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FILED
United States Court of Appeals
Tenth Circuit
December 19, 2006
Elisabeth A. Shumaker
Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JULIAN HATCH, doing business
as Freedom From Religion; LYNNE
MITCHELL, doing business as
Match,
Plaintiffs-Appellants,
No. 04-4124
v.
BOULDER TOWN COUNCIL; BOULDER
PLANNING COMMISSION,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DISTRICT OF UTAH
(D.C. No. 2:01-cv-71-PGC)
Submitted on the briefs:(1)
Budge W. Call, Salt Lake City, Utah, for Plaintiffs-Appellants.
Craig T. Wentz of Christensen & Jensen, P.C., Salt Lake City, Utah, for
Defendants-Appellees.
(1) After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.
TYMKOVICH, Circuit Judge.
Plaintiffs Julian Dean Hatch and Lynn Mitchell are residents of and
property owners in the town of Boulder, Utah. They filed this civil rights
complaint against defendants in January 2001, alleging a plethora of
constitutional violations concerning zoning, permitting and road maintenance
issues. The district court concluded that most of plaintiffs' claims were barred by
res judicata (claim preclusion) based on prior suits filed in the federal district and
Utah state courts. The court further concluded that plaintiffs' remaining claims
should be dismissed for various other reasons, including lack of ripeness,
conclusory allegations, and failure to state a claim under 42 U.S.C. 1983.
Plaintiffs now appeal from the court's order denying their motion for summary
judgment and granting the defendants' cross motion for summary judgment.(1)
Faced with a thirty-eight page, verified first amended complaint containing
sixty-nine separate paragraphs of factual allegations, the district court attempted
to unravel the knot by essentially dividing plaintiffs' lengthy factual allegations
into two pieces. First, it determined that the doctrine of claim preclusion barred
(1) Plaintiffs filed a Rule 59 motion after judgment, which the district court
denied. Their notice of appeal does not purport to appeal from the denial of their
Rule 59 motion.
all of plaintiffs' claims that were based on facts that arose prior to final judgment
in the former actions. Second, it determined that the remaining claims, which
arose after final judgment in the prior actions, could be resolved on the merits.
Unfortunately, this method of applying claim preclusion created certain problems
we cannot resolve on appeal. We must therefore reverse the disposition of some
of plaintiffs' claims, and remand them for further consideration.(2)
Our four-part analysis begins by describing the issues litigated in the two
prior actions. We then set out the applicable Utah and federal law of claim
preclusion. Next, we apply that law to the claims asserted in plaintiffs' current
complaint. Finally, we review the district court's analysis of the claims it found
were not precluded by the prior actions.
I. Issues litigated in prior actions
A. September 26, 1996 1983 Suit
In 1996, Hatch filed a 42 U.S.C. 1983 civil rights suit in Utah federal
district court against Boulder, its mayor, town clerk, and members of its town
council. His complaint charged, among other things, that in June 1995, Boulder
enacted a business license ordinance without complying with Utah's Open and
(2) As an alternative ground for affirmance of the district court's decision,
defendants argue that plaintiffs' claims, arising prior to final judgment, were
actually litigated in the previous actions and hence are now barred either by claim
preclusion or by issue preclusion. The record, however, is insufficient for us to
determine whether plaintiffs' current claims were actually litigated, to the extent
necessary to result in preclusion. Defendants are of course free to re-assert this
argument on remand, with appropriate support.
Public Meetings Act, and that his business, "Freedom from Religion" (FFR),
which had been engaged in selling beer prior to the enactment of this ordinance,
should have been allowed to continue selling food and beer.
Hatch further alleged that the Town Council passed a second ordinance
restricting the sale of alcoholic beverages that limited to two the number of new
class A liquor licenses that could be issued. Hatch contended that the Town
Council failed to comply with the Open and Public Meetings Act when it passed
this ordinance. He also contended that on July 31, 1995, the Town Clerk
approved beer license applications on behalf of other businesses, but not FFR.
On August 10, 1995, the Town Council met and imposed a requirement on
FFR that it obtain approval from the Department of Agriculture and the Health
Department before selling food from its premises. Hatch contended that this
requirement was essentially a pretext to run him out of business. Eventually, on
September 22, 1995, the Council issued FFR a business license, authorizing it to
conduct "Retail sales of food and camping supplies." Aplee. Supp. App., Vol. I
at S-199. Hatch contended that the unjustified delay in issuing him a business
license, and the limited nature of the license ultimately issued, deprived FFR of
"its constitutionally protected property right to maintain its business, which
includes the right to sell beer." Id. at S-200.
Apparently, Hatch later added a claim that Boulder violated his due process
rights by interfering with his business sign.(3) Hatch's claims proceeded to jury
trial.(4) On April 14, 1999, a jury entered a special verdict, finding that the Town
had failed to give Hatch due process in connection with his retail business, his
camping business, and his business of selling beer. It rejected his claim,
however, that the Town had violated due process in connection with the
maintenance of his sign. The jury awarded Hatch a total of $86,000 in actual
damages for these alleged violations. It does not appear that either party appealed
from this verdict.
B. July 12, 1999 Petition for Review
Hatch and Mitchell were petitioners in a "Petition for Review of Decision
on Conditional Use Permits and Request for Injunctive Relief," filed in Utah state
court against Boulder and its Town Planning Commission in 1999. They
requested judicial review of the conditional use permits the Boulder Town
Planning Commission granted on February 10, 1999, to their neighbors and
adjacent land owners, Sam Stout and Rhea Thompson, for their construction
business. They complained that the permits had been granted in an arbitrary,
(3) The record does not contain a copy of this amendment.
(4) In addition to a claim for "civil rights violation" pursuant to 1983, Hatch
included claims for "deprivation of property" and for "assault and battery" against
Larry Davis, husband of the Town Clerk, who allegedly assaulted him during a
Town Council meeting.
capricious, and illegal manner, including the Commission's failure to adopt an
official map setting forth commercial districts and a plan for future development.
The state district court determined that Boulder's zoning ordinance was not
arbitrary, capricious, or illegal, that the commercial designations in the ordinance
were legal and not ambiguous, and that the Town had properly awarded the
challenged conditional use permits. Hatch and Mitchell appealed to the Utah
Court of Appeals, which reversed the district court on the validity of the zoning
ordinance, finding that the Town had failed to present any evidence that a proper
zoning map had accompanied the text of the zoning ordinance when it was
presented to the public and to the Town Council for approval. Hatch v. Boulder
Town Council, 21 P.3d 245, 248 (Utah Ct. App. 2001).(5) In light of this holding, it
found plaintiffs' remaining claims moot. Id. at 249.
II. Law of claim preclusion
A. Claim-splitting principle
Before discussing the specific elements of Utah and federal law of claim
preclusion, we narrow our focus to the key issue in this case. Although plaintiffs
attack the district court's claim preclusion analysis on a number of points, we
perceive the key issue to be whether plaintiffs' current complaint represents an
impermissible attempt to split their claims. Stone v. Dep't of Aviation, 453 F.3d
(5) Plaintiffs incorrectly state in their brief that this decision was reached by
the Utah Supreme Court.
1271, 1278 (10th Cir. 2006) ("A plaintiff's obligation to bring all related claims
together in the same action arises under the common law rule of claim preclusion
prohibiting the splitting of actions.").
The Restatement (Second) of Judgments 24 (1982) enunciates the general
rule concerning "claim splitting":
(1) When a valid and final judgment rendered in an action
extinguishes the plaintiff's claim pursuant to the rules of merger or
bar . . . the claim extinguished includes all rights of the plaintiff to
remedies against the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of which the
action arose.
(2) What factual grouping constitutes a "transaction", and what
groupings constitute a "series", are to be determined pragmatically,
giving weight to such considerations as whether the facts are related
in time, space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the
parties' expectations or business understanding or usage.
(emphasis added).
The question for us, then, is whether the facts that form the basis of
plaintiffs' current claims (the 2002 amended complaint) are part of the same
"transaction" they asserted in the previous actions. This question is determined
by the manner in which the facts constituting the transaction are grouped. As will
be demonstrated, the district court grouped all facts arising prior to the final
judgments in the previous actions as a single transaction.
B. Choice of preclusion law
In the case of a state court judgment, the state law where the judgment was
entered (here, Utah) applies. See 28 U.S.C. 1738 (full faith & credit statute);
Fox v. Maulding, 112 F.3d 453, 456 (10th Cir. 1997) ("We must, therefore,
ascertain what preclusive effect [Utah] would give its own decision before we
may know what effect it should be given in the federal court.") (quotation
omitted). In the case of the 1983 suit, federal law of preclusion applies. Yapp
v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999).
C. Utah claim preclusion law
Under Utah law:
In order for claim preclusion to bar a subsequent cause of
action, a plaintiff must satisfy three requirements:
First, both cases must involve the same parties or their privies.
Second, the claim that is alleged to be barred must have been
presented in the first suit or must be one that could and should have
been raised in the first action. Third, the first suit must have resulted
in a final judgment on the merits . . . . All three elements must be
present for claim preclusion to apply.
Macris & Assocs., Inc. v. Neways, Inc., 16 P.3d 1214, 1219 (Utah 2000).
1. Same parties or their privies
It is uncontested that both plaintiffs were parties to the 1999 Utah action.
This element of claim preclusion analysis is therefore satisfied.
2. Claims that could and should have been raised
Plaintiffs advance three reasons why their claims in this action either could
not or should not have been raised in the earlier, state court action. First, the
suits are not the same cause of action. Second, the action for judicial review they
pursued in state court "does not provide for damages or the relief contemplated
under 1983; and does not provide for the other claims asserted, such as
procedural due process and the right to a meaningful hearing under federal law."
Aplt. Opening Br. at 41. Third, they were not obligated to raise claims that arose
after the filing of their complaint in the earlier action.
Only plaintiffs' first and third arguments have merit and therefore limit the
application of claim preclusion to their claims.
a. Same cause of action
"[F]or the doctrine of res judicata to preclude a subsequent cause of
action . . . the cause of action in the present suit must be identical to the one
brought in the prior suit." Macris, 16 P.3d at 1221. "Identity" does not refer to
an exact identity between the legal theory of the claims brought in the first and
second actions; rather, the question is whether there is an "identity of facts and
evidence between the two claims." Id. Here, the district court was mistaken in
failing to recognize the lack of identity between the facts and evidence underlying
some of the claims raised in the prior state court action and those raised in this
action, a factor that should have prevented the application of claim preclusion.(6)
On remand, therefore, the district court should carefully analyze this element as it
pertains to each of the claims we remand for further consideration.
b. Availability of relief
Plaintiffs' second argument, once appropriately narrowed, is easily
resolved. It is essential to notice the scope of plaintiffs' argument on appeal.
They are not arguing that the limited nature of a proceeding for review of a
conditional use permit under Utah law did not permit them to raise unrelated
claims, such as their claims about hindrance of subdivision development, denial
of a beer license, being excluded from the city library, etc. They simply argue
that their federal constitutional claims pertaining to the conditional use permit
could not have been brought in a petition for review proceeding.
Although the statute under which plaintiffs sought judicial review,
Utah Code Ann. 10-9-1001 (subsequently renumbered as Utah Code Ann.
10-9a-801), does not expressly provide an opportunity to raise federal
constitutional claims, the Utah courts have considered and determined both state
and federal constitutional claims in actions for review of, or challenging,
municipal land use decisions. See, e.g., Anderson v. Provo City Corp., 108 P.3d
(6) Claims to which claim preclusion does not appear to apply for this reason
include plaintiffs' complaint about subdivision development (complaint, 10-12);
their complaint about conveyance of the adjacent cul-de-sac (complaint, 62);
plaintiff Mitchell's complaint about licensing issues (complaint, 12-14, 63); and
Mitchell's complaint about exclusion from the Town library (complaint, 42).
701, 707-09, 710 (Utah 2005) (addressing state equal protection and federal
right-to-travel claims); Patterson v. Am. Fork City, 67 P.3d 466, 473-76
(Utah 2003) (considering federal equal protection and due process claims).
Plaintiffs rely specifically on Utah Code Ann. 10-9a-801(3)(a)(ii), which states
that "the courts shall . . . determine only whether or not the decision, ordinance,
or regulation is arbitrary, capricious, or illegal." (emphasis added). The district
court reasoned that this language refers only to the standard of review, and does
not limit the type of ancillary, constitutional matters that a court conducting a
review of a municipal land use decision may consider. We agree.
c. Filing date and claim-splitting
The district court found that plaintiffs could have and should have included
in the Utah case all of their claims that arose from facts that occurred prior to the
resolution of the Utah state court proceeding. See Aplt. App. at 450 (emphasis
added) ("To the extent[] that a few of plaintiffs' federal 1983 claims arise from
alleged facts occurring subsequent to the resolution of the state court action, such
claims are not precluded under the court's claim preclusion analysis."). This
finding, however, does not follow from the applicable Utah law.
In Macris, 16 P.3d at 1219, the defendant argued that the plaintiff's claims
were barred by claim preclusion because they had not been included in a prior
action, and the plaintiff "knew of its claims against [defendant] before the trial in
Macris I began and should therefore have amended its complaint in that action
and asserted the claims now pursued in the present action." Id. (emphasis in
original). The Utah Supreme Court rejected this argument, holding instead that
"a plaintiff need only include claims in a suit for res judicata purposes if the
plaintiff was aware of the facts upon which the later claims were based at the time
the first suit was filed." Id. at 1220 (emphasis added).
Plaintiffs filed their Utah state court action on July 12, 1999. Thus, any
causes of action based on facts that occurred after that date need not have been
included in the case for claim-preclusion purposes. This differs from the district
court's conclusion, which would have barred any claims that arose prior to
November 10, 1999, when the state court ruled in favor of plaintiffs on their
claims. Although this is a difference of only four months, it is a difference
required under Utah law.
3. Final judgment on the merits
Plaintiffs also contend that the prior state proceeding did not result in a
final judgment on the merits of their claims. The Utah Court of Appeals, after
ruling in plaintiffs' favor on the invalidity of Boulder's zoning ordinance, stated
"[t]he ordinance's invalidity renders moot [plaintiffs'] other claims." Hatch,
21 P.3d at 249. Defendants argue that this is in fact a "judgment on the merits,"
as to the invalidity of the zoning ordinance claim. Plaintiffs argue, however, that
since the prior judgment did not adjudicate their other claims on the merits
(it merely found them moot), the judgment cannot have a preclusive effect on the
claims that the court found moot, or any other claims they might have raised.
Had the state court resolved plaintiffs' claims entirely on mootness
grounds, there would be no final judgment from which claim preclusion could
result, because Utah follows the general rule that a dismissal for lack of
jurisdiction does not bar another action by the plaintiff on the same claim. Snyder
v. Murray City Corp., 73 P.3d 325, 332-33 (Utah 2003); Gibson v. Utah State
Teachers' Ret. Bd., 105 P.2d 353, 355 (Utah 1940). See also Restatement
(Second) of Judgments 20(1)(a). A final judgment that found some claims
moot, however, and resolved at least one of them on the merits, is different. The
final judgment here, on one of plaintiffs' claims, satisfied the requirement of a
final judgment for claim-splitting rules. We believe the Utah courts would
conclude that the judgment had a preclusive effect as to any claims that should
have been brought, but were not.
4. Conclusion
The disposition of the prior state court action bars Hatch and Mitchell from
bringing any claim involving identical facts or evidence that arose prior to the
filing of their Utah state court action on July 12, 1999.
D. Federal law of claim preclusion
If the judgment reached in the prior federal suit only barred claims that
accrued prior to the filing of Hatch's September 1996 complaint, it would not
preclude any of plaintiffs' claims. Since the district court broadly determined
that the judgment also barred any claims that could have been raised prior to the
April 1999 final judgment in the prior suit, however, we discuss the relevant law,
to permit the district court to apply the law more narrowly on remand.
Under federal law, the application of claim preclusion requires that three
elements be satisfied: "(1) a judgment on the merits in the earlier action;
(2) identity of the parties or their privies in both suits; and (3) identity of the
cause of action in both suits." Yapp, 186 F.3d at 1226. The district court
correctly noted that the prior federal court judgment involved only Hatch and
therefore did not preclude any claims by Mitchell in this case. The only
meritorious argument that Hatch makes pertains to the third element: whether the
cause of action sought to be precluded is identical with that raised in the prior
action.
Hatch makes two arguments on this point. First, he argues that "[t]he
actions alleged by Hatch in this case could not have been raised in Hatch I [the
1983 suit], because they occurred after September 1996 when Hatch I was
filed." Aplt. Opening Br. at 38. Second, he argues that the only "issues" actually
presented in the first case were those involving Hatch's business license for beer
sales and camping in 1995, and the destruction of his sign in 1995. In other
words, Hatch asserts that the causes of action now advanced are not identical with
those that were litigated in the prior action, and that therefore claim preclusion
should not apply.
1. Arising after September 1996 filing date
This circuit has adopted the transactional test contained in the Restatement
(Second) of Judgments 24. Yapp, 186 F.3d at 1227. "The transactional
approach provides that a claim arising out of the same `transaction, or series of
connected transactions' as a previous suit, which concluded in a valid and final
judgment, will be precluded." Id. "What constitutes the same transaction or
series of transactions is `to be determined pragmatically, giving weight to such
considerations as whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their treatment
as a unit conforms to the parties' expectations or business understanding or
usage.'" Id. (quoting Restatement 24).
Just as in the case of Utah state preclusion law, a question is presented
under federal claim preclusion law about the cutoff date for Hatch's responsibility
to add all available claims to his prior complaint. The district court concluded
that the April 14, 1999, judgment in the prior 1983 suit precluded any claims
based on facts that were available to Hatch before that date. Aplt. App. at 444
("To the extent that the complaint in this case raises federal claims by Hatch
based on facts occurring prior to the conclusion of his previous 1983 action,
such claims are dismissed with prejudice." (emphasis added)). The question,
however, is not whether the claims raised in Hatch's new complaint are based on
facts that occurred prior to the conclusion of his previous action. Instead, it is
whether the new claims arose out of the same transaction as the claims in the
prior action, and should therefore have been included in the prior action.
Under the transactional test, a claim should not be precluded merely
because it is based on facts that arose prior to the entry of judgment in the
previous action. See Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir.
2000) (stating in dicta "we agree with those courts holding the doctrine of claim
preclusion does not necessarily bar plaintiffs from litigating claims based on
conduct that occurred after the initial complaint was filed" in the previous suit.).
The filing of the plaintiff's complaint frames the scope of litigation, establishing
a transactional nexus into which facts and claims are fitted or excluded for
purposes of claim preclusion. "New" claims, arising after the complaint has been
filed, but before judgment, may be excluded from this transactional nexus, and
thus be litigated in a subsequent action. As the Second Circuit has explained:
For purposes of res judicata, the scope of litigation is framed by the
complaint [in the prior action] at the time it is filed. The res judicata
doctrine does not apply to new rights acquired during the action
which might have been, but which were not, litigated. Although a
plaintiff may seek leave to file a supplemental pleading to assert a
new claim based on actionable conduct which the defendant engaged
in after a lawsuit is commenced, he is not required to do so.
Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369-70 (1997) (citations
and quotation omitted). See also Mitchell, 218 F.3d at 1202-03 (suggesting, in
dicta, that this court would follow Second Circuit's approach; and collecting
cases).(7) See also, e.g., Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 530
(6th Cir. 2006) (following majority rule that "the opportunity to file a
supplemental complaint [to allege ongoing alleged wrongdoing] is not an
obligation"); 18 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,
Federal Practice & Procedure 4409, at 213 (2d ed. 2002) (same).
This does not mean, however, that a plaintiff can avoid supplementing his
complaint with facts that are part of the same transaction asserted in the
complaint, in the hope of bringing a new action arising out of the same
transaction on some later occasion. Under the transactional test, a new action will
be permitted only where it raises new and independent claims, not part of the
previous transaction, based on the new facts. See Storey v. Cello Holdings, LLC,
347 F.3d 370, 384 (2d Cir. 2003) ("Where the facts that have accumulated after
the first action are enough on their own to sustain the second action, the new
facts clearly constitute a new `claim,' and the second action is not barred by
(7) Hatch's lack of any obligation to supplement his complaint with new and
independent claims based on facts accruing after the complaint was filed should
be distinguished from his duty to supplement with claims arising from the same
transaction that matured (due to completion of an administrative process, for
example) after the filing of his complaint. See Stone, 453 F.3d at 1278-79.
res judicata.") (emphasis added).(8) Thus, any claims that Hatch now asserts that
are part of the same transaction asserted in his previous complaint should be
precluded, while new and independent claims may go forward.
We further note that even if Hatch has raised a new and independent claim,
this claim could still be precluded, if it falls under one of several exceptions to
the rule that only claims related to the existing transaction are precluded. Such
exceptions arise, for example, where the judgment entered in the prior action
(1) incorporated a settlement intended to govern future, related transactions
between the parties, see 18 Wright, Miller & Cooper, Federal Practice &
Procedure 4409, at 220; (2) resolved claims for declaratory or injunctive relief
dealing with conduct persisting through trial or into the future, see id. at 221; or
where (3) "the object of the first proceeding was to establish the legality of the
continuing conduct into the future," id. at 232; see also Monahan v. N.Y. City
Dep't of Corr., 214 F.3d 275, 288-89 (2d Cir. 2000).
2. Identity with previous causes of action
Hatch's second argument, that his new causes of action are not "identical"
to those previously litigated, is also governed by the transactional test. The
(8) As a leading commentator explains, "[a] subsequent action that simply
alleges new facts in support of claims asserted in a prior action will usually not
avoid application of the claim preclusion doctrine. However, if such [new] facts
in themselves establish independent grounds for a claim against the defendants in
the previous action, claim preclusion does not apply." See 18 James William
Moore, Moore's Federal Practice 131.22[1], at 131-55 (3d ed. 2006) (emphasis
added).
causes of action need not be "identical" in the sense that they raise the same
claims based on the same facts. All that is required is that they arise "out of the
same `transaction, or series of connected transactions' as [the] previous suit."
Yapp, 186 F.3d at 1227. This also is a matter for the district court to resolve on
remand.
3. Conclusion
On remand, the district court should therefore consider whether the facts on
which Hatch bases his new claims are part of the same transaction as those
asserted in his previous complaint, or whether they give rise independently to a
new claim. If the new claim is independent, the district court should consider
whether any of the above-mentioned exceptions applies to the prior judgment in
favor of Hatch. If the claims are not part of the same transaction and if no
exception applies, then only those claims that accrued prior to the filing of
Hatch's complaint, in September 1996, should be considered precluded in the
current action by the prior 1983 suit.
III. Application
We review the district court's application of the substantive law of claim
preclusion de novo. Wilkes v. Wyo. Dep't of Employment, 314 F.3d 501, 503
(10th Cir. 2003). The court concluded that plaintiffs were not precluded from
bringing claims based on the factual allegations contained in paragraphs 57-61
and 66-69 of their complaint. It further concluded that plaintiffs' claims based on
the remaining paragraphs of their complaint were barred by claim preclusion
principles. We conclude that the following claims were precluded by the
judgment reached in the prior state action, filed in July 1999:
A. Land Use Ordinance (complaint 14-19; 22; 24-30; 49; 51;
54-61; 66)
Plaintiffs contend that defendants illegally passed an unconstitutional land
use ordinance (LUO) to restrict their use and enjoyment of their properties, and
enforced the ordinance in an arbitrary and capricious manner. Specifically,
plaintiffs complain that the LUO, adopted May 29, 1998, designates their
properties (containing existing commercial development) as residential areas,
restricted to single family houses. They claim that the LUO does not permit them
to obtain a conditional use permit for commercial use, does not allow any
variances, and contains no provision for appeal. Finally, they assert that there is
no actual, designated commercial zone in the town of Boulder to which they can
relocate their businesses.
Plaintiffs also assert that the May 1998 LUO was defective (among other
reasons) because it was not accompanied by a map. They complain that the
Boulder Planning Commission made changes to the LUO, without proper notice
to plaintiffs or to the public. They further complain that they were not permitted
to appeal to the Board of Adjustment from decisions made at two November 1998
Town Council hearings that modified the LUO. Finally, plaintiffs contend that on
March 8, 2000, the Town adopted a new LUO, which states that "no actual
Commercial zone physically exists," Aplt. App. at 35, and that any commercial
development would require a conditional use permit. They claim that this
effectively foreclosed their ability to develop their properties, because no
conditional use permits are permitted in their zone for commercial use, and
because non-conforming uses are no longer permitted under the LUO.
A major portion of this claim is precluded by plaintiffs' prior state court
action. Plaintiffs should have raised their existing zoning issues with Boulder at
the same time as they raised their complaints about the issuance of conditional
use permits. Their complaint about the permits in 1999 rested on the same types
of assertions of illegalities by the Town that they complain of now. The only
exception appears to involve the Town's actions in March 2000, concerning the
revised LUO, which could not have been raised in the prior action.
B. General Plan Map (complaint 16-19; 22; 47)
Boulder adopted a General Plan in December 1997, using an existing use
map that had been designated for official use by the Town in connection with the
Plan. Plaintiffs contend that the designation of this map violated Utah statutes.
Plaintiff Mitchell complains that she attended a Boulder Planning
Commission Meeting on January 22, 1998, at which she discovered that the
General Plan Map had been "colored in" showing existing commercial properties.
Plaintiffs' properties, however, had not been colored in as existing "commercial"
properties.
On January 28, 1998, plaintiffs made a request to purchase a copy of the
General Plan Existing Use Map. Boulder responded on February 10, 1998, stating
that the map would need to be copied, but that this would be difficult because it
was a large map. Plaintiffs sent letters to various defendants on March 3,
March 15, and May 27, 1998, concerning the map problems and the failure to
renew their business licenses. These letters were not answered.
Plaintiffs state that at the February 10, 1999, Planning Commission
meeting, the Commission reviewed a different map, also known as the "Boulder
Town Existing Land Use Map," created by the Five County Government
Association in January 1999. This map showed plaintiffs' properties as existing
commercial use. The Commission, however, refused to adopt this map because
the Town Council stated it was incorrect.
Plaintiffs' "General Plan Map" claims are precluded by the prior state court
action. This is true for the same reasons we have stated in connection with the
new LUO claims. The General Plan Map allegations could have and should have
been raised at the same time as the conditional use permit claims in their prior
state court action, filed in July 1999.
C. Boulder Excavating Company (complaint 31-41; 43-46; 50;
52; 65; 67-68)
Plaintiffs complain that since September 1998, Boulder has permitted
Boulder Excavating Company (BEC), a heavy construction business with
buildings and a storage yard, to be located next to plaintiffs' property in the
medium-density residential district, notwithstanding the Town Council's refusal
to designate Mitchell's property as existing commercial on the General Plan map.
Plaintiffs also complain that BEC was permitted to erect business signs,
notwithstanding a lack of sign permits, and was granted a business license in
November 1998, notwithstanding the lack of a conditional use permit.
On February 10, 1999, the Planning Commission granted conditional use
permits to BEC. Plaintiffs assert that the Commission did not fully address their
issues, and that the few limitations placed on the permit have not yet been
implemented. Plaintiffs filed an appeal from the grant of the permits with the
Town Clerk. They complain that the Commission permitted BEC to continue its
operations even though their appeal was pending. They further contend that
although they filed a government records request for the permits, they did not
receive copies of the permits until after the appeal period had expired. Plaintiffs
state that when they received the permits, they discovered that Boulder had
waived items required by the LUO, without any discussion at the meetings,
effectively sandbagging their appeal.
On June 1, 1999, Boulder mailed plaintiffs notice of a Town meeting set for
the next day, at which their appeal of BEC's conditional use permit would be
discussed. Plaintiffs were out of town, did not know that their appeal would be
discussed, and were unable to attend the meeting. BEC's attorney was permitted
to speak about the appeal, in plaintiffs' absence.
Plaintiffs were permitted to tell their side of the story at a June 17, 1999
Town meeting, at which BEC's attorney was not present. They complain,
however, that copies of the LUO, the zoning map, and the General Plan existing
use map were not available at the meeting. The Town Council denied plaintiffs'
appeal and upheld the Planning Commission's decision to issue BEC conditional
use permits.
Plaintiffs complain that on July 14, 1999, BEC filed a building permit
application to construct a building to house a company backhoe and other
equipment. They contend that the permit application was defective because it was
not properly filled out for a commercial building, but that the Town Building
Official nevertheless allowed the construction to go forward. They also complain
that the building was built in a public right of way blocking the street leading to
the Mitchell property.
Plaintiffs contend that the Town, knowing that their LUO had been
declared unconstitutional by the Utah Supreme Court and that a new LUO was
about to be passed, contacted BEC and obtained applications from them for a
wide variety of businesses, including an RV park, lodging, cabins, tent sites, a
gift shop, an arcade, a swimming pool, a commercial greenhouse, and a hog farm.
Plaintiffs contend that these uses are inconsistent with the General Plan and the
LUO. The applications were accepted in late February 2001, and the Town
passed a temporary LUO on February 28, 2001. Plaintiffs contend that the Town
violated Utah law by approving these applications, when a temporary LUO is
designed only to preserve the status quo.
Nearly all of this claim is precluded, because it is essentially identical to
the claim plaintiffs previously litigated in state court, or because it involves
allegations that could have and should have been made in the previous action.
The only exception appears to be the allegations involving the July 14, 1999
permit applications and other permit applications approved in February 2001,
which could not have been raised in the previous action.
D. Remaining claims
The remaining claims contained in plaintiffs' complaint do not appear, on
the record before us, to be subject to claim preclusion.(9) This is true either to the extent they arose after the filing of the complaint in the previous actions, or
because there is not a sufficient factual nexus between those claims and the
previous actions that the claims should have been brought in the prior actions.
It may be, however, that the district court would conclude otherwise after careful
application of the rules set forth in this opinion. It may also be true that these
claims actually were litigated in either or both of the previous actions, thus
precluding either Hatch or both plaintiffs from bringing them now. If defendants
can establish this with appropriate evidence, these claims would also be
precluded. Additionally, defendants may also have other defenses that the district
court did not reach as to these claims, such as the statute of limitations, or
plaintiffs' failure to state a claim for constitutional violations.
IV. Analysis of non-precluded claims
The district court determined that the allegations contained in nine
paragraphs of plaintiffs' complaint (paragraphs 57-61 and 66-69) were not
precluded by either of the prior suits. The court granted summary judgment to the
defendants on these allegations, however, finding that they were "in reality, local
land disputes which are better reviewed under state law" rather than 1983
claims. Aplt. App. at 452.
(9) These claims include, but may not be limited to, the following:
Hindrance of subdivision development (complaint 10-12);
Conveyance of adjacent cul-de-sac (complaint 62);
Denial of business license applications (complaint 12-14; 63);
Boulder business brochure (complaint 20);
Sign ordinance violations (complaint 23);
Complaints about obtaining town records, and hours of operation of townbuildings, to the extent arising after plaintiffs' complaint in prior litigation;
and
Mitchell's exclusion from town library (complaint 42).
"We review the district court's grant of summary judgment de novo,
applying the same legal standard that should have been used by the district court."
Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (quotation
and alteration omitted). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c).
A. Paragraphs 57 to 61
Plaintiffs contend that they attempted on many occasions, from January
1998 forward, to obtain a copy of the General Plan Map. They claim they were
finally provided a copy in February 2000. They assert, however, that this map is
flawed and inaccurate and should not be viewed as an appropriate zoning map for
the LUO. They further assert that defendants have failed to mark their properties
in red on the General Plan map; that defendants clarified the LUO after claiming
that it was already "clear" during the course of the prior litigation brought by
plaintiffs; that Boulder has improperly classified their property as high-density
residential; and that this zoning classification prohibits them from applying for
commercial conditional use permits. They further assert that without a designated
commercial zone in the town, they cannot relocate their businesses.
We agree with the district court's analysis. These claims should be
exhausted administratively and/or pursued through appropriate zoning appeals and
other measures, rather than being brought initially as 1983 claims. Plaintiffs
also failed to show that they attempted to apply for a conditional use permit.
Thus, their claims appear to be unripe and/or premature.
B. Paragraphs 66 through 69
In these paragraphs of their first amended complaint, plaintiffs assert that
after the Utah Court of Appeals ruled that the existing LUO was illegal, Boulder
passed a temporary LUO. They assert that prior to passage of the new LUO, the
Town contacted BEC and the Stouts and accepted business license applications
from them for a wide variety of businesses, in order to grandfather these
businesses in before the new LUO was in place. Plaintiffs further assert that the
Town subverted the purpose of a temporary LUO, which is to preserve the status
quo, by issuing conditional use permits under the emergency ordinance, and by
deciding that conditional use permits provided under the former LUO were still
valid.
The district court found that these allegations were conclusory and did not
state a claim for relief under 1983. When asked at his deposition whether he
had any specific knowledge of Boulder's having encouraged BEC and Stout to
file the applications, Hatch admitted that he did not. Aplee. Supp. App., Vol. I
at S-74 (depo. p. 140). Similarly, Mitchell denied any personal knowledge that it
was Boulder that urged the Stouts to file the applications. Id. at S-133, 134
(depo. pp. 136-37). We agree with the district court that summary judgment was
properly granted as to these claims.
The judgment of the district court is AFFIRMED in part, REVERSED in
part, and REMANDED for further proceedings in accordance with this opinion.
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