Eason v. BOARD OF CTY. COM'RS OF BOULDER

• Citation: 70 P.3d 600
• Decision Date: 27 March 2003
• Docket Number: No. 01CA0631.,01CA0631.
• Parties: W. Robert EASON, Plaintiff-Appellee and Cross-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, Defendant-Appellant and Cross-Appellee.
• Court: Court of Appeals of Colorado

70 P.3d 600

W. Robert EASON, Plaintiff-Appellee and Cross-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF BOULDER, Defendant-Appellant and Cross-Appellee.

No. 01CA0631.

Colorado Court of Appeals, Div. V.

March 27, 2003.

French, Stone & Murphy, P.C., Joseph C. French, David M. Haynes, Boulder, Colorado, for Plaintiff-Appellee and Cross-Appellant.

H. Lawrence Hoyt, County Attorney, David Hughes, Assistant County Attorney, Boulder, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge CASEBOLT.

In this action for damages under 42 U.S.C. § 1983 (2002) and for review of a land use determination under C.R.C.P. 106(a)(4), defendant, the Board of County Commissioners of Boulder County, appeals the judgment in favor of plaintiff, W. Robert Eason. Eason has filed a conditional cross-appeal. We affirm in part, reverse in part, and remand for further proceedings.

In 1988, the County's land use department approved Eason's proposal to operate a self-storage business using semitrailers on property located on North Broadway Street. The department's director sent Eason a letter (1988 letter) stating that the use was permitted under the zoning code and that the semitrailers were not "structures" and therefore were exempted from the application of the Uniform Building Code (UBC). Nevertheless, the letter required Eason to obtain a "building permit," which would serve as a "zoning use permit," the intent of which was to provide a mechanism for site plan review. The letter also required Eason to clean, paint, and tie down the trailers, but gave no deadline for compliance.

In 1989, Eason obtained a building permit, which incorporated the same conditions as the 1988 letter. The permit, which cost in excess of $1,000, contained an expiration date in 1991. Eason thereafter purchased and moved over one hundred semitrailers onto the property and began operating his self-storage business. He did not comply with the other terms of the permit.

In 1993, the department's new director and its building official jointly sent Eason a letter (1993 letter) revoking his "building permit" because he had failed to comply with its conditions. The 1993 letter additionally stated that county zoning and building code policies on the use of semitrailers had changed and that their use for permanent storage was no longer permitted, so that Eason's use was no longer legal and was in violation of the zoning resolution and the UBC. This letter told Eason that he had to remove the trailers within thirty days.

Eason appealed the director's decision to the Board of Adjustment (BOA). That body affirmed, finding that the "building permit" had expired and that the "zoning use permit" was properly revoked for failure to comply with its conditions.

Eason sought review of the BOA decision in the district court under C.R.C.P. 106(a)(4) and also asserted a claim for damages against the County and its officials for violation of his due process rights under § 1983. Ruling on Eason's C.R.C.P. 106(a)(4) claim, the court reversed the BOA decision. The court held: (1) the department had told Eason that the use of semitrailers for self-storage in a commercial zone was a permitted use and was exempt from the UBC; (2) there was no such thing as a "zoning permit," and the department and BOA had no authority to create one in the guise of a building permit with an expiration date; (3) a building permit was not required by law, and thus, the expiration of the building permit was of no legal effect; (4) the department could not destroy Eason's use-by-right under the zoning code; and (5) Eason's failure to comply with the conditions in the 1988 letter and the building permit was of no effect because the department had failed to give Eason proper notice of any violations and an opportunity to cure, and the building permit did not create any authority for the County to avoid this obligation.

Eason then moved for partial summary judgment on his due process claim, asserting in part that the department had failed to give him proper notice and an opportunity to cure. The court agreed, holding the County liable for the director's "implementation of the reinterpretation of the zoning policy as set forth in the ... 1993 letter." The court also determined that the 1993 letter did not comply with due process requirements because the "building permit" did not create any authority for the department to avoid giving Eason notice and an opportunity to cure. The court rejected the County's argument that Eason received due process because he had exercised his right to appeal the director's decision to the BOA, where he had a full hearing. The court stated:

The [department] misapprehend[s] the nature of the defective notice. Having concluded that the building permit was of no effect as a matter of law, it necessarily follows that the notice of the Zoning Administrator's and Building Official's determination was not proper notice as a matter of law. Further, absent proper notice, [Eason] was given no opportunity to correct the violations. Finally, exercising one's right to appeal an erroneous decision predicated on improper notice does not cure the underlying due process violation.

In addition, the court directed the parties to set a trial on damages. Because Eason had continued to operate his business during the proceedings, he asserted only noneconomic damages in the form of mental suffering and emotional distress. The court denied the County's motion asserting that Eason was entitled only to nominal damages because any deprivation that had occurred was justified.

The parties also disputed the period for which Eason could recover damages. The court ultimately determined that he could recover only from November 1993, following his receipt of the 1993 letter, through March 1995, when the court reversed the BOA decision upon C.R.C.P. 106(a)(4) review. That ruling is not at issue in this appeal.

Following trial, the jury returned its verdict in favor of Eason for $150,000. When the trial court entered judgment, it assessed prejudgment interest under § 13-21-101, C.R.S.2002, and this appeal followed.

I. Due Process

The County contends the court erred in granting summary judgment on Eason's § 1983 due process claim. Specifically, the County contends Eason was not deprived of due process because (1) he did not have a protected property interest; and (2) the notice in the 1993 letter of his right to appeal to the BOA, combined with the full evidentiary hearing before the BOA, provided sufficient procedural due process. We disagree.

We review the grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995); Timm v. Reitz, 39 P.3d 1252 (Colo.App.2001).

Summary judgment is appropriate only if the pleadings and supporting documents demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, supra.

To prove a procedural due process claim under § 1983, a plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)

; Hillside Community Church v. Olson, 58 P.3d 1021, 1025 (Colo. 2002). In evaluating a due process claim, a court must consider: (1) whether a property right has been identified; (2) whether governmental action with respect to that property right amounts to a deprivation; and (3) whether the deprivation occurred without due process of law. Hillside Community Church v. Olson, supra.

Here, it is undisputed that the County officials were acting under the color of state law, and the County has not contested its liability for the acts of those officials. Hence, our analysis centers on the remaining issues.

A. Protected Property Interest

The Fourteenth Amendment mandates that a state may not deprive any person of life, liberty, or property without due process of law. The definition of the type of property that is safeguarded by the Fourteenth Amendment has evolved to encompass not only tangible physical property, but also a legitimate claim of entitlement to certain circumscribed benefits. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)

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The identification of those benefits and the "legitimate claim of entitlement" to them is determined not by the Constitution, but largely by state law. Once the state has legislatively created an entitlement and a person can demonstrate a legitimate claim thereto, then the Fourteenth Amendment ensures that a deprivation of that entitlement does not occur absent due process of law. In short, "legislatures create property and courts protect it." Hillside Community Church v. Olson, supra, 58 P.3d at 1025 (quoting Peter N. Simon, Liberty and Property in the Supreme Court: A Defense of Roth and Perry, 71 Cal. L.Rev. 146 (1983)).

Under Colorado law, the right to use property is fully protected by the Due Process Clauses of the federal and state constitutions, but is subject to a proper exercise of the police power. Western Income Properties, Inc. v. City & County of Denver, 174 Colo. 533, 485 P.2d 120 (1971); Sundheim v. Board of County Commissioners, 904 P.2d 1337 (Colo.App.1995), aff'd, 926 P.2d 545 (Colo.1996). Zoning ordinances are generally upheld as valid exercises of the police power to regulate public health, safety, and welfare. See City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244 (Colo.2000)

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While Colorado courts have not directly considered the issue present in this case, courts in...