Sundheim v. Board of County Com'rs of Douglas County

• Decision Date: 09 March 1995
• Docket Number: Nos. 93CA1324,93CA1891,s. 93CA1324
• Citation: 904 P.2d 1337
• Parties: John SUNDHEIM and Joann Scoggin Sundheim, Plaintiffs-Appellants and Cross-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, and Suzy McDanal, R.A. "Chris" Christensen and James Sullivan, individually and in their capacities as members of the Board of County Commissioners of Douglas County, Colorado, and Ed Tepe, individually and in his capacity as the Director of Planning and Community Development in Douglas County, Colorado, Defendants-Appellees and Cross-Appellants, and Dorothy Rudd and Robert Rudd, Defendants-Appellees. . V
• Court: Colorado Court of Appeals

Page 1337

904 P.2d 1337

John SUNDHEIM and Joann Scoggin Sundheim Plaintiffs-Appellants and Cross-Appellees, v. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, and Suzy McDanal, R.A. "Chris" Christensen and James Sullivan individually and in their capacities as members of the Board of County Commissioners of Douglas County, Colorado, and Ed Tepe, individually and in his capacity as the Director of Planning and Community Development in Douglas County Colorado, Defendants-Appellees and Cross-Appellants and Dorothy Rudd and Robert Rudd, Defendants-Appellees.

Nos. 93CA1324, 93CA1891.

Colorado Court of Appeals,

Div. V.

March 9, 1995.

Rehearing Denied April 20, 1995.

Certiorari Granted Nov. 14, 1995.

Massey Showalter & Marsh, P.C., Richard A. Marsh, Denver, for plaintiffs-appellants and cross-appellees.

Greengard Senter Goldfarb & Rice, Steven J. Dawes, Kenneth R. Motsenbocker, Denver, for defendants-appellees and cross-appellants.

Unkeless & Bisset, Jennifer Bisset, Denver, for defendants-appellees Dorothy Rudd and Robert Rudd.

Opinion by Judge DAVIDSON.

Plaintiffs, John Sundheim and JoAnn Scoggin Sundheim, appeal from the dismissal pursuant to C.R.C.P. 12(b)(5) of their federal civil rights claims brought under 42 U.S.C. § 1983 (1988) and 42 U.S.C. § 1985 (1988), and from the summary judgment entered in favor of defendants, the Board of County Commissioners of Douglas County, and Suzy McDanal, R.A. "Chris" Christensen, and James Sullivan, individually and in their capacities as members of the Board of County Commissioners of Douglas County, Ed Tepe, individually and in his capacity as the Director of Planning and Community Development in Douglas County, (collectively Douglas County) and Dorothy and Robert Rudd (Rudds), on plaintiffs' claim for invasion of privacy. Douglas County cross-appeals from the denial of its request for an award of attorney fees. We affirm in part, reverse in part, and remand with instructions.

The following facts are set forth in the complaint or are not disputed. Plaintiffs own property in Douglas County which, according to county zoning regulation, may be used for the commercial boarding and training of horses only by special review. The Rudds own property adjacent to plaintiffs' and, as relevant here, opposed the operation of a commercial horse boarding and training business in the area.

In 1990, Douglas County denied plaintiffs' application for a use by special review to board and train hunter/jumper horses commercially. Plaintiffs did not seek judicial review of this denial.

Following reports that a commercial horse boarding and training business was operating on plaintiffs' property, Douglas County hired an investigator who then contacted JayBrooke Training (JayBrooke) through its advertisement in the yellow pages of the telephone directory which listed the Sundheim property as its business address. He spoke with Jennifer Brooke, one of the owners, about boarding some horses and upon her invitation, he made an appointment to visit the operation.

The investigator visited the property, but not on the appointed day. Since Jennifer Brooke was not present, the other owner gave the investigator a tour of the facility, described the services offered, and gave him a copy of the boarding and training contract.

After the investigator relayed this information to Douglas County, it contacted plaintiffs and JayBrooke to inform them that they were in violation of the zoning regulations. JayBrooke moved its business to another location shortly thereafter.

Plaintiffs then filed suit against Douglas County alleging violations of their due process and equal protection rights under the United States and Colorado Constitutions, and against Douglas County and the Rudds alleging conspiracy to deprive them of their civil rights and violation of privacy.

The trial court dismissed the federal and state constitutional claims under C.R.C.P. 12(b)(5) as time barred because they had not been filed within the 30-day time limit for judicial review under C.R.C.P. 106. The trial court also dismissed plaintiffs' conspiracy claim on the basis that they had not alleged a race-based conspiracy.

Douglas County then moved for suspension of discovery based upon its contention that sovereign immunity barred plaintiffs' remaining claim for invasion of privacy. At the same time, Douglas County moved for summary judgment based upon sovereign immunity or, alternatively, on the basis that, according to the undisputed facts, no invasion of privacy had occurred. The Rudds also filed a motion for summary judgment. The trial court granted the motion to suspend discovery as to Douglas County.

Plaintiffs moved for suspension of response to the motion for summary judgment and to conduct discovery on the grounds that they could not defend against the summary judgment motions without conducting discovery. The trial court denied that motion.

Plaintiffs filed no response to the motions for summary judgment and the trial court subsequently granted those motions.

I.

Federal and State Constitutional Claims

Plaintiffs argue that the trial court erred in its determination that their first two claims for relief, brought against the county defendants, were time-barred because they were not brought in a C.R.C.P. 106 action within 30 days of the Douglas County denial of the special use application. We agree in part.

A.

Section 1983 Claims

Because they brought their federal constitutional claims under 42 U.S.C. § 1983, plaintiffs contend that the trial court erred in applying the 30-day limitation for filing an action for judicial review pursuant to C.R.C.P. 106. We agree.

An action for judicial review under C.R.C.P. 106(a)(4) is the exclusive remedy for contesting a zoning decision when the entire zoning ordinance is not challenged and when record review of the county procedure provides an adequate remedy. See Snyder v. City of Lakewood, 189 Colo. 421, 542 P.2d 371 (1975). When only declaratory relief is requested, claims brought under 42 U.S.C. § 1983 effectively merge into the C.R.C.P. 106 claim. Higby v. Board of County Commissioners, 689 P.2d 635 (Colo.App.1984).

If, however, monetary damages are sought, because C.R.C.P. 106 does not provide for a remedy in damages, a separate 42 U.S.C. § 1983 action based upon alleged violations of federal constitutional rights may be maintained. Sclavenitis v. Cherry Hills Village Board of Adjustment & Appeals, 751 P.2d 661 (Colo.App.1988). Such separate action under 42 U.S.C. § 1983 may be brought regardless of the status of any C.R.C.P. 106(a)(4) action. See Luck v. Board of County Commissioners, 789 P.2d 475 (Colo.App.1990); see also Wilson v. Town of Avon, 749 P.2d 990 (Colo.App.1987).

Here, plaintiffs do not seek declaratory or injunctive relief but only monetary damages. The trial court therefore erred by determining that the failure to bring a timely C.R.C.P. 106(a)(4) action incorporating the federal constitutional claims barred the 42 U.S.C. § 1983 claim. Cf. Marino v. Willoughby, 618 P.2d 728 (Colo.App.1980) (although the principle of res judicata bars not only claims previously decided but also all claims which could have been brought in the previous litigation, civil rights claims are not barred if the administrative tribunal which heard the case lacked the authority to consider such claims or to award damages).

B.

However, this does not end our inquiry. Appellate courts, if it is possible, should uphold a correct result, even if the reasoning was incorrect. See Skinner v. Industrial Commission, 152 Colo. 97, 381 P.2d 253 (1963); Dorris v. Gardner Zemke Co., 765 P.2d 602 (Colo.App.1988).

Applying the appropriate standard of review for a motion to dismiss under C.R.C.P. 12(b)(5), we will assume that the material allegations of the complaint are true. See Halverson v. Pikes Peak Family Counseling & Mental Health Center, Inc., 795 P.2d 1352 (Colo.App.1990). With that assumption in mind, we conclude that, although the trial court properly dismissed some of plaintiffs' § 1983 claims, it was not appropriate at this early stage of the proceedings to dismiss them all.

C.

Federal Constitutional Claims

Plaintiffs' 42 U.S.C. § 1983 claim alleges that actions taken by Douglas County "in connection with the denial of [plaintiffs' application] wrongly and discriminatorily deprived [plaintiffs] of their rights to beneficial use of their real property, to due process of law and to equal treatment under and protection of federal constitutional and statutory laws protecting and safeguarding such rights."

1.

Due Process

Plaintiffs' 42 U.S.C. § 1983 claim is based, in part, upon denial of due process. We conclude that dismissal of the claim was proper insofar as the claim is based upon procedural due process but was erroneous insofar as the claim is based upon a denial of substantive due process.

a.

Procedural Due Process

"In order to establish a procedural due process violation, a plaintiff must prove that he or she was deprived of an opportunity ... granted at a meaningful time and in a meaningful manner for a hearing appropriate to the nature of the case." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir.1988); see also Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

When a state affords reasonable remedies to rectify legal errors by local administrative bodies, including avenues of appeal, and when no challenge is raised as to the regulatory or statutory scheme itself, allegations that the local administrative body reached its decision on erroneous reasoning or made demands which exceeded its statutory authority are not sufficient to establish a procedural due process claim. Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.1982); see also Bello v. Walker, 840 F.2d 1124 (3d Cir.1988).

Here, plaintiffs were accorded the opportunity for a public hearing on their application, and they could have availed themselves of a C.R.C.P....