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    United States Court of Appeals, Tenth Circuit

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    1) The document is a court order and judgment from the United States Court of Appeals for the Tenth Circuit regarding a case brought under 42 U.S.C. § 1983 challenging the validity and enforcement of certain Utah County ordinances involving the subdivision of property. 2) The district court had granted summary judgment against the appellants on all claims. The appeals court affirmed the district court's decision on the facial and as-applied constitutional challenges to the ordinances and on the defamation claim. 3) However, the appeals court vacated the district court's grant of summary judgment on the takings claim, finding that the claim was not ripe because the appellants had failed to exhaust state remedies for obtaining just compensation

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    United States Court of Appeals, Tenth Circuit

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    1) The document is a court order and judgment from the United States Court of Appeals for the Tenth Circuit regarding a case brought under 42 U.S.C. § 1983 challenging the validity and enforcement of certain Utah County ordinances involving the subdivision of property. 2) The district court had granted summary judgment against the appellants on all claims. The appeals court affirmed the district court's decision on the facial and as-applied constitutional challenges to the ordinances and on the defamation claim. 3) However, the appeals court vacated the district court's grant of summary judgment on the takings claim, finding that the claim was not ripe because the appellants had failed to exhaust state remedies for obtaining just compensation

    Original Description:

    Filed: 1992-05-08 Precedential Status: Precedential Citations: 963 F.2d 382 Docket: 89-4123

    Original Title

    Leland A. Fitzgerald and Helen S. Fitzgerald v. Utah County, a Body Corporate and Politic of the State of Utah and a Governmental Entity of the State of Utah, Jeff Mendenhall, Gordon Rose, Iva Snell, and John Does 4 Through 20, 963 F.2d 382, 10th Cir. (1992)

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    1) The document is a court order and judgment from the United States Court of Appeals for the Tenth Circuit regarding a case brought under 42 U.S.C. § 1983 challenging the validity and enforcement of certain Utah County ordinances involving the subdivision of property. 2) The district court had granted summary judgment against the appellants on all claims. The appeals court affirmed the district court's decision on the facial and as-applied constitutional challenges to the ordinances and on the defamation claim. 3) However, the appeals court vacated the district court's grant of summary judgment on the takings claim, finding that the claim was not ripe because the appellants had failed to exhaust state remedies for obtaining just compensation

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    31 views4 pages

    United States Court of Appeals, Tenth Circuit

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    1) The document is a court order and judgment from the United States Court of Appeals for the Tenth Circuit regarding a case brought under 42 U.S.C. § 1983 challenging the validity and enforcement of certain Utah County ordinances involving the subdivision of property. 2) The district court had granted summary judgment against the appellants on all claims. The appeals court affirmed the district court's decision on the facial and as-applied constitutional challenges to the ordinances and on the defamation claim. 3) However, the appeals court vacated the district court's grant of summary judgment on the takings claim, finding that the claim was not ripe because the appellants had failed to exhaust state remedies for obtaining just compensation

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    of 4

    963 F.

    2d 382
    NOTICE: Although citation of unpublished opinions remains unfavored,
    unpublished opinions may now be cited if the opinion has persuasive value on a
    material issue, and a copy is attached to the citing document or, if cited in oral
    argument, copies are furnished to the Court and all parties. See General Order of
    November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
    further order.

    Leland A. FITZGERALD and Helen S. Fitzgerald, PlaintiffsAppellants,


    v.
    UTAH COUNTY, a body corporate and politic of the State of
    Utah and a governmental entity of the State of Utah, Jeff
    Mendenhall, Gordon Rose, Iva Snell, and John Does 4 Through
    20, Defendants-Appellees.
    No. 89-4123.

    United States Court of Appeals, Tenth Circuit.


    May 8, 1992.

    Before McKAY, Chief Judge, HOLLOWAY, Circuit Judge, and


    DUMBAULD, District Judge.1
    ORDER AND JUDGMENT2
    McKAY, Chief Judge.

    Appellants challenge a District Court decision granting summary judgment


    against them on claims brought pursuant to 42 U.S.C. 1983. The District
    Court dismissed a number of constitutional challenges to the validity and
    enforcement of certain Utah County Ordinances involving the subdivision of
    property.

    Utah County Ordinance 4-3-52 provides that a subdivision plan or plat cannot
    be recorded until approved by the county planning commission, and no land
    located within a subdivision can be sold until the plat has been recorded. Utah

    state law defines a subdivision as "the division of a tract, or lot or parcel of land
    into three or more lots, plats, sites or other divisions of land for the purpose ...
    of sale or of building development." Utah Code Ann. 17-27-27. This definition
    specifically excludes "a bona fide division or partition of agricultural land for
    agricultural purposes." Id. In recognition of this definitional exclusion, Utah
    County Ordinance 4-3-53 provides for a waiver of the subdivision plat filing
    requirement for property owners who want to subdivide and sell agricultural
    land without recording a plat. In order to receive such a waiver, the property
    owner must record restrictive deed covenants precluding residential or other
    non-agricultural use of the land. Utah County requires such covenants to insure
    that the divided property will not be used for a purpose that would otherwise
    require the recordation of a subdivision plat.
    3

    Appellants subdivided and sold agricultural land without recording a plat or


    obtaining a waiver.3 At the time Appellants instituted their action, they had yet
    to apply for subdivision plat approval for any of the property they divided and
    sold. Appellants brought this 1983 action against Utah County and its
    employees asserting a number of constitutional challenges to the validity and
    enforcement of the Utah County ordinances. The District Court granted
    Appellees summary judgment on all the claims. Appellants now challenge the
    District Court's dismissal of their claims (1) that the ordinances are
    constitutionally invalid on their face and as applied as a violation of due
    process; (2) that the enforcement of the ordinances constituted a taking of their
    property without just compensation in violation of the Fifth Amendment; and
    (3) that Appellees' publication of defamatory statements to purchasers and
    potential purchasers of Appellant's property deprived Appellants of property
    rights without due process of law.

    We review a grant of summary judgment de novo. Applied Genetics Int'l, Inc.


    v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). In doing so,
    we are mindful that "the mere existence of some alleged factual dispute
    between the parties will not defeat an otherwise properly supported motion for
    summary judgment; the requirement is that there is no genuine issue of material
    fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis
    added). We keep this standard in mind in reviewing the District Court's
    disposition of the case at hand.

    Appellants assert that the District Court incorrectly granted summary judgment
    on their claim that the Utah County Ordinances were unconstitutional both on
    their face and as applied to Appellants. The District Court determined that
    Appellants could not meet their burden of establishing that the ordinances are
    arbitrary or capricious, having no substantial relationship to promoting the

    safety, order, prosperity and general welfare of the community. The District
    Court further determined that Appellants failed to show the unavailability of
    adequate state remedies of redress and, thus, could not show a violation of due
    process. After a careful review of the District Court's disposition on these
    issues, we affirm for substantially the reasons stated by the District Court.
    6

    We likewise affirm the District Court's disposition of Appellants' claim that


    Appellees' allegedly defamatory statements deprived Appellants of property
    rights without due process of law. As the District Court correctly noted, mere
    deprivation of a liberty or property interest suffered at the hands of an
    individual acting under color of state law is insufficient to establish a violation
    of the Due Process Clause absent a showing that the deprivation occurred
    without due process. Even assuming for the purposes of this appeal that
    Appellees made defamatory statements thereby depriving Appellants of a
    recognizable liberty or property interest, Appellants failed to show a genuine
    issue of fact existed as to whether such a deprivation occurred without due
    process of law.

    Due process normally requires notice and a pre-deprivation hearing. See Board
    of Regents v. Roth, 408 U.S. 564, 570-71 (1972). An exception exists,
    however, where the deprivation is the result of random and unauthorized
    conduct by state employees rather than an established state procedure. In these
    cases an adequate post-deprivation remedy will satisfy due process. Hudson v.
    Palmer, 468 U.S. 517, 531-33 (1984). The District Court determined that in this
    case it appeared that "a predeprivation hearing would have been impractical
    because it was not a state system or procedure which worked a deprivation of
    plaintiffs' liberty or property interest. Rather, the relevant statements appear to
    be random, unauthorized statements made by employees of Utah County."
    Aplt.App. E at 15. Thus, the availability of post-deprivation state remedies
    would satisfy due process in this case. Appellants failed to point to any law or
    fact indicating the inadequacy of a number of state post-deprivation remedies
    available to them. We agree, therefore, with the District Court that Appellants
    failed to establish at least one essential element of their defamation-plus claim.
    Thus, Appellees were entitled to judgment on this claim as a matter of law.

    We cannot affirm, however, the District Court's disposition of Appellant's


    taking claim. The District Court granted summary judgment against Appellants
    on this issue because, in relevant part, Appellants failed to exhaust state
    remedies. While we agree that Appellants failed to exhaust state remedies of
    their taking claim, we conclude the District court improperly disposed of this
    issue through summary judgment.

    The law is clear that a taking claim is not ripe until all administrative avenues
    for review of the unfavorable zoning decision have been exhausted and state
    procedures for obtaining just compensation have been utilized. See Williamson
    Co. Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186-87
    (1985); Landmark Land Co. of Oklahoma v. Buchanan, 874 F.2d 717, 721
    (10th Cir.1989). Utah state law provides for an appeal to the board of
    adjustment for persons aggrieved by a decision made in the course of
    administering or enforcing zoning regulations. See Utah Code Ann. 17-27-16.
    Utah also provides aggrieved owners a means for obtaining just compensation.
    Article I, Section 22 of the Utah Constitution provides that "[p]rivate property
    shall not be taken or damaged for public use without just compensation." It is
    undisputed that Appellants have not pursued their claims with the board of
    adjustment, nor have they demonstrated that an appeal would be futile or that
    the decision at issue is otherwise final. Appellants have also failed to establish
    that they pursued state procedures for obtaining just compensation.

    10

    Consequently, Appellants' Fifth Amendment takings claim is not ripe until they
    have sought, and been denied, just compensation through state procedures. See
    Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir.1991), cert. den., --U.S. ----, 112 S.Ct. 1174 (1992). Because Appellants' taking claim is premature,
    we must vacate the District Court's grant of summary judgment against
    Appellants on this issue and remand with directions to enter an order dismissing
    the case for lack of subject matter jurisdiction.

    11

    After a thorough review of the briefs and the record we AFFIRM the District
    Court's disposition on all issues raised with the exception of Appellant's Fifth
    Amendment taking claim. With respect to the taking claim, we VACATE the
    District Court's grant of summary judgment and REMAND to the District Court
    for disposition consistent with this opinion.

    Honorable Edward Dumbauld, United States District Judge for the Western
    District of Pennsylvania, sitting by designation

    This order and judgment has no precedential value and shall not be cited, or
    used by any court within the Tenth Circuit, except for purposes of establishing
    the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
    Cir.R. 36.3

    Apparently not all the purchasers were willing to execute covenants precluding
    residential use

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