Gillmor v. Thomas

• Decision Date: 05 June 2007
• Docket Number: No. 06-4124.,06-4124.
• Citation: 490 F.3d 791
• Parties: Nadine GILLMOR, individually and as trustee of the Nadine Fausett Gillmor Trust; Milton O. Bitner Company, a Utah corporation; Evergreen Development, a Utah limited partnership; Ella M. Pace, an individual; Dwayne M. Pace, a trustee of the Dwayne M. Pace Revocable Trust; Joan J. Pace, trustee of the Joan J. Pace Revocable Trust; Gale W. Pace, an individual; Kathleen D. Pace, an individual; and Anderson Development, LLC, a Utah limited liability company, Plaintiffs-Appellants, v. David L. THOMAS; David Allen; Michael Barille; Shauna Kerr; Bob Richer; Kenneth Woolstenhulme; Tom Brennan; Cynthia Callaway; Max Greenhalgh; Bruce Taylor; Donna Van Buren; and Mike Washington, as individuals, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

490 F.3d 791

Nadine GILLMOR, individually and as trustee of the Nadine Fausett Gillmor Trust; Milton O. Bitner Company, a Utah corporation; Evergreen Development, a Utah limited partnership; Ella M. Pace, an individual; Dwayne M. Pace, a trustee of the Dwayne M. Pace Revocable Trust; Joan J. Pace, trustee of the Joan J. Pace Revocable

Trust; Gale W. Pace, an individual; Kathleen D. Pace, an individual; and Anderson Development, LLC, a Utah limited liability company, Plaintiffs-Appellants, v. David L. THOMAS; David Allen; Michael Barille; Shauna Kerr; Bob Richer; Kenneth Woolstenhulme; Tom Brennan; Cynthia Callaway; Max Greenhalgh; Bruce Taylor; Donna Van Buren; and Mike Washington, as individuals, Defendants-Appellees.

No. 06-4124.

United States Court of Appeals, Tenth Circuit.

June 5, 2007.

Bruce R. Baird (Alain C. Balmanno with him on the briefs), Hutchings, Baird, & Jones PLLC, Salt Lake City, UT, for the Plaintiffs-Appellants.

Jody K. Burnett (George A. Hunt and Robert C. Keller, Williams & Hunt; and Steven W. Allred, Woolstenhulme, Kerr and Richer, Salt Lake City, UT, with her on the briefs), Williams & Hunt, Salt Lake City, UT for the Defendants-Appellees.

Before LUCERO, MURPHY, Circuit Judges, and ROBINSON,^* District Judge.

LUCERO, Circuit Judge.

This case presents the latest battle in a legal war being waged by several landowners against Summit County, Utah and its zoning regime. Landowners¹ brought suit against several County Officials² alleging that their administration of Summit County's zoning ordinances constitutes a pattern of extortion in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962. Concluding that County Officials had committed no illegal predicate acts as required to support a RICO claim, the district court granted summary judgment against Landowners and dismissed their case. We AFFIRM.

I

Summit County's zoning scheme is administered by the Board of County Commissioners ("BCC"). BCC Commissioners, of whom there are three, are elected officials who serve four-year terms. In 1995, the BCC passed County Ordinance No. 268, establishing the Snyderville Basin as an independent planning district, and creating the Snyderville Basin Planning Commission ("SBPC"). The SBPC's seven members are appointed by the BCC and serve at that body's pleasure. Although the SBPC has the power to approve some plans, the BCC holds final authority over more complex developments. In 1997, after numerous public hearings were held by the SBPC and the BCC, the BCC adopted County Ordinance No. 321, establishing a new General Plan for zoning in the Snyderville Basin. Following additional public input, the BCC passed a comprehensive Development Code in 1998. Both the General Plan and the Development Code were amended in 2004, but maintain the characteristics with which Landowners take issue.

As codified in the General Plan and Development Code, Summit County employs a "performance zoning" or "incentive zoning" system. Under this system, a relatively low "base density" has been established throughout the Snyderville Basin, generally allowing developments of less than one unit per 20 acres. On lands designated "environmentally sensitive," development is limited to one unit per 40 acres. By maintaining low base densities, the County aims to preserve "a lifestyle that is based principally on mountain, resort, and recreation qualities; and where preservation and stewardship of the Basin's natural resources and scenic qualities are paramount." Concentrated nodes of high-density development are permitted at "appropriate locations."

Overlaying these base entitlements is a "Development Potential Matrix" ("Matrix"), by which:

Summit County will offer reasonable density incentives for projects which further promote the goals and objectives of [the General] Plan, thereby producing tangible community benefits. Density incentives will be considered for appropriate: a) environmental enhancements; b) tax base and economic enhancements; c) transfer of development rights from less desirable development sites to more appropriate sites; d) public facilities and amenities that exceed a specific project [sic] requirements; e) open space that exceed [sic] project requirements; f) restricted affordable housing; and g) compliance with appropriate design principles.

By entering into voluntary development agreements, developers are permitted to build at densities that would not otherwise be permitted-in some cases up to five units per acre. In exchange for density bonuses, local developers have offered a variety of contributions, including: conservation easements, school funding, new public trails, increased open space, wetlands preservation, and new public parks. BCC development agreements typically include a provision forbidding the developer from participating in any legal challenge to the County's zoning ordinances.

Landowners have brought three separate lawsuits challenging the validity of this zoning scheme in Utah state court: Gillmor v. Summit County, No. 040500427; Evergreen Dev. v. Summit County, No. 050500059; and Evergreen Dev. v. Summit County, No. 050500112. On October 3, 2005, they filed a separate, 644-paragraph complaint in federal district court, alleging that County Officials engaged in a pattern of racketeering activity "through the enforcement of illegal and/or invalid general plan and zoning ordinances and other illegal practices, the imposition and collection of illegal school impact fees and the extortion of [transferable development rights], all in violation of 18 U.S.C. § 1962(c)."

In support of this claim, Landowners list 41 predicate acts of alleged racketeering. Several of these alleged predicate acts are voluntary development agreements between the County and various developers by which the County obtained community benefits in exchange for density bonuses. None of the cited agreements involve Landowners. Among the listed predicate acts, only eight incidents involve Landowners:

(1) "Evergreen School Impact Fee Letter"³ —On January 30, 2002, Evergreen Development ("Evergreen") submitted a Sketch Plan Form to the County regarding its proposed Quarry Meadows Subdivision. Sometime thereafter, Chief Deputy County Attorney David L. Thomas met with counsel for Evergreen. Following that meeting, Thomas sent a letter to counsel addressing two issues: Whether the sketch plan resulted in vesting of the 1998 ordinance; and whether the County could restrict the development to fewer than 36 units when it had previously approved a total of 36 unites at a similar development, named Quarry Mountain Ranch. Thomas listed 12 differences between the two developments, including the following: "Quarry Mountain developed a school bus stop. Quarry Mountain is offering a school contribution. These are two different ways of addressing school impacts."

(2) "Gillmor Statement"—In the July 1, 2004 edition of the Salt Lake City Tribune, Thomas is quoted as stating that the County's Development Code "is fair, rational and legal and we will defend it."

(3) "DCD/Evergreen Meeting"—David Allen, Director of the Department of Community Development, Michael Barille, Planning Director of the Department of Community Development, and William Pratt, County Planner, met with Evergreen representatives in February 2003, to discuss the Quarry Meadows application. In that meeting, Allen and Barille explained that in order to develop beyond the property's base density, the developers would likely need to provide additional community and recreational benefits.

(4) Quarry Meadows "Work Sessions"— On April 22, 2003 and again on August 26, 2003, Evergreen representatives met with SBPC and its staff regarding the Quarry Meadows proposal. At both meetings, the commissioners indicated that additional community and neighborhood benefits would be necessary to achieve approval of Evergreen's desired density bonuses. At the first meeting, commissioners also questioned whether Evergreen's proposed school contribution was sufficient to justify its desired density bonuses.

(5) "Quarry Meadows Staff Report"— On August 12, 2003, Pratt forwarded a staff report to the SBPC describing the Quarry Meadows Sketch Plan. The report notes that Allen and Barille raised the following concerns, among others, regarding the proposed development: "the need for more community and neighborhood recreational benefits [and] the removal of major delineated wetlands from proposed lots." It also indicates that these concerns were "addressed by the applicant." Finally, the report describes the proposed community and neighborhood benefits to include public trails, an enhanced stream corridor, and playground/gathering area among other benefits.

(6) "Bitner-Redhawk Letter"—On September 23, 2003, Allen responded to an inquiry from representatives of the Bitner Company regarding the development potential of the "Redhawk" parcel. That letter states:

Without a transfer of density and assuming the design of the project meets all of the eight land use and community benefit criteria outlined in the Development Matrix, the maximum density on Parcel 9 would be 1 unit per 17.5 acres which would be approximately 7 units (this also assumes there are no sensitive lands on the parcel). While this may appear to be low, density, it is my understanding that adjacent parcels in Morgan County are zoned 1 unit per 160 acres.

Hopefully this helps you understand my initial reading of the documents and Development Code as it relates to these two parcels. I would be glad to further discuss this with you if needed.

Landowners do not allege that this statement was inaccurate.

(7) "Pace Meeting"—In the Spring of 2004, Ella M. Pace and a real estate broker representing the Pace family met with Barille and Allen to discuss the development potential of Pace's property. At that meeting, Barille correctly stated that under the Development Code's base-density...