Rodgers v. Bd. of Cnty. Comm'rs of Summit Cnty., 12CA0457

Docket NºNo. 12CA0457
Citation363 P.3d 713
Case DateApril 25, 2013
CourtCourt of Appeals of Colorado

363 P.3d 713

Jason L. RODGERS and James R. Hazel, Plaintiffs–Appellants,

No. 12CA0457

Colorado Court of Appeals, Div. IV.

Announced April 25, 2013

Holley, Albertson & Polk, P.C., Dennis B. Polk, Heather S. Hodgson, Golden, Colorado, for Plaintiffs–Appellants

Berg Hill Greenleaf & Ruscitti LLP, Josh A. Marks, Melanie B. Lewis, Boulder, Colorado, for Defendants–Appellees

Opinion by JUDGE WEBB

¶ 1 This case arises from disputes over Summit County's building regulations. Plaintiffs, Jason L. Rodgers and James R. Hazel, a same-sex couple, primarily contend the County treated them differently from heterosexual couples when interpreting and enforcing these regulations.

¶ 2 On appeal, plaintiffs argue that the trial court erred by dismissing two of their claims; entering a directed verdict in favor of the County on their inverse condemnation claim and on three of the four challenged actions within their single 42 U.S.C. § 1983 equal protection claim; and improperly instructing the jury to consider only one challenged action within that claim.

¶ 3 Whether C.R.C.P. 50 allows a trial court to direct a verdict in part, as to some but not all actions or omissions within a single claim against a single defendant, is unresolved in Colorado. Because we conclude that the trial court erred in doing so, we reverse in part and remand plaintiffs' section 1983 claim for retrial. We affirm the orders of dismissal and the directed verdict on the inverse condemnation claim.

I. Background

¶ 4 Plaintiffs built a home in Summit County that included a septic system. Before issuing a certificate of occupancy, County employees inspected this system. They concluded that it did not comply with either the County's regulations or the approved building plan obtained by the previous owner. According to the County, the septic tank was too small and required a subsurface drain that had not been installed. In addition, they found that plaintiffs' subcontractor had damaged wetlands on the property during the septic system installation.

¶ 5 Because winter was approaching, plaintiffs would be unable to fix these problems until spring. The County offered them a temporary certificate of occupancy. It required them to fix the septic system, mitigate the wetlands damages, and post a bond for the estimated costs. When plaintiffs did not post the bond, the County refused to issue a certificate of occupancy. Ultimately, they lost the home in foreclosure.

¶ 6 The trial court dismissed three of the five claims under C.R.C.P. 8 and 12(b)(5). The parties agreed to bifurcate the inverse condemnation from the section 1983 claims. During a bench trial on the inverse condemnation claim, the court entered a directed verdict in the County's favor. After plaintiffs had rested in the jury trial on the section 1983 claim, the court directed a verdict in favor of the County on three out of the four actions on the basis of which plaintiffs asked the jury be instructed that, "taken as a whole, collectively establish[ ] that the County treated them in a discriminatory manner." The jury returned a verdict for the County on what remained of the section 1983 claim.

II. Dismissal

¶ 7 Plaintiffs contend the trial court erred in dismissing their first and third claims for relief. We affirm dismissal of the first claim because plaintiffs failed to plead exhaustion of their administrative remedies under the Colorado Civil Rights Act (CRCA), § 24–34–306, C.R.S.2012. We affirm dismissal of the third claim because they cannot bring a direct action for damages under the Colorado or U.S. Constitutions when other adequate remedies exist.

A. Standard of Review

¶ 8 Review of dismissal of a claim is de novo, accepting all factual allegations in the complaint as true. Monez v. Reinertson, 140 P.3d 242, 244 (Colo.App.2006).

B. First Claim—Discrimination in Connection with Certificate of Occupancy

¶ 9 Plaintiffs' first claim asserts that County officials discriminated against them by

363 P.3d 716

requiring certain actions not required of heterosexual couples before the County would issue a certificate of occupancy. The second amended complaint does not identify the statute underlying this claim. However, because plaintiffs' appellate briefs state that the claim lies under the CCRA, see, e.g., § 24–34–502, C.R.S.2012, the dismissal will be analyzed based on that statute.

¶ 10 Under the CCRA, any person alleging discrimination must file a complaint with the Colorado Civil Rights Commission (CCRC). § 24–34–306(1)(a). "No person may file a civil action in a district court based on an alleged discriminatory or unfair practice ... without first exhausting the proceedings and remedies available ... under [this section]." § 24–34–306(14). The proceedings and remedies include an investigation by the director of the commission, section 24–34–306(2)(a) ; mediation, section 24–34–306(2)(b)(II) ; and a hearing before the commission, a commissioner, or an administrative law judge, section 24–34–306(4).

¶ 11 Plaintiffs point out that they pled compliance with all notice requirements of the Colorado Government Immunity Act (CGIA), section 24–10–102, C.R.S.2012, and "any further attempts to obtain administrative relief would be futile." But the second amended complaint does not allege that they sought any administrative relief from the CCRC before proceeding with a civil action under the CCRA. And at oral argument, their counsel conceded that the CCRC administrative process had never been invoked.

¶ 12 Accordingly, the trial court did not err in dismissing the first claim for failure to plead exhaustion of administrative remedies.

C. Third Claim—State and Federal Constitutional Violations

¶ 13 Plaintiffs' third claim asserts that the County deprived them of their constitutional rights of due process, equal protection, and freedom of association under the U.S. and Colorado Constitutions. The trial court dismissed this claim because their allegations do not entitle them to recover damages through such a direct claim.

¶ 14 Section 1983 provides a remedy for any person who has been deprived of a constitutional right by state action. Before pursuing a direct claim under the U.S. Constitution, a plaintiff must utilize section 1983. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001); see also Webb v. Johnson, 2007 WL 2936647, *3 (D.Colo.2007) (unpublished order). And here, the fifth claim alleges violations of section 1983, based on the same conduct alleged in the third claim. Hence, the direct claim under the U.S. Constitution fails. See White v. Talboys, 573 F.Supp. 49, 50 (D.Colo.1983) ("It is well established that once a claim for relief has been asserted under 42 U.S.C. § 1983, all other direct claims for relief based upon various amendments to the U.S. Constitution are unnecessary.").1

¶ 15 Like the U.S. Constitution, a direct claim for damages will lie under the Colorado Constitution only where no other adequate remedy exists. See Board of County Comm'rs v. Sundheim, 926 P.2d 545, 549, 553 (Colo.1996). Colorado statutes do not include a counterpart to section 1983 with which to enforce the Colorado Constitution.See Brammer–Hoelter v. Twin Peaks Charter Acad., 81 F.Supp.2d 1090, 1098 (D.Colo.2000). But here, plaintiffs could have sought relief for the discrimination alleged under C.R.C.P. 106(a)(4) (abuse of agency discretion) and section 24–10–118(2)(a), C.R.S.2012 (tortious behavior not protected by the CGIA). Therefore, the trial court did not err in dismissing the third claim.

III. Directed Verdict

¶ 16 Plaintiffs next contend the trial court erred in directing a verdict for the County on their inverse condemnation claim and on three of the four actions that form the basis for the section 1983 claim. We affirm the directed verdict on the inverse condemnation claim but reverse the partial directed verdict on the section 1983 claim.

363 P.3d 717

A. Directed Verdict Rule and Standard of Review

¶ 17 A directed verdict is reviewed de novo. Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 186 P.3d 80, 82 (Colo.App.2008). It should be entered only when no reasonable juror would conclude that the evidence presented or resulting inferences could support a verdict against the moving party. Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist., 271 P.3d 587, 590 (Colo.App.2011). The evidence must be considered in the light most favorable to the nonmoving party. Id.

B. Inverse Condemnation

¶ 18 The government cannot take private property for public or private use without just compensation. Colo. Const. art. II, § 15.2 Inverse condemnation is a claim for relief against a regulatory taking. See Animas Valley Sand and Gravel, Inc. v. Board of County Comm'rs, 38 P.3d 59, 63 (Colo.2001). Such a taking occurs when a government deprives a private property owner of the use of land through application of its laws or regulations. Id. ("extensive regulatory interference warrants compensation"). An owner can prove inverse condemnation by showing either a per se taking or a taking under a fact-specific inquiry. Id. at 65 (adopting the test from Palazzolo v. Rhode Island, 533 U.S. 606, 121...

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