Onyx Properties LLC v. Bd. Of County Comm'rs Of Elbert County

• Decision Date: 09 February 2011
• Docket Number: Civil Case No. 10-cv-01482-LTB-KLM
• Parties: ONYX PROPERTIES LLC, a Colorado Limited Liability Company; EMERALD PROPERTIES, LLC, a Colorado Limited Liability Company; VALLEY BANK AND TRUST, a Colorado State Bank; PAUL NAFTEL, an individual; and SHAUNA NAFTEL, an individual, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY, Defendant.
• Court: U.S. District Court — District of Colorado

ONYX PROPERTIES LLC, a Colorado Limited Liability Company;EMERALD PROPERTIES, LLC, a Colorado Limited Liability Company;VALLEY BANK AND TRUST, a Colorado State Bank;PAUL NAFTEL, an individual; and SHAUNA NAFTEL, an individual, Plaintiffs,

v.BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY, Defendant.

Civil Case No. 10-cv-01482-LTB-KLM

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Dated: February 9, 2011

ORDER

LEWIS T. BABCOCK, JUDGE

This matter is before me on Motion to Dismiss, filed by Defendant Board of County Commissioners of Elbert County ("Elbert County"), seeking dismissal of this case pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). [Doc #4] Plaintiffs, Onyx Properties LLC, Emerald Properties LLC, Valley Bank and Trust, and Paul & Shawna Naftel, oppose this motion. Oral arguments would not materially assist me in my determination. After consideration of the parties' arguments, and for the reason stated, I GRANT the motion pursuant to Fed. R. Civ. P. 12(b)(6) to the extent that Plaintiffs' assert a violation of substantive due process, but I DENY the motion as to the remaining claims.

I. Background

Plaintiffs are landowners in Elbert County, Colorado, who sought to divide their respective properties into 35-acre parcels for development and sale during the 2004-2006 timeperiod. The two properties/developments at issue are known as Kiowa Creek Estates and Wolf Creek Ranch. Elbert County required both developments to proceed through a re-zoning process. Wolf Creek Ranch was re-zoned to an "A-1" designation on October 27, 2004, and Kiowa Creek Estate was re-zoned to an "A-1" designation on September 20, 2006.

In their complaint, filed in June 2010, Plaintiffs assert claims on behalf of the class-defined as all persons who have, on or after August 28, 1997, submitted an application for an A-1 re-zone or had the A-1 zoning regulations enforced against them-pursuant to Fed. R. Civ. P. 23. The class claims are for violations of their constitutional rights under 42 U.S.C. § 1983, "including, but not limited to, the Fifth and Fourteenth Amendment, " by Elbert County's actions in unlawfully forcing them to re-zone their property, resulting in a taking of property rights without due process of law. Plaintiffs also assert individual claims under 42 U.S.C. § 1983 for the loss of their individual property rights by Elbert County's illegal enforcement of its allegedly invalid zoning regulations. Plaintiffs seek damages as well as injunctive relief enjoining Elbert County "from any further use of their invalid Zoning Regulations against" Plaintiffs and all other members of the public.

In response, Elbert County filed this motion in which it asserts that Plaintiffs' complaint against them should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1), because they have failed to show that their claims are ripe for judicial review. Alternatively, Elbert County asserts that the claims should be dismissed for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

II. Fed. R. Civ. P. 12(b)(1)

Elbert County first argues that Plaintiffs' §1983 claims must be dismissed because theclaims asserted are not yet ripe for judicial review. Whether or not claims are ripe bears on this court's subject matter jurisdiction, under United States Constitution Article III, and therefore ripeness challenges are properly brought as a motion to dismiss under Fed. R. Civ. P. 12(b)(1). See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir. 1995); Bateman v. City of West Bountiful, 89 F.3d 704, 706 (10th Cir. 1996). The plaintiffs bear the burden of establishing that their claims are ripe. See Signature Props. Int'l Ltd. Partnership v. City of Edmond, 310 F.3d 1258, 1265 (10th Cir. 2002).

A motion challenging the court's subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) may be treated as either facial or factual. U.S. v. Rodriguez-Aguirre, 264 F.3d 1195, 1203 (10th Cir. 2001)(citing Holt v. U.S., 46 F.3d 1000, 1002 (10th Cir. 1995)). A facial attack addresses deficiencies in the pleadings and, as such, the court considers only the allegations on the face of the complaint, taken as true and viewed in the light most favorable to the plaintiffs. Id. A factual attack, in contrast, is when a party goes "beyond allegations contained in the complaint and challenges the facts upon which subject matter jurisdiction depends." Id. (quoting Holt v. U.S., supra, 46 F.3d at 1003). In this case it is clear that the motion to dismiss for lack of standing is a facial attack on the complaint, not a factual one, so I accept the allegations in the complaint as true. Id. As a result, I decline Plaintiffs' request to the extent they seek limited discovery and an evidentiary hearing in the event I find unresolved factual issues.

The ripeness doctrine cautions a court against premature adjudication of disputes involving administrative policies or decisions not yet formalized and felt in a concrete way by the challenging parties. The ripeness inquiry is threefold: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interferewith further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Qwest Communications Int'l, Inc. v. F.C.C., 240 F.3d 886, 893-94 (10th Cir. 2001).

Elbert County asserts that Plaintiffs' claims are not ripe. It first argues that the allegations asserted by Plaintiffs constitute claims seeking redress for a regulatory taking under the Consitution's Just Compensation Clause of the Fifth Amendment which mandates that private property shall not be taken for public use without just compensation. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536-37, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)(ruling that the regulation of private property may be so onerous that it violates the Takings Clause of the Fifth Amendment requiring just compensation). Elbert County maintains that Plaintiffs cannot prove that their takings claim is ripe for judicial review in that they cannot meet either ripeness requirement set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). That case held that a takings claim is not ripe (1) until a final decision by the governmental entity is issued and (2) until the claimant seeks and is denied compensation through applicable state proceedings. Id. Plaintiffs do not contest or disagree that a takings claim under the Just Compensation Clause of the Fifth Amendment would not, under the circumstances of this case, be ripe for judicial review. Rather, they maintain that the § 1983 claims set forth in their complaint are not based on an alleged regulatory taking of their property, but instead seek damages for violations of due process only-specifically violations of procedural due process, substantive due process and void for vagueness.

The Plaintiffs' complaint avers that alleged illegal acts by Elbert County have "had theeffect of taking away valuable property rights from [them] without due process of law" and have "deprived [Plaintiffs] the rights, privileges and immunities secured by the Constitution of the United States, including but not limited to the Fifth, and Fourteenth Amendments to the United States Constitution." But, it is clear that Plaintiffs' claims do not seek just compensation for a regulatory taking. Rather, the essence of Plaintiffs' complaint is that Elbert County violated their constitutional rights by improperly enacting and subsequently enforcing illegal or nonexistent zoning laws and regulations against them and other property owners in Elbert County. I agree with Plaintiffs that their complaint raises due process violations, not a regulatory takings claim; to the extent that Plaintiffs are seeking compensation for a regulatory taking, I agree that such claim would be foreclosed by the ripeness test of Williamson County v. Hamilton Bank.

Elbert County next asserts that, under Tenth Circuit authority, Plaintiffs' due process claims are also subject to the ripeness test articulated in Williamson County v. Hamilton Bank. In that case a land developer alleged that the application of zoning laws to his property by the County amounted to a temporary regulatory taking. Id. at 175. In B. Willis, C.P.A., Inc. v. BNSF Railway Corporation, 531 F.3d 1282 (10th Cir. 2008), the Tenth Circuit interpreted the holding in Williamson County v. Hamilton Bank, as follows: "[w]ithout deciding whether such allegations stated a takings or a due process claim, the Supreme Court held that the developer's claim was not ripe for adjudication until the developer obtained a final decision regarding the application of the zoning ordinance and subdivision regulations and utilized state procedures for obtaining compensation for any taking." Id. at 1299 fn. 19 (citing Williamson County v. Hamilton Bank, supra, 473 U.S. at 185-87; Signature Properties Intern. Ltd. P'ship v. City of Edmond, 310 F.3d 1258, 1264-66 (10th Cir. 2002); SK Fin. SA v. La Plata County, Bd. of County Comm'rs, 126 F.3d 1272, 1276 (10th Cir. 1997); Bateman v. City of West Bountiful, supra, 89 F.3d at 706-8). The Tenth Circuit then applied Williamson County v. Hamilton Bank, as follows:

in addition to takings claims, related constitutional claims challenging the state condemnation proceedings will also not be ripe for adjudication until the state or local condemnation proceedings are finally concluded.

B. Willis, C.P.A. v. BNSF, supra, 531 F.3d at 1299 fn. 19. See also Signature Properties v. City of Edmond, supra, 310 F.3d at 1265-68 (addressing substantive due process claim and holding "finality requirements are the same for due process claims and for takings claims").

The Tenth Circuit has also held that "when a plaintiff alleges that he was denied a property...