Bell v. American Fork City, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
NOV 30 1999
PATRICK FISHER
Clerk
CARL BELL; HARRINGTON

SCHOOL FOUNDATION, a Utah
non-profit corporation,
Plaintiffs-Appellants,
v.
No. 98-4215
AMERICAN FORK CITY,

Defendant-Appellee.
(D.C. No. 97-CV-697-J)

(D.Utah)
ORDER AND JUDGMENT
Before SEYMOUR, Chief Judge, BRISCOE and MURPHY, Circuit Judges.

Plaintiffs Carl Bell and Harrington School Foundation appeal the district
courts entry of summary judgment in favor of defendant American Fork City (the
City) on plaintiffs constitutional and state law claims arising out of eminent
domain proceedings instituted by the City with respect to property owned by
plaintiffs. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm the
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
district courts disposition of plaintiffs equal protection and state law claims.
With respect to plaintiffs takings and due process claims, however, we reverse
and remand with instructions to dismiss those claims without prejudice for lack of
subject matter jurisdiction.
I.
This case centers around a parcel of property, known as the Harrington
Property, situated in or near the downtown area of the City. The Harrington
Property, which consists of the Harrington School (apparently the first public
school house opened in Utah), a school administration building, and a parking
lot, is located between City Hall and the Citys Public Safety Building. In late
1993, a Building Expansion Task Force commissioned by the City recommended
that the City acquire the Harrington Property from its then owner, the Alpine
School District, for needed building expansion.
In July 1994, Bell, who was interested in acquiring and commercially
developing the Harrington Property, approached the City Council and presented
his acquisition and development proposal. The City Council allegedly indicated
to Bell it was interested primarily in the parking lot portion of the Harrington
Property, and that he could thus proceed with his acquisition and development
plan for the remaining portion of the Harrington Property.
In apparent reliance on the City Commissions statements, Bell took
2
several steps towards acquiring and developing the Harrington Property. In

particular, he allegedly sold various items of personal property in order to
generate proceeds for the purchase of the Harrington Property. In addition, he
and other individuals formed the Harrington School Foundation (the Foundation),
whose purpose was to hold title to the Harrington Property and oversee its
management and development. Lastly, he allegedly arranged for hundreds of
thousands of dollars worth of donations in money, materials, labor, equipment,
and items of art as an initial and essential step in the development of the
Harrington Property. Plaintiffs Opening Brief at 4. Having taken these steps,
Bell purchased and acquired title to the Harrington Property from the Alpine
School District in December 1994.
On January 11, 1995, the City Council voted to acquire all of the
Harrington Property through the filing of an eminent domain action. The action
was filed in the Fourth Judicial District Court of Utah County on February 13,
1995. Bell responded by filing a motion for summary judgment asserting the
City failed to satisfy the prerequisites for the public taking of property under
Utah law. On September 28, 1995, the state district court presiding over the
eminent domain action granted Bells motion for summary judgment and
dismissed the action. App. at 8. In doing so, the court concluded the City had
abused its power of eminent domain in that, at the time it initiated the action, it
3
had (1) [f]ailed to adopt a clear, well-defined plan, (2) [f]ailed to commission
a feasibility study for use of the premises including traffic studies, capacity
analyses, vehicle or pedestrian courts, parking need studies, (3) [f]ailed to
commission or prepare architectural renderings, schematics, diagrams, or other
illustrations depicting intended use of any portion of Harrington property, (4)
[f]ailed to reestablish at the time eminent domain was authorized, present public
need for th[e] parcel, (5) [f]ailed to establish that the construction and use of
th[e] parcel . . . w[ould] commence within a reasonable time after initiation of
the eminent domain proceedings, (6) failed to appropriate . . . funds for
building renovation or construction, and (7) [f]ailed to request, budget or
appropriate funds to place the subject property into use.
Id. at 16-17.
Although Bell had submitted site plans for the Harrington Property to the
City Council, the Citys attorney allegedly advised the Citys Planning
Commission to take no action on those plans during the pendency of the eminent
domain proceedings. According to plaintiffs, the Citys institution of the eminent
domain proceeding, and its concomitant refusal to act on the submitted site plans,
effectively deprived them of the ability to make any economic use of the
property. Plaintiffs Opening Brief at 5.
On September 4, 1997, Bell and the Foundation filed this action against the
City asserting violations of 42 U.S.C. 1983 and 1985 (deprivation of property
4
without due process of law, deprivation of property without just compensation,

and violation of equal protection rights), as well as state law claims for
defamation, intentional infliction of emotional distress, and interference with
business reputation. The City moved for summary judgment. After hearing
argument on the motion, the district court granted the Citys motion in its
entirety.
II.
Plaintiffs contend the district court erred in granting summary judgment in
favor of defendant with respect to their federal claims.
In reviewing a grant or
denial of summary judgment, we apply the same standard applied by the district
court under Federal Rule of Civil Procedure 56(c).
King v. Union Oil Co. of
Calif. , 117 F.3d 443, 444-45 (10th Cir. 1997). Summary judgment is appropriate
if there is no genuine issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
Turning first to plaintiffs Fifth Amendment takings claim, we conclude it
is not yet ripe and the district court thus lacked jurisdiction to entertain it. In
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson
Because plaintiffs do not discuss the merits of their state law claims in
their appellate pleadings, and have not included in their appendix sufficient
materials to allow us to review those claims, we conclude they have effectively
abandoned those claims.
1
City , 473 U.S. 172, 195 (1985), the Supreme Court held that if a State provides
an adequate procedure for seeking just compensation, the property owner cannot
claim a violation of the Just Compensation Clause until it has used the procedure
and been denied just compensation. Here, the State of Utah has provided an
adequate posttaking remedy, i.e., an inverse condemnation proceeding, which
plaintiffs have yet to utilize.
See , e.g. , Bagford v. Ephraim City , 904 P.2d 1095,
1097 (Utah 1995). Unless and until plaintiffs avail themselves of this remedy,
their takings claim will remain unripe.
See Miller v. Campbell County , 945 F.2d
348, 352 (10th Cir. 1991) (holding that failure to invoke Wyoming inverse
condemnation procedure before seeking federal court relief renders case unripe
for consideration); see also Bateman v. City of West Bountiful
, 89 F.3d 704, 706
(10th Cir. 1996) (whether a claim is ripe for review bears on the courts subject
matter jurisdiction under Article III of the Constitution).
Plaintiffs procedural due process claim, which is based on exactly the
same facts as their takings claim, is similarly precluded by the availability of a
state postdeprivation remedy.
See Rocky Mountain Materials & Asphalt, Inc. v.
Board of County Commrs , 972 F.2d 309, 311 (10th Cir. 1992);
see also Parratt
v. Taylor , 451 U.S. 527, 538 (1981) (the normal predeprivation notice and
opportunity to be heard is pretermitted if the State provides a postdeprivation
remedy).
6
As for plaintiffs equal protection claim, it is unclear from the record

precisely what plaintiffs are claiming, or what evidence they are relying on in
support of this claim. Indeed, because plaintiffs do not discuss the merits of this
claim in their appellate pleadings, we conclude they have abandoned it on appeal.
Plaintiffs motion to submit a supplemental appendix is GRANTED. The
judgment of the district court with respect to plaintiffs equal protection and state
law claims is AFFIRMED. The judgment of the district court with respect to
plaintiffs takings and due process claims is REVERSED and REMANDED and
the district court is directed on remand to dismiss those claims without prejudice
for lack of subject matter jurisdiction.
Entered for the Court
Mary Beck Briscoe
Circuit Judge

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

CARL BELL; HARRINGTON

AMERICAN FORK CITY,

(D.C. No. 97-CV-697-J)

ORDER AND JUDGMENT

Before SEYMOUR, Chief Judge, BRISCOE and MURPHY, Circuit Judges.

several steps towards acquiring and developing the Harrington Property. In

without due process of law, deprivation of property without just compensation,

King v. Union Oil Co. of

See , e.g. , Bagford v. Ephraim City , 904 P.2d 1095,

See Miller v. Campbell County , 945 F.2d

, 89 F.3d 704, 706

See Rocky Mountain Materials & Asphalt, Inc. v.

see also Parratt

As for plaintiffs equal protection claim, it is unclear from the record

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