Opinion
Case No. 1:01-CV-118-TC.
December 10, 2004
ORDER
This matter comes before the court on the Defendants' Motions for Summary Judgment. The Defendants also seek an order striking the affidavits of Plaintiff Julee Bramson and her consultant, Troy Herold, on evidentiary grounds (lack of foundation, inadmissible hearsay, and improper legal conclusions). The parties raised numerous issues, but the threshold issue is justiciability of the issues currently facing the court. Accordingly, the analysis below does not reach beyond this threshold issue. Instead, the court finds that the issues are not ripe for adjudication, and the Plaintiffs' claims should be dismissed without prejudice.
The Weber County Defendants submitted two Motions to Strike, and the Huntsville Defendants filed papers joining in the Weber County Defendants' Motions.
The Bramson and Herold Affidavits were filed as exhibits to Plaintiffs' Combined Memorandum in Opposition to Huntsville Defendants' Motion for Summary Judgment and Weber County Defendants' Motion for Summary Judgment (hereinafter "Opposition Memorandum"). The Herold Affidavit is attached as Exhibit 2 to the Opposition Memorandum, and the Bramson Affidavit is attached as Exhibit 3 to the Opposition Memorandum.
Although the Defendants filed motions for summary judgment seeking a decision on the merits dismissing the claims with prejudice, they also raised the issue of ripeness, which necessarily requires dismissal without prejudice. See, e.g., Morgan v. McCotter, 365 F.3d 882, 891 (10th Cir. 2004).
INTRODUCTION
This lawsuit arises from a dispute over the proposed development of real property owned by the Plaintiffs. The Plaintiffs are the Village Huntsville, LLC ("Village Huntsville") and two Village Huntsville principals, Julee Bramson and her husband, Daniel Bramson. (Village Huntsville is a limited liability company formed for the purpose of developing approximately nine acres of land located in unincorporated Weber County on the border of the town of Huntsville, Utah.) The Plaintiffs have brought suit against the town of Huntsville (a political subdivision of the State of Utah), members of the Huntsville Planning Commission (Ron Gault, Jim Hasenyager, John Cox, and Rex Harris), and Huntsville Mayor Jim McKay ("the Huntsville Defendants"). The Plaintiffs are also suing Weber County, and employees of the Weber County Planning Department (Craig Barker, Kevin Hamilton, and Kelly Grier) ("the Weber County Defendants"). The gist of all Plaintiffs' claims is that the Defendants have prevented the Plaintiffs from developing their real property and in so doing, have violated Plaintiffs' constitutional rights.In their First Amended Complaint the Plaintiffs brought various claims against the Defendants. In March 2002, the Huntsville Defendants filed a Motion to Dismiss all of the claims against them. The court dismissed all of the claims against the Huntsville Defendants except Plaintiffs' 42 U.S.C. § 1983 civil conspiracy claim. (See Dec. 9, 2002 Order (Dkt. # 53).) Accordingly, the Huntsville Defendants' Motion for Summary Judgment is limited to that one remaining claim.
The Weber County Defendants are seeking summary judgment on all of Plaintiffs' claims against them. They raise a defense of qualified immunity (for the individual Weber County Defendants) as well as other issues concerning the viability of Plaintiffs' claims.
Plaintiffs, in their opposition papers, abandoned their third and fifth causes of action (i.e., retaliation and privileges immunities). Accordingly, only Plaintiffs' claims brought under 42 U.S.C. § 1983 alleging violation of their substantive due process rights, violation of their procedural due process rights, violation of their rights under the equal protection clause, and civil conspiracy remain.
Plaintiffs' Seventh Cause of Action for Punitive Damages is not a separate cause of action. Rather, the court views it as a remedy requested by the Plaintiffs. Also, because ripeness issues prevent a ruling on the merits, the court does not address the parties' arguments regarding punitive damages.
FACTUAL BACKGROUND
The Village Huntsville LLC was formed by Julee and Daniel Bramson for the purpose of developing approximately 9.3 acres of property located in unincorporated Weber County ("the property.") The property lies adjacent to or very near the border of the town of Huntsville, Utah. Village Huntsville and the Bramsons planned to develop a 90,000 to 110,000 square foot shopping, dining, recreational, and office village complex on the property.Plaintiffs hired various consultants to assist them with their project. The Plaintiffs' initial goal was to present a workable set of plans to the appropriate government entity in the Spring or Summer of 1999 for development approval. Ms. Bramson initially believed she would be able to secure all necessary development approvals within approximately three months, and expected to have construction completed by November 2001, in time for the 2002 Winter Olympics. Although the project's economic feasibility and funding did not depend on opening in time for the 2002 Winter Olympics, the Plaintiffs viewed the Olympics as important to the project's success. It is not clear from the record who of the Defendants knew that the Plaintiffs wanted the project to be built before the Olympics, but Weber County admitted that its staff was aware at some point in the development approval process of the Plaintiffs' self-imposed deadline.
Because the property was located in Weber County, it was within the jurisdiction of the Weber County Township Planning Commission and, ultimately, the Weber County Commission, for purposes of securing development approvals. Accordingly, Ms. Bramson initially approached Weber County in early 1999 about getting the development approval process started. She did not submit a formal application at that time. Rather, she and her representatives had a brief discussion with Defendant Craig Barker, Director of the Weber County planning department, who took a cursory look at the development proposal.
Mr. Barker informed Ms. Bramson that the property was zoned Commercial Resort Recreation Zone CR-1 and that, based on his brief review, the development as proposed did not fit into the zoning limitations. Moreover, he told Ms. Bramson that the property, which normally would have been located in the County's East Huntsville Township, had been intentionally carved out of the Township when the Township was originally formed, because the County anticipated that the Town of Huntsville ("Town" or "Huntsville") would eventually annex the property. Given those reasons, he recommended that Ms. Bramson approach the Town and submit an application for annexation of the property.
The CR-1 zoning ordinance is attached as Exhibit 10 to Plaintiffs' Combined Opposition Memorandum.
Apparently, the East Huntsville Township is a subdivision of the County.
The Plaintiffs contend that the CR-1 zoning did allow the development as proposed, and they disagree with the County's interpretation of the zoning ordinance. Plaintiffs question Mr. Barker's motive and stated reasons for sending Ms. Bramson to Huntsville. Ms. Bramson testified in her deposition that Mr. Barker refused to consider the development proposal and simply told her that "for political reasons" she must approach Huntsville and request annexation. (Julee Bramson Dep. (hereinafter "Bramson Dep.") at 90-91, attached as Ex. 1 to Pls.' Combined Opp'n Mem.) The Plaintiffs did not appeal Mr. Barker's decision to the Weber County Commission or Weber County Board of Adjustment (apparently that was a remedy available to the Plaintiffs).
There was disagreement about, among other things, whether the proposed office space fell within the CR-1 zoning parameters.
On May 10, 1999, following Mr. Barker's advice, the Plaintiffs submitted an annexation petition to the Huntsville Planning Commission together with information regarding the Plaintiffs' commercial development plan. There is no evidence in the record that, at that time, Town representatives knew the Plaintiffs had approached the County first with the development proposal or that Mr. Barker had recommended that the Plaintiffs submit a petition for annexation to the Town.
The Huntsville Planning Commission, consisting in part of individual Defendants Ron Gault, Jim Hasenyager and John Cox, "recommended that Bramson amend the petition to include other properties along a strip of land bordering the town to ensure a consistent level of future development" for the Town. (May 20, 1999 Minutes of Huntsville Planning Commission, attached as Ex. 45 to Huntsville Defs.' Mem. in Supp.) The Plaintiffs received advice (later determined to be incorrect) from one of the Town representatives, who suggested that because the Plaintiffs owned more than 30% of the property proposed to be annexed, they had the right to include other owners' property in the annexation despite objections from the other owners.
It is not clear whether the Plaintiffs conditioned, either expressly or implicitly, their initial annexation petition on approval of the proposed development. It is clear that after the Huntsville Planning Commission received the annexation petition and development plans from the Plaintiffs, it requested additional information from the Plaintiffs that pertained to development, not annexation, issues. Apparently this was not the Town's normal practice with respect to annexation petitions. The Commission requested, for example, plans for and State approval of the septic system, a wetlands analysis, percolation testing, information concerning the views of the Utah State Department of Wildlife Resources, landscaping, types of lights and lightbulb wattages to be used, secondary access routes, and crash barriers, and a Hold Harmless Agreement stating that the Town would not be responsible for flood damage on the property. Plaintiffs present this departure from what they term "historical practice" as circumstantial evidence that
Huntsville was not using this additional information . . . in good faith to help further the development. Instead, Huntsville used this information about the development — information that, by its own admission, had "no real bearing". . . . on the decision to annex — as reconnaissance to learn how they needed to amend their zoning laws to prohibit the development, if and when, Huntsville decided to annex the property. For example, after learning that Ms. Bramson's project called for setbacks from the river of approximately 30 feet, . . . Huntsville proposed enactment of an ordinance that no structure would be permitted within an area of 75 feet of the river. . . . And the town did so without conducting any study as to whether a 75-foot setback was actually necessary and without receiving any evidence as to whether the Bramson development would actually harm the river.
(Pls.' Opp'n Mem. at pp. xxxi-xxxii (emphasis added).) Plaintiffs allege that "Huntsville Town was using the annexation process as a pretext for finding reasons to stop it." (Id. at xxxiii, ¶ 49.) Plaintiffs also point to evidence that Town representatives expressed distrust of the percolation testing data submitted by Plaintiffs' consultant, Reeve Associates. Defendants dispute the validity of the inferences that Plaintiffs draw from the direct evidence.
While gathering the additional information the Town requested regarding the development, the Plaintiffs amended and re-submitted their annexation petition on June 4, 1999, based on the Huntsville Planning Commission's request to include other properties in the annexation petition. The Huntsville Planning Commission recommended approval of the annexation petition to the Town Council. After vigorous objections by some of the property owners whose properties were proposed to be annexed, and given the fact that the Plaintiffs did not have the right to request annexation of more than their own property (despite the advice they received, later admitted to be incorrect), the Town determined that the Plaintiffs needed to submit a third annexation petition (which would include only the Plaintiffs' property) and repeat the annexation process. Ms. Bramson said she did not view the Town's request to include other property in the annexation petition as a conscious effort to delay her project. (Bramson Dep. at 271.)
On September 23, 1999, rather than submitting a third annexation petition to the Town, the Plaintiffs withdrew their second (amended) annexation petition and went back to the County to pursue development approval using a different strategy. In the meantime, while the Plaintiffs' annexation petition was pending before the Town, the County amended its zoning ordinance on May 26, 1999, to replace the CR-1 zone with the Commercial Valley Resort Recreation Zone CVR-1. According to Craig Barker of the County, the adoption of the CVR-1 zone was a liberalization of the CR-1 zone and made the development of Plaintiffs' property (now zoned CVR-1) more likely.
After withdrawing their annexation petition from the Town, the Plaintiffs, on October 20, 1999, filed an application with the County for a conditional use permit in the CVR-1 zone. On October 28, 1999, Defendant Kevin Hamilton, a Weber County staff planner, notified the Plaintiffs of the County's position that the development as proposed did not fit within the CVR-1 Zone. (See Oct. 28, 1999 Letter from Kevin Hamilton to Julee Bramson, attached as Ex. 28 to Pls.' Opp'n Mem. (listing reasons why plan as proposed did not fit in CVR-1 Zone).) Although Ms. Bramson and her representatives disagreed with the County's interpretation of the CVR-1 Zone's restrictions, they did not appeal the determination to the County's Board of Adjustment.
Instead, the Plaintiffs went back to Huntsville and re-applied for annexation on December 13, 1999. The Plaintiffs' renewed annexation petition expressly linked their request for approval of annexation with approval of the commercial development. The petition reads:
We the undersigned [Julee and Daniel Bramson] do hereby request annexation of our property at approximately 700 S. 7800 E. (Parcel #24-018-0012) into Huntsville City. This annexation is with the understanding that Huntsville City will allow the development of the property for commercial use, that the city will amend the liquor laws to allow the service of alcoholic beverages in a restaurant establishment, and that the city will allow for the appropriate water connections and other city services.
(Dec. 13, 1999 Request for Annexation (emphasis added), attached as Ex. 23 to Huntsville Defs.' Mem. in Supp.) For approximately two months following the Plaintiffs' December 13, 1999 petition, the Huntsville planning staff and the Huntsville Planning Commission addressed the Plaintiffs' annexation petition. For example, the Planning Commission held five special work sessions between January 6, 2000, and February 17, 2000.
During this two-month review process, Town planners raised various issues of concern regarding the development. For example, they were concerned whether soils on the property were adequate to safely support a septic system of the size the Plaintiffs were proposing for the property, and they raised questions about the density of the project (i.e., the ratio of building to lot size), particularly given its proximity to the river and other environmental sensitivities perceived to exist on or near the property.
On February 9, 2000, Jim Hasenyager, a member of the Huntsville Planning Commission, wrote a letter indicating his opposition to the Plaintiffs' annexation petition because it was linked to approval of Plaintiffs' development plans. He believed these were separate matters and should be treated separately. He stated his opinion that any large-scale commercial development on the property was
not only unwise, but simply wrong. The property will not carry such a development without, inevitably, having a damaging effect on water quality in both the river itself and in the reservoir. These are legitimate concerns for this body, as Pineview Reservoir borders the town on three sides.
(Feb. 9, 2000 letter from J. Hasenyager to Huntsville Planning Comm'n, attached as Ex. 50 to Huntsville Defs.' Mem. in Supp.)
At the February 17, 2000 meeting of the Huntsville Planning Commission, the Commission voted to recommend amendment of the Town's commercial zoning ordinance "to cover all commercial development and have it define the ratio of building-to-lot size based on the environmental sensitivities in a particular area in question." (Minutes of Feb. 17, 2000 Huntsville Town Planning Comm'n, attached as Ex. 40 to Huntsville Defs.' Mem. in Supp.) The Plaintiffs, expressing frustration with the process, demanded a vote that evening on the petition. Specifically, the Plaintiffs demanded that the Commission vote either to recommend to the Huntsville Town Council approval of the annexation and acceptance of the development proposal or to recommend denial of the annexation petition. The Huntsville Planning Commission voted to recommend denial of the annexation petition.
On March 2, 2000, Defendant John Cox, Chairman of the Huntsville Planning Commission, sent a letter to the Huntsville Town Council regarding the annexation petition. He stated that "[t]he Planning Commission recommends that the Town does not annex this land at the present time. The Planning Commission is working on a recommendation for a new commercial zone ordinance to apply to all commercial properties. . . ." (Mar. 2, 2000 Letter, attached as Ex. 46 to Pls.' Opp'n Mem.) Plaintiffs interpret the Huntsville Planning Commission's move to recommend a new zoning ordinance as an attempt to re-zone the property so that it could not be developed as proposed. (See, e.g., Pls.' Opp'n Mem. at p. li ¶ 124, p. lii ¶ 127.) Apparently the proposed changes to zoning had to do with sensitive lands such as flood plains and wetlands and corresponding ratios of buildings to lot size. (See Feb. 17, 2000 Minutes of Huntsville Town Planning Comm'n at 1, attached as Ex. 40 to Pls.' Opp'n Mem.; Mar. 7, 2000 Minutes of Huntsville Town Council at 1, attached as Ex. 47 to Pls.' Opp'n Mem.)
On March 21, 2000, the annexation petition came before the Huntsville Town Council, who voted to table the petition in light of the Planning Commission's recommendation of denial and in light of proposed changes to the Town's commercial zone. On April 4, 2000, the matter again came before the Town Council, but before the Council could vote on it, Plaintiffs requested that the Council table consideration of the petition. The Town Council agreed to table the petition. On April 14, 2000, the Plaintiffs' counsel formally notified the Town that the Plaintiffs were withdrawing the annexation petition completely.
The Plaintiffs concluded that "[t]he position of Huntsville at this point in time was that `they weren't in favor of the development and wanted to annex the property so they could control it and stop the development.'" (Pls.' Opp'n Mem. at p. liii ¶ 128 (quoting Troy Herold deposition testimony).)
While the annexation petition was pending before the Huntsville Planning Commission (and before Plaintiffs withdrew their petition), Plaintiffs approached the County and requested that the County review the Plaintiffs' development approval. On March 29, 2000, Weber County planner Craig Barker wrote a letter to Ms. Bramson indicating his reluctance to process the development application concurrently with the Town's annexation petition review process. (See Mar. 29, 2000 Letter from Craig Barker to Julee Bramson, attached as Ex. 7 to Huntsville Defs.' Mem. in Supp. (setting forth reasons for reluctance).) Nevertheless, he indicated that the County would be willing to proceed with review if the Town provided a letter indicating that the Town had no objection. Mr. Barker also told Ms. Bramson that she could appeal his decision not to proceed at this point to the Weber County Board of Adjustment. Apparently, Ms. Bramson did not appeal Mr. Barker's decision and did not seek a letter from the Town.
Instead, on April 13, 2000, Ms. Bramson, and two of her consultants — John Rooker and Troy Herold — met with Craig Barker and Kevin Hamilton of Weber County, apparently to try to convince the County once again to process the development application at the same time the Town was considering the annexation petition. Plaintiffs asked the County to let the Plaintiffs "proceed down as many parallel tracks as possible" to speed up the process. (Pls.' Opp'n Mem. at p. lvii, ¶ 140.) Mr. Barker refused Plaintiffs' request. The Plaintiffs attribute certain statements to Mr. Barker and point to this conversation as evidence of Mr. Barker's alleged unreasonableness. Specifically, the Plaintiffs allege that
Mr. Rooker [an attorney] had studied the county ordinances and applicable administrative rules before attending this meeting and "could not identify or discern any basis for refusing to go down parallel tracks." . . . When Mr. Rooker asked Mr. Barker why his proposal would not be possible, Mr. Barker first claimed that their rules would not allow it. Mr. Rooker made reference to the relevant ordinances and expressed his understanding that there was no ordinance which prohibited the county from considering site plan approval or rezoning while Huntsville Town was considering annexation. He also asked Mr. Barker if there was some administrative rule he was aware of or some internal staff policy that Mr. Rooker might not have access to that prohibited [Mr. Rooker's] request, Mr. Barker['s] "consistent and oft-repeated response was, `That's the rule.'" When Mr. Rooker asked Mr. Barker to cite the rule to him or identify the source of "the rule," Mr. Barker "grew substantially agitated and finally said, `Do you want to know who makes the rule? I make the rule and I'm not going to do it.'" . . . In that meeting, Mr. Barker stated that the property "was not appropriate for commercial development, should not be commercially developed, and that if he had anything to say about it, it would be rezoned to prevent commercial development." According to Ms. Bramson, he said, "I don't want any development on the property, if I had it my way, if it was up to me."
(Pls.' Opp'n Mem. at pp. lvii-lix, ¶¶ 141-145, 149 (internal citations omitted).)
After their unsuccessful meeting with Mr. Barker and after withdrawing their annexation petition on April 14, 2000, the Plaintiffs, on April 18, 2000, petitioned Weber County for a zone change from CVR-1 to CV-2. (Apparently, the Plaintiffs had decided not to challenge the County's interpretation of the CVR-1 zoning ordinance.)
Plaintiffs allege that the County's planning staff proceeded to request more detailed information than was required by the re-zoning ordinance. The re-zoning ordinance reads in pertinent part as follows: Development to be Linked to Rezoning — A County Policy. . . . [I]n order to associate projected development with a rezoning petition, Weber County requires that a Concept Development Plan showing a petitioner's general development proposals be submitted as part of a rezoning petition.
. . .
The Concept Development Plan to be submitted with a rezoning petition shall indicate general land use types, approximate locations and arrangements of buildings, structures and facilities and general open space, parking, access-traffic patterns, letters of feasibility from the appropriate state or county agencies for water and waste water provision, and, at the discretion of the County Engineer, a narrative from the Project Engineer discussing the feasibility for the mitigation of storm water run-off. More specific development plans shall be reviewed by the County at a later date as part of its site plan design review, conditional use approval and building permit issuance process. The information shown on the concept plan may vary in detail depending on the size of projects. Small projects shall be more detailed than large projects which may be described in broad general terms in plan and/or narrative form.
(Weber County Zoning Ordinance §§ 35-2, 35-4 (emphasis added), attached as Ex. 53 to Pls.' Opp'n Mem.) According to Plaintiffs, this more detailed site plan documentation included proof of septic system approval, letters of feasibility for drinking water and wastewater, a description of architectural elevations, "UDOT clearance," a "FEMA letter," and other unspecified "ad hoc and irrational requirements in an effort to cause Ms. Bramson unnecessary delay." (Pls.' Opp'n Mem. at p. lx ¶ 156, and p. lxiv ¶ 167.) But these requests seem to be in line with the language of the re-zoning ordinance quoted above. (See Weber County Zoning Ordinance § 35-4; Weber County Defs.' Reply Mem. at p. xci ("Both UDOT and FEMA approvals are essential to determine where buildings could be sited on Bramsons' property.").)
On August 15, 2000, the Weber County Planning Commission held a hearing on the Plaintiffs' petition. The planning staff report, authored by Defendant Kelly Grier, recommended against the petition on the basis that Plaintiffs' proposal did not
meet the requirements of the Ogden Valley General Plan, fire district requirements or Ogden Valley zoning ordinances. . . . The size/scale/bulk of the project is not compatible with the rural character of the area. . . . Setbacks from the river do not meet requirements. . . . Parking lots are on the highway side of the project, rather than to the side or rear per Architectural and Landscaping ordinance. . . . Nothing has been submitted to suggest that a development of this size and magnitude can be sustained by this community.
(Aug. 15, 2000 Minutes of Weber County Township Planning Comm'n, attached as Ex. 57 to Huntsville Defs.' Mem. in Supp.) Given issues raised in the planning staff report and concerns voiced during the hearing (see id.), the County Planning Commission voted to table the proposal until the Commission's September meeting. When the Weber County Planning Commission reconvened in September 2000, it voted three to one, with one abstention, to recommend approval to the County Commission to rezone the property from CVR-1 to CV-2.
Plaintiffs requested that their re-zone application be added to the Weber County Commission's October agenda. For reasons not completely clear from the record, the item was not added to the October or December meeting agendas, but rather was scheduled for the January 2001 meeting. The parties seem to agree that proper public notice was not given for at least one of the meetings. They appear to disagree about the motive, if one existed, behind the failure to give proper notice. Plaintiffs point to this delay, to the Weber County staff's awareness of the Plaintiffs' desire to get the project built before the Olympics, and the failure to give notice as circumstantial evidence of the County's intent to unreasonably delay, and ultimately defeat, the Plaintiffs' development proposal. According to the Plaintiffs, "[t]his three-month delay was critical to the project and made it `extremely difficult at best' because, as Mr. Herold explained, `ultimately, [the delay] would put [the project] into, obviously, the dead of wintertime when none of the earthwork or utility work could have been done. Had the project proceeded three to four months earlier, it still would have been in the time frame when some of the earthwork and utility work could have been done while the ground wasn't frozen.'" (Pls.' Opp'n Mem. at p. lxix, ¶ 189.)
Also, on November 10, 2000, the Huntsville Planning Commission wrote a letter to the Weber County Commission objecting to the proposed project:
We object to any project of the size proposed being built in this river bottom area. In the Huntsville General Plan, we have designated this area as sensitive land. . . . We are not convinced, regardless of assurances from the state, that sewage quantities from a project this large can be adequately treated on the property. The percolation test results you are asked to rely upon (from the spring-summer 2000) were taken during a very dry year. The percolation test results presented to us from a slightly wetter year (March 1999) with a higher water table, barely passed. The water tables for these two years are not representative of average water years. Every member of our Planning Commission has observed the property in question flooded in closer to average water years, a condition that will most assuredly occur again. We view the architectural style and project scope to be too large a scale to be consistent with the concepts in the Ogden Valley or Huntsville General Plans . . . We do not see any demonstrated economic need for additional commercial development in our area. . . . We feel the current Weber County zoning of CVR1 is adequate for the area in question, allowing some small scale commercial development compatible to the needs of the populace, rather than a rezoned CVR2 designation.
(Nov. 10, 2000 Letter from Huntsville Planning Comm'n to Weber County Commissioners, attached as Ex. 14 to Huntsville Defs.' Mem. in Supp.)
The matter was on the agenda for the Weber County Commission's January 2001 meeting. However, during the meeting, before the Commission had the chance to discuss Plaintiffs' petition, Ms. Bramson voluntarily withdrew the petition. John Rooker, the Plaintiffs' attorney, offered his version of the reasons underlying that decision: (1) staff had recommended against the rezone; (2) Weber County Commissioner Skeen had earlier advised Ms. Bramson of his belief that the County Commission might reverse the Planning Commission's approval of the rezone request; (3) Ms. Bramson was skeptical about the outcome because the County Commission was engaging in an ongoing dialogue about sensitive land overlays on the property; and (4) Ms. Bramson was concerned that, instead of approving a rezone to CVR-2, the County Commission might actually downgrade the property's zoning, thereby further limiting potential uses of the property. According to Plaintiffs, Ms. Bramson and Mr. Rooker were concerned about a possible downgrade of the property's zoning because:
[Weber County Commissioner] Skeen's disclosures about the futility of pursuing further development opportunities, coupled with the prior hostility expressed by Mr. Barker and the planning staff, the deliberate delays in getting the rezoning petition on the county commission agenda, and anti-development comments made at that January 10, 2001, county commission hearing led Mr. Rooker and Ms. Bramson to believe that, rather than choosing to rezone the property, the county commission could impose an even more restrictive rezoning of [the] property. This was not an idle fear. Chapter 35-11(1)(c) of the Weber County Zoning Ordinance expressly provides that "[t]he County Commission may rezone or agree to rezone the subject land to any other zone or zones deemed more appropriate when considering the Master Plan, citizen's comments and other factors and which may allow some or all of the petitioner's requested uses."
(Pls.' Opp'n Mem. at p. lxxiii, ¶¶ 206-07 (internal citations omitted).) The Weber County Defendants dispute the above statement on the basis that it is "argumentative, conclusory and based on speculation." (Weber County Defs.' Reply Mem. at p. cx.)
Ms. Bramson also explained her reasons. First, she was overwhelmed by disappointment and the reality that her dream would not be realized. Second, she believed that regardless of whether the County Commission approved the petition, additional delays would never allow her to accomplish her goals. For example, she was worried about proposed ordinances that, if adopted, would make it impossible to build the project. Third, she could not take any more financial risks. Finally, she was advised by her attorney to withdraw her petition and leave development of the property to a future developer.
Later, Plaintiffs applied for a permit to built RV storage units on the property. It is not clear whether that application is still pending, but the facts surrounding that application do not appear to be relevant because they were cited in support of Plaintiffs" retaliation claim, which has since been withdrawn.
On a final note, Plaintiffs focus on the formation of the Ogden Valley Planning Forum in December 1999. The forum was formed as an information gathering/exchange tool for regional planning commissions. Jim Hasenyager (of the Town planning commission) was one of the founding members (apparently he conceived the idea). Plaintiffs claim this forum is an illegal decision-making entity formed specifically in response to their development petition. They point to it as more evidence of the conspiracy against them.
ANALYSIS
The Defendants' Motions for Summary Judgment
Ripeness
All of the Defendants contend that because the Plaintiffs never appealed any of the staff or planning commission decisions to the applicable body and never allowed the Town or the County to make a final decision on any of the Plaintiffs' petitions, the issues are not ripe for decision. The Plaintiffs in turn contend that to do so would have been futile, so the finality requirement has been satisfied.
A constitutional challenge to land use regulation is ripe for judicial review only when a property owner has received a "final, definitive position regarding how [the government entity] will apply the regulations at issue to the particular land in question." MacDonald, Sommer Frates v. Yolo County, 477 U.S. 340, 351 (1986) (quoting Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 191 (1985)). The Tenth Circuit discussed this finality requirement in Bateman v. City of West Bountiful, 89 F.3d 704 (10th Cir. 1996). In Bateman, the city allegedly improperly recorded a Certificate of Noncompliance identifying improper setbacks of buildings on the property, which prevented the plaintiff from selling the property. The plaintiff did not seek a variance from the city's board of adjustment, as was permitted by the city's ordinances, but proceeded directly to federal court asserting takings, due process and equal protection claims. After reviewing Utah law and concluding that "the board of adjustment has the authority to make a final determination regarding [plaintiff's] property," the Tenth Circuit affirmed the trial court's dismissal of the federal claims as unripe for judicial review because "there was no `final decision' for the court to review." Id. at 706.
Under Utah law, planning commission approval or disapproval does not constitute final action on a development application. "[I]f a developer has a dispute regarding a land use decision, the developer must take the matter before the Planning Commission, receive a positive or negative recommendation, and then take that recommendation before the City Council for a final decision." Patterson v. American Fork, 67 P.3d 466, 471 (Utah 2003).
The Plaintiffs argue that the Defendants "mistakenly equate the final decision requirement with some rigid, mechanical process by which a landowner must jump through a requisite number of hoops before a land use authority can be said to have issued a `final' decision." (Pls.' Opp'n Mem. at 23.) They say that the "doctrine of finality does not hinge on whether or not the decision at issue was a `formal' one[.]" (Id. at 24.) Rather, they argue, "[a]t one point or another, each of the defendants stated, by words or through their actions, that they were going to do everything that they could to stop Plaintiffs' development. If a jury believes the plaintiffs' evidence, then plaintiffs undoubtedly received `a final agency position,' and the ripeness doctrine requires no more." (Id. at 27 (citing Suitum v. Tahoe Reg'l Planning Agency, 520 U.S. 725, 737 (1997).)
Plaintiffs also argue that to wait for decisions and then appeal the decisions would have been futile. According to them, "[g]iven Defendants' admission that Plaintiffs' development proposal was inevitably doomed [a statement that does not appear to be supported by the record], requiring Plaintiffs to blindly submit development applications would amount to a hollow and meaningless exercise." (Id. at 28.)
The Plaintiffs never let the Huntsville Town Council or the Weber County Commission actually make a decision on their applications. They bounced back and forth between the two, sometimes getting a recommendation from the planning commission (not the final decision maker) but never allowing the process to go all the way to the end. The evidence in the record does not support the Plaintiffs' claim of futility. This is so particularly because the actions and statements pointed to by Plaintiffs are not attributed to any member of the Weber County Commission or the Huntsville Town Council, much less any member of the boards of adjustment. Even viewing the evidence in the record in the light most favorable to the Plaintiffs, that view does not support the conclusion that the decision-making bodies (the Commission, Council, or boards of adjustment) would have blindly followed the planning staff and planning commission members' lead.
Accordingly, the court concludes that Plaintiffs' claims must be dismissed based on the ripeness doctrine.
Defendants move to strike the affidavits of Julee Bramson and Troy Herold on evidentiary grounds. They allege that the affidavits contain inadmissible hearsay, lack foundation, and contain improper legal conclusions regarding the meaning of the zoning ordinances at issue. Because the court's analysis does not hinge on the contents of the affidavits, their admissibility is not discussed here.
ORDER
For the foregoing reasons, the court DISMISSES all of Plaintiffs' remaining claims WITHOUT PREJUDICE. The Motions to Strike are DENIED AS MOOT.