Thatcher Enterprises v. Cache County Corp.
| Decision Date | 25 April 1990 |
| Docket Number | No. 88-2123,88-2123 |
| Citation | 902 F.2d 1472 |
| Parties | 1990-1 Trade Cases 69,062 THATCHER ENTERPRISES, et al., Plaintiffs-Appellants, v. CACHE COUNTY CORPORATION, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David R. Daines, Logan, Utah, for plaintiffs-appellants.
Jody K. Burnett (Daniel D. Hill, Snow, Christensen & Martineau and Robert G. Gilchrist, Richards, Brandt, Miller and Nelson, Salt Lake City, Utah, with him on the brief), Snow, Christensen & Martineau, Salt Lake City, Utah, for Cache County, defendants-appellees.
Joseph M. Chambers (David Church, Salt Lake City, Utah, with him on the brief) Harris, Preston & Chambers, Logan, Utah, for Smithfield City, defendants-appellees.
Before SEYMOUR and BALDOCK, Circuit Judges, and THEIS, * District Judge.
Plaintiffs brought this action against Cache County, Utah and certain County Officials (collectively the "Cache County defendants") and Smithfield City, Utah and certain City officials (collectively the "Smithfield City defendants"). Plaintiffs alleged that the Cache County zoning ordinances were invalid and that the County and the City had engaged in restraint of trade. Plaintiffs also asserted a pendent state law claim for removal of certain County officials from office. The district court granted summary judgment in favor of the Cache County defendants and dismissed the Smithfield City defendants under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The court dismissed the pendent claim for lack of jurisdiction. The district court denied the plaintiffs' three motions for summary judgment on the invalidity of the zoning ordinances. Plaintiffs appeal. We affirm.
We review an order granting or denying summary judgment under the same standard applied by the trial court in determining whether summary judgment is proper. United States v. Gammache, 713 F.2d 588, 594 (10th Cir.1983). Summary judgment is proper if the record before the court shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The standard of review of an order granting a motion to dismiss for failure to state a claim is de novo. We apply the same standard as the trial court. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief. Id.
In their original complaint, which named as defendants Cache County and certain County officials, the plaintiffs alleged unconstitutional taking of property, deprivation of due process and equal protection, and the unconstitutionality of the 1970 Cache County zoning ordinance. Plaintiffs sought actual and punitive damages, a declaration that the zoning ordinance was unconstitutional, and injunctive relief. R. Vol I, Doc. 1.
In their amended complaint, plaintiffs added other County officials, the City of Smithfield, City officials, and a state court judge. Plaintiffs challenged the validity of the original 1958 zoning ordinance as well as the 1970 zoning ordinance. Plaintiffs added a claim of restraint of trade against both the Cache County defendants and the Smithfield City defendants and a claim of malfeasance in office against certain Cache County defendants. The only claim alleged against the Smithfield City defendants was the restraint of trade claim. Plaintiffs sought only monetary relief the restraint of trade claim. Plaintiffs also sought the removal from office of certain Cache County officials under the malfeasance in office claim. Plaintiffs again sought declaratory and injunctive relief, in addition to damages, on their remaining claims. R.Vol. II, Doc. 16.
In their amended complaint, plaintiffs alleged that Thatcher Enterprises is the legal owner of 120 acres of property in Young Ward, an unincorporated area of Cache County, Utah. This property has been in the Thatcher family since 1909. Plaintiffs operate a retail and wholesale sewing and fabric business and a general contracting and construction business on a portion of this property. Id.
In 1958, Cache County adopted its first zoning ordinance. Although plaintiffs do not so state in their amended complaint, their property was zoned for agricultural use. See Complaint, R.Vol. I, Doc. 1, p 15. The ordinance was amended and reenacted in 1970. Plaintiffs' property remained zoned for agriculture. The zoning ordinance gave the County the power to grant conditional use permits which would allow a property owner to use his property in a manner otherwise inconsistent with its zoning. R.Vol. II, Doc. 16.
Since no later than 1978, plaintiffs have been aware of the restrictions on their use of their property. In 1978, plaintiffs applied for the rezoning of their land from agricultural to commercial. Plaintiffs participated in subsequent public hearings on the requested zoning change. The request for rezoning was denied and the plaintiffs were granted a conditional use permit allowing them to operate their businesses. The permit imposed certain conditions on plaintiffs' use of their property, including limits on the number of employees and limits on the types of business allowed. Id.
Plaintiffs alleged that Smithfield City, a municipality located in Cache County, lobbied the County to restrain trade. Smithfield City, through its mayor, defendant Robert Chambers, wrote two letters to Cache County Commissioners. The first letter, dated December 29, 1982, provided in pertinent part:
We encourage you to preserve the unincorporated area mainly for agricultural uses and encourage the urban activities in the incorporated areas.
....
Also, we would like to let you know that we presently have fifteen offices or buildings vacant in our commercial zones in Smithfield. We are having difficulty attracting businesses to Smithfield and feel that if the County is opened up for increased development that our problem will be even greater.
We appreciate your willingness to accept concerns and suggestions at this time.
Brief of Smithfield City Defendants/Appellees, Exh. A. The second letter, dated November 29, 1984, provided in pertinent part:
We believe the unincorporated area should be used primarily for agriculture. Residential and commercial development should be located in the incorporated areas.
....
We also believe that commercial & residential uses in the unincorporated area are often incompatible with the surrounding agricultural uses. Preservation of the agricultural land should be a major goal of the county growth management policy.
Id., Exh. B. These letters form the basis of plaintiffs' restraint of trade claim. See R.Vol. II, Doc. 16, pp 52-53.
The plaintiffs' first motion for summary judgment alleged the 1970 Cache County zoning ordinance was invalid because it was neither published nor entered in the County's ordinance book. R.Vol. I, Doc. 7. The district court found as an undisputed fact that the revision was published; plaintiffs do not dispute this fact on appeal. The district court denied the motion for summary judgment but did not address the second issue, whether the zoning revisions were entered at length in the ordinance book. R.Vol. II, Doc. 22, pp. 3-4. Plaintiffs raised this issue again in their third motion for summary judgment.
The plaintiffs' second motion for summary judgment alleged that the original 1958 zoning ordinance was invalid for lack of publication. R.Vol. I, Doc. 8. The district court held that under the version of the statute in effect in 1958, the County did not have to publish the ordinance so long as the ordinance did not take effect for sixteen days after passage. The court found as an undisputed fact that the ordinance did not take effect until sixteen days after passage; therefore, the County was not required to publish the ordinance. The court denied the motion for summary judgment. R.Vol. II, Doc. 22, pp. 1-3. Plaintiffs do not dispute that the ordinance took effect sixteen days after passage.
Plaintiffs' third motion for summary judgment raised a constitutional challenge to Utah's zoning enabling legislation and alleged some thirty-two procedural defects in the adoption of the 1970 Cache County zoning ordinance. The constitutional challenge is based on plaintiffs' reading of Euclid v. Ambler Realty, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) as requiring zoning restrictions in the unincorporated parts of Cache County to be imposed by persons elected solely by inhabitants of the unincorporated areas. R.Vol. II, Doc. 24. The district court did not address whether the Cache County defendants complied with every requirement in passing the 1970 ordinance, finding instead that the plaintiffs' claims were barred by either laches or estoppel. R.Vol. III, Doc. 54, pp. 2-8.
The district court found the following facts to be uncontroverted. Plaintiffs resided in Cache County in 1970 when Cache County published a notice of hearing on proposed zoning changes. A public hearing was held, after which Cache County adopted the zoning ordinance. The County subsequently published a notice that it had passed the zoning ordinance. In 1978, plaintiffs sought and received a variance so that their agricultural land could be used for limited industrial purposes. Since 1978, plaintiffs have been unhappy with the restrictions placed on the use of their land. Plaintiffs filed this action in 1987. Id. at 2-3.
The district court ruled that a zoning ordinance must be challenged within a reasonable time after notice of its enactment or the ordinance cannot be set aside for irregular procedures in its enactment. The court found plaintiffs' delay fatal to their claim. Plaintiffs relied on Carter v. City of Salina, 773 F.2d 251 (10th Cir.1985), arguing that if the ordinance was passed with improper procedures, it was void at its...
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