Town of Parker, Colorado ("Parker"). Plaintiff's claims arise out of Parker's approval of Intermountain's plan to construct an electrical transmission line through Crown Point's property without first holding a public hearing on the matter. Plaintiff argues that this failure violated 42 U.S.C. § 1983, and its procedural and substantive due process rights. The District Court dismissed plaintiff's claims on the grounds that (1) Crown Point did not have a protected property interest sufficient to sustain a due process claim, and (2) Crown Point's due process claims were not ripe for adjudication. We conclude that Crown Point did not have a protected property interest and therefore we affirm the decision of the District Court.

I.

We draw the facts from Plaintiff's well-pleaded complaint. Crown Point I, LLC is the owner of a portion of Crown Point Development, a multi-use development located in the Town of Parker, Colorado. In September 2000, after a series of public hearings, Parker approved the final plat for the Crown Point development which included a sixty-seven million dollar multifamily residential apartment complex on plaintiff's property.

Intermountain Rural Electric Association is a utility company that provides services to Parker and surrounding areas. On March 5, 2001, Intermountain announced its intention to construct a high voltage (115 kilovolt) transmission line in Parker running through open space to the east of plaintiff's property (the "Eastern Route"). This route had no impact on the Crown Point development.

Shortly after Intermountain provided notice, in July 2001, Parker passed an ordinance amending its Land Development Code classifying the construction of a transmission line as a "special use". Parker Municipal Code § 13.04.205(a). The new ordinance required public notice and a hearing prior to the Town Council's approval of such a special use. Id. In response to this ordinance, Intermountain filed a special review application with Parker in July 2001.

Before Parker had an opportunity to hold a hearing or to make a determination regarding the application, Intermountain filed an action against Parker in state court related to the passage of the new ordinance. Intermountain also declared a moratorium on all new electrical services in Parker pending the outcome of that suit. On September 17, 2001, pursuant to a settlement agreement reached between Intermountain and Parker, Parker passed Resolution Number 01-042, waiving the special use review requirement with respect to Intermountain's transmission line. Parker waived the special use review pursuant to a provision in the Land Development Code which allows the Town Council to "authorize waivers from the provisions of this Chapter ... if [such waivers] are deemed by the Town Council to be in the public interest and does not impair the intent and purposes of this Title." Land Development Code § 13.01.100(a).

As a condition of the waiver, Parker required Intermountain to change the route of its proposed transmission line to one that ran along the northern portion of Crown Point's property (the "Northern Route"). The Northern Route placed transmission lines within thirty feet of Crown Point's new apartment complex.¹ Parker passed Resolution 01-042 at an open meeting of the Parker Town Council; however, it held no separate public hearing prior to granting approval of the transmission line.

In order to prevent the construction along the Northern Route, on May 9, 2002, Crown Point filed the present action in District Court alleging that defendants violated its procedural due process rights by failing to give notice and hold a public hearing related to Intermountain's transmission line. Plaintiff amended its complaint on June 13, 2002, adding an allegation that defendants also violated substantive due process rights. Plaintiff requested injunctive relief to prevent the initiation of condemnation proceedings in state court by Intermountain against Crown Point's property, and a declaratory judgment that Intermountain and Parker had violated its due process rights. Plaintiff also requested monetary damages in an amount "to be proven at trial" and attorney's fees and costs pursuant to 42 U.S.C. § 1988.

On June 4, 2002, Intermountain filed a petition in condemnation against Crown Point in Colorado state court seeking to condemn a thirty-two foot wide easement on plaintiff's property.² Crown Point moved for a temporary restraining order in the federal action requesting an injunction to prevent the state court case from proceeding. The District Court denied Crown Point's motion and on July 9, 2002, dismissed its complaint. Crown Point appealed the dismissal and moved for an injunction pending appeal. A motion's panel of this Circuit denied Crown Point's motion for an injunction pending appeal concluding that the District Court "was obligated to abstain from enjoining the state court proceedings under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)." (August 14, 2002, Order, App.451-52.)

II.

We consider two issues on appeal: (1) whether the District Court was required to stay the proceedings based on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) abstention principles, and (2) whether Crown Point has a protected property interest sufficient to support its due process claim.

A. Younger Abstention

The applicability of Younger abstention was not raised by the parties below. However, the issue arose after a motions panel of this circuit determined, sua sponte, that the District Court was required to abstain from granting the plaintiff's request for injunctive relief based on the principles articulated in Younger v. Harris. We have noted that: "While a merits panel does not lightly overturn a decision made by a motions panel during the course of the same appeal, we do not apply the law of the case doctrine as strictly in that instance as we do when a second merits panel is asked to reconsider a decision reached by the first merits panel on an earlier appeal." Stifel, Nicolaus & Co. v Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir.1996) (quoting United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986)); see also Law v. NCAA, 134 F.3d 1025, 1028 n. 3 (10th Cir.1998) ("A decision of a motions panel ... is not binding on the merits panel."). We accord less deference because often, as in this case, "a motions panel's decision ... is tentative because it is based on an abbreviated record and made without the benefit of full briefing and oral argument." Stifel, 81 F.3d at 1544. Events in the state court proceeding occurring after the motions panel made its decision require us to find that Younger abstention is not applicable in this case.

Younger abstention "is the exception, not the rule." Joseph A. v. Ingram, 275 F.3d 1253, 1267 (10th Cir.2002) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992)). In determining whether Younger abstention is appropriate, a court considers whether: "(1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies." Amanatullah v. Colorado Bd. of Med. Exam'rs, 187 F.3d 1160, 1163 (10th Cir.1999) (internal quotations omitted). Once these three conditions are met, Younger abstention is non-discretionary and, absent extraordinary circumstances, a district court is required to abstain. See Seneca-Cayuga Tribe v. Oklahoma, 874 F.2d 709, 711 (10th Cir.1989).

It is clear in this case, that the state court condemnation action is an "ongoing" proceeding for Younger purposes. See Doran v. Salem Inn, Inc., 422 U.S. 922, 929, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (state action is ongoing if the federal litigation is in "an embryonic stage and no contested matter has been decided"). Additionally, there is little doubt that eminent domain proceedings implicate "important state interests" and are "matters which traditionally look to state law for their resolution." See C.R.S. § 29-20-108(1) (The Colorado General Assembly has declared that "the location, construction, and improvement of major electrical and natural gas facilities are matters of statewide concern."); see also Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (noting that eminent domain is "intimately involved with state prerogative"). However, we find that plaintiff does not have an adequate...