Wilkinson v. Pitkin County Bd. of County Com'rs, 96-1325

• Decision Date: 04 May 1998
• Docket Number: No. 96-1325,96-1325
• Citation: 142 F.3d 1319
• Parties: 28 Envtl. L. Rep. 21,253, 98 CJ C.A.R. 2162 George M. WILKINSON, also known as George M. "Wilk" Wilkinson; Fidelity Trust Building, Inc., an Idaho corporation authorized in Colorado, Plaintiffs-Appellants, v. PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS, and members Jim True, Mick Ireland, Robert Child, Bill Tute, and Wayne Ethridge acting in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1319

142 F.3d 1319

28 Envtl. L. Rep. 21,253, 98 CJ C.A.R. 2162

George M. WILKINSON, also known as George M. "Wilk" Wilkinson; Fidelity Trust Building, Inc., an Idaho corporation authorized in Colorado, Plaintiffs-Appellants, v. PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS, and members Jim True, Mick Ireland, Robert Child, Bill Tute, and Wayne Ethridge acting in their official capacities, Defendants-Appellees.

No. 96-1325.

United States Court of Appeals Tenth Circuit.

May 4, 1998.

Donald M. Ostrander and Ronald E. vonLembke, Denver, CO, for Plaintiffs-Appellants.

John M. Ely, County Attorney, Pitkin County Attorney's Office, Aspen, CO, for Defendants-Appellees.

Before PORFILIO, KELLY and HENRY, Circuit Judges.

PER CURIAM.

Plaintiffs appeal from an order of the district court granting defendants' motion for summary judgment based on the doctrines of res judicata and collateral estoppel. We affirm. ¹

I. Background

Plaintiffs own and seek to develop property, twenty-nine mining claims, in Pitkin County, Colorado, near the City of Aspen. They submitted three different land development applications to defendants, all of which were rejected. Plaintiffs filed two actions in state court, Nos. 89CV24 ("Wilkinson I") and 93CV11 ("Wilkinson II"), challenging denial of the applications for various reasons including inverse condemnation, regulatory taking, and denial of due process and equal protection rights. Plaintiff Fidelity Trust Building, Inc. also filed an action, No. 91-N-2099, in federal district court seeking declarations that its property was a platted subdivision under mining law and, therefore, exempt from county subdivision regulations. The plaintiff also sought a declaration that various zoning regulations and Pitkin County Land Use Code provisions were invalid because they violated due process and equal protection guarantees under the Colorado and United States Constitutions and exceeded defendants' police powers.

In the first state court action, Wilkinson I, plaintiffs filed a seventy-three page amended complaint raising a multitude of federal and state claims against many defendants, including the defendants in this case. In challenging the alleged unlawful regulatory process of the Pitkin County Board of County Commissioners' denial of their rights to develop their property, plaintiffs argued inverse condemnation and the taking of all reasonable economic use of their properties, violation of procedural and substantive due process rights, violation of equal protection rights, arbitrary and capricious conduct by defendants, invalidity of the county's growth policy, public status of a road located on plaintiffs' property, and that the individual mining claims owned by plaintiffs were a platted subdivision. The claims were raised under state and federal constitutions and statutes.

In three separate orders, the state district court dismissed all of the claims. In the first order, as is relevant to the present action, the court noted that plaintiffs had "confessed dismissal" of various federal inverse condemnation, substantive and procedural due process, and equal protection claims and all claims against the individual members of the Board. The state district court dismissed the remaining regulatory takings claims as not ripe for determination and decided that each mining claim is not a separate lot or subdivided plat. In a second order, the state district court dismissed a second state law claim. In its third order, the court concluded that the imposition of the Land Use Code regulations was a valid exercise of police power by the Board. Plaintiffs appealed, and the Colorado Court of Appeals affirmed. See Wilkinson v. Board of County Comm'rs, 872 P.2d 1269 (Colo.Ct.App.1993). The Colorado Court of Appeals concluded that plaintiffs' patented mining claims were not exempt from county subdivision regulations, the application of the challenged provisions of the Land Use Code was not an unreasonable or excessive exercise of the Board's police power, and plaintiffs' inverse condemnation claims were not ripe for review because no final decision had been made on how the regulations would be applied to the property. See id. at 1273-75, 1275-77, 1278-79.

In the second state court action, Wilkinson II, plaintiffs, along with three others, alleged regulatory taking and inverse condemnation under state and federal constitutional law due to the denial of the three land development applications. Plaintiffs contended that defendants consistently denied their development applications and changed regulations during consideration of the applications. They further maintained that defendants denied their ability to economically develop their property. The state district court considered the entire history of the development applications and dismissed all claims. It determined that the restrictions on development did not amount to a taking or inverse condemnation. The court found that the evidence did not show that: (1) defendants designed regulations or acted on the land use applications in order to deny reasonable economic development of the property; and (2) defendants misused their police power or exceeded the permissible bounds for protection of public health, safety or welfare. Plaintiffs did not appeal.

Plaintiff Fidelity Trust Building, Inc., brought suit in federal district court seeking declarations that its mining claims were platted lots and/or subdivisions and that two zoning regulations and certain sections of the Land Use Code were invalid and violated state and federal due process and equal protection guarantees. Taking notice of state court litigation (Wilkinson I and No. 90CV172), ² the federal district court refused to exercise its discretion under the Declaratory Judgment Act, 28 U.S.C. § 2201, and dismissed the case on the grounds that the state courts should decide the issues. The district court further held that any decision on the inverse condemnation claims would be premature and that Fidelity Trust Building, Inc. should either appeal the lack of ripeness decision on those claims in Wilkinson I or wait for its claims to ripen. With regard to the claim that the properties were legally platted lots and subdivided properties, the district court declined to issue a declaratory judgment contrary to the state court's decision in Wilkinson I. The district court found that plaintiff's claims were adequately presented in state court. Therefore, in the interest of judicial economy, the district court dismissed the action. Fidelity Trust Building, Inc. did not appeal.

Plaintiffs then brought the present action in federal court, presenting five claims relating to the land development applications: (1) an "as applied" due process violation under 42 U.S.C. § 1983 alleging arbitrary and capricious conduct by defendants in denying plaintiffs their right to develop the property; (2) a regulatory taking of the property without just compensation under § 1983; (3) an "as applied" violation of equal protection rights under § 1983; (4) an entitlement to attorney's fees pursuant to 42 U.S.C. § 1988 based on the first three claims; and (5) a request for a declaration regarding the separate character of the individual mining claims for purposes of development and conveyance, a claim which plaintiffs state was "subsumed" by the due process and equal protection claims. See Addendum to Appellants' Opening Br. at 11 & n.6. Defendants moved for summary judgment, asserting that these claims were barred by res judicata and collateral estoppel because they had been raised in the prior state and federal court cases. The magistrate judge compared the claims raised in this case with the prior litigation and concluded plaintiffs' first, second, third, and fifth claims were identical to claims made in the prior state court litigation and were barred by the doctrines of res judicata and collateral estoppel. Plaintiffs' fourth claim failed because it was based on the first three claims. Accordingly, the magistrate judge recommended defendants' summary judgment motion be granted. The district court fully adopted the magistrate judge's recommendation. Plaintiffs appealed.

On appeal, plaintiffs argue that the district court erred in granting summary judgment. Plaintiffs contend they challenged the facial constitutionality of the county's regulations in the state court proceedings, whereas they are challenging the unconstitutional application of the regulations in federal court. According to plaintiffs, because the "as applied" causes of action were not previously adjudicated, they are not barred by res judicata or collateral estoppel. Also, plaintiffs argue, citing Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), that res judicata and collateral estoppel do not apply because they could not raise "as applied" due process, equal protection or just compensation claims in federal court until they had brought an inverse condemnation claim in state court. ³ Finally, plaintiffs argue that equity precludes application of either res judicata or collateral estoppel.

II. Analysis

"We review the grant ... of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c)." Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996) (quotation omitted). Summary judgment is appropriate if the pleadings and evidence in the record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See id. We also review the district court's determinations of state preclusion law de novo. See Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220-21, 113 L.Ed.2d 190 (1991).

This court gives full faith and credit to state court judgments. See Strickland v. City of Albuquerque, 130 F.3d 1408, 1411 (10th Cir.1997) (citing 28 U.S.C. § 1738); see also Migra v....