Norton v. Village of Corrales

• Decision Date: 23 December 1996
• Docket Number: No. 96-2017,96-2017
• Citation: 103 F.3d 928
• Parties: 97 CJ C.A.R. 11 Richard E. NORTON, Carolyn A. Norton, Norco, Inc., Plaintiffs-Appellants, v. CORRALES, VILLAGE OF, a New Mexico Municipal corporation; Corrales Village Counsel; Corrales Planning and Zoning Commission; Tina Dominguez, officially as Corrales Village Clerk; Phil Rios, Village Administrator; Robert Borman, Commissioner; Gary Kanin, Mayor, Village of Corrales; Christina Allen, Councilor; Steve Brand, Councilor, Lawrence Vigil, Councilor; Robert Hasslacher, Councilor; Fred Hashimoto, Councilor; Frank Gonzales, Commissioner; John Callan, Commissioner; Gilbert Lopez, Commissioner; Roberta King, each in their official capacities for the Village of Corrales and individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 928

103 F.3d 928

97 CJ C.A.R. 11

Richard E. NORTON, Carolyn A. Norton, Norco, Inc. Plaintiffs-Appellants, v. CORRALES, VILLAGE OF, a New Mexico Municipal corporation Corrales Village Counsel; Corrales Planning and Zoning Commission; Tina Dominguez, officially as Corrales Village Clerk; Phil Rios, Village Administrator; Robert Borman Commissioner; Gary Kanin, Mayor, Village of Corrales Christina Allen, Councilor; Steve Brand, Councilor, Lawrence Vigil, Councilor; Robert Hasslacher, Councilor; Fred Hashimoto, Councilor; Frank Gonzales, Commissioner; John Callan, Commissioner; Gilbert Lopez, Commissioner; Roberta King, each in their official capacities for the Village of Corrales and individually, Defendants-Appellees.

No. 96-2017.

United States Court of Appeals, Tenth Circuit.

Dec. 23, 1996.

Richard E. Norton, Pro Se.

James A. Cleland, Durango, Colorado, for Plaintiffs-Appellants Carolyn A. Norton and Norco, Inc.

Paul R. Ritzma, Legal Bureau/RMD, State of New Mexico, Santa Fe, New Mexico, and David Mathews, of Mathews and Davis, Rio Rancho, New Mexico, for Defendants-Appellees.

Before BRORBY, RONEY ^* and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiffs Richard E. Norton, Carolyn A. Norton, and Norco, Inc., landowners and developers, brought this action against defendants Village of Corrales, Corrales Planning and Zoning Commission, and various officials, alleging civil rights, antitrust and state law violations in connection with plaintiffs' attempts to gain approval to develop subdivisions within the Village. The district court dismissed with prejudice all of plaintiffs' federal law claims under Fed.R.Civ.P. 12(b)(6), and declined to exercise supplemental jurisdiction over plaintiffs' request for a declaratory judgment on the validity of Village ordinances. Although plaintiffs state the issues differently, ¹ the essence of the appeal is whether plaintiffs have asserted a viable claim of denial of procedural or substantive due process or equal protection rights. ²

I

Plaintiff Richard E. Norton has worked as a developer in the Corrales area for the past twenty years. He and his wife, plaintiff Carolyn A. Norton, formed the plaintiff corporation, Norco, Inc., to engage in the business of land development. The complaint alleged that in the spring of 1992, shortly after some new Village anti-development officials were elected and/or appointed, plaintiffs encountered difficulties in gaining approval for subdivision applications filed with the Planning and Zoning Commission (the Zoning Commission). ³

Plaintiffs' thirty-five-page complaint alleges civil rights violations by defendants based upon the Village's refusal to issue Richard Norton a registration permit to do business in the Village, refusals to accept plats signed by him, and delays in approving land development plats of property owned by plaintiffs. The complaint also alleges that defendants were biased and prejudiced against plaintiffs because they personally disliked plaintiff Richard Norton and plaintiffs' business of providing low to moderate income housing in a community.

From the complaint and defendants' answer it is clear plaintiffs' suit is grounded upon claims that (1) the Village has no right to require Richard Norton to obtain a business registration permit--and if it does, no right to require him to provide a physical address; ⁴ (2) the Village has no right to delay and deny approval of plaintiffs' plats, in part because of a thirty-five-day approval rule set out in N.M. Stat. Ann. § 3-20-7E; ⁵ and (3) plaintiffs have a federal constitutional right to have their development plans evaluated by unbiased Village officials.

Standing in plaintiffs' way on the first two of these claims are Village ordinances 246 (requiring registration of persons proposing to engage in business within the Village), Appellants' App. 69, and 8-2-9(E) (requiring final plats to be approved or disapproved within thirty-five days "of the day that the provisions hereof have been complied with by the developer").

Plaintiffs assert that the ordinances are void for failure to comply with the publication requirement imposed by a New Mexico statute. See N.M. Stat. Ann. § 3-17-3. Defendants deny that they were not properly published, but also assert the publication requirement can be met by posting within the Village when there is no newspaper maintaining an office in the municipality. See id. § 3-1-2J. The district court did not resolve this issue. Plaintiffs assert the district court erred in refusing to consider the validity of the ordinances, because holding the ordinances invalid under state law would make applicable the state statute that plaintiffs rely on to establish their property right to plat approval. This court has stated that when an attack on the validity of a city ordinance "is limited to the claim that the ordinance violates state law[ ] Federal courts do not review such a claim under the jurisdiction conferred by 28 U.S.C. § 1331 [federal question] and the result of error in the administration of state law, though injury may result, is not a matter of federal judicial cognizance under the due process clause of the fourteenth amendment." International Harvester Co. v. City of Kansas City, 308 F.2d 35, 38 (10th Cir.1962), cert. denied, 371 U.S. 948, 83 S.Ct. 503, 9 L.Ed.2d 498 (1963). This is the only case our search found discussing whether a court, exercising federal question jurisdiction, will review the validity under state law of an act passed by a legislature. Although Harvester remains the law of this circuit, the result would be the same whether or not the challenged ordinances were validly adopted.

II

We first consider plaintiffs' due process claims on the assumption the Village ordinances were validly enacted under state law. The entire wording of Village ordinance 246, requiring registration of persons proposing to do business with the Village, is nowhere set out in the record. But there is no federal constitutional impediment to requiring such a registration. See Western and Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981) (right to conduct business may be conditioned by state). At oral argument defendants asserted that the reason for requiring a physical address as part of the registration requirement was to insure Richard Norton had an instate address at which he could be served with legal process. This reason is sufficiently rational to justify the requirement; and it is clear from the pleadings that Norton was repeatedly informed that his failure to provide a physical address was the reason for the denial. Appellants' App. 48. Even if the physical address requirement was not expressly stated in the ordinance, this unwritten addition violates no constitutional right. Further, there was no reason to hold a hearing when Norton refused or was unable to comply; it does not appear plaintiffs requested a waiver of the requirement, they only challenged the requirement's validity.

Plaintiffs' reliance on N.M. Stat.Ann. § 3-20-7E for a due process entitlement to plat approval would be trumped by Village ordinance § 8-2-9(E). That ordinance, like the registration ordinance, is not set out in full in the record. But defendants' answer, unrebutted by plaintiffs, states that the applicable Village ordinance provides "[t]he Planning and Zoning Commission shall approve or disapprove Final Plat within 35 days of the day that the provisions hereof have been complied with by the developer." Village of Corrales Ord. § 8-2-9(E), Appellants' App. 84 (emphasis added). Thus, the Village ordinance does not automatically confer an entitlement to plat approval if not acted upon within thirty-five days; it requires more than mere submission of the final plat. Plaintiffs' complaint indicates that some delays were caused when the Village imposed road requirements that apparently were in the ordinance. See id. at 66, 99. Because plaintiffs did not establish their entitlement to plat approval, their due process claims were properly dismissed on the pleadings.

III

Even if we assume the Village ordinances discussed above were invalid for failure to comply with state law publication requirements, we still must affirm the district court's dismissal of the due process claims.

Plaintiffs do not complain about the registration ordinance because of its effect on Richard Norton's ability to offer his services to others, but because they argue defendants used it as an excuse to delay the approval of plaintiffs' subdivision applications. From plaintiffs' complaint it is clear they had numerous opportunities to appear before the Village planning commission and council to present their arguments. They base their due process claims primarily on the statutory provision that if the planning authority of a municipality does not act to "approve or disapprove" a plat within thirty-five days of its submission it "is deemed to be approved and upon demand the planning authority shall issue a certificate approving the plat." N.M. Stat. Ann. § 3-20-7E. Defendants allege that this state statute, in the absence of a valid Village ordinance altering the requirement, gives rise to a property interest to which substantive due process rights attached. See Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1119 (10th Cir.1991) (some authority in this circuit holds that "in order to present a claim of denial of substantive due process, a plaintiff must allege a liberty or property interest to which due process guarantees can attach").

There is some confusion in the law as to when a person has a property right in a context like that before us. See Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th Cir.1992) (surveying the circuit decisions). We have said in a city zoning case "[a]uthority in this circuit is unclear on what interest is required to trigger substantive due process guarantees." Jacobs,...