F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 21 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAKOTA RIDGE JOINT VENTURE,
Plaintiff-Appellant,
v. No. 97-1330
(D.C. No. 96-D-2238)
CITY OF BOULDER, (District of Colorado)
Defendant-Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, Circuit Judge, MURPHY, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.
On September 24, 1996, Dakota Ridge Joint Venture (“Dakota Ridge”), the owner
of certain acreage annexed into the City of Boulder, Colorado (“City”) in 1990, brought
suit in the United States District Court for the District of Colorado against the City,
alleging, in essence, that the City’s zoning laws and its administration thereof constituted
an intentional and unlawful partial taking of the property rights of Dakota Ridge, and that,
in so doing, the City violated Dakota Ridge’s civil rights guaranteed under 42 U.S.C. §
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
1983. In a 34-page complaint, under the heading “General Allegations,” Dakota Ridge
set forth in considerable detail the underlying facts, including, for example, the title
history of a portion of the land here involved dating back to 1968.1
Based on its “General Allegations,” Dakota Ridge asserted five claims for relief,
only one of which was a federal claim. As indicated, Dakota Ridge’s first claim for relief
was based on 42 U.S.C. § 1983. The remaining claims were all state claims, i.e., breach
of contract, “Reliance/Equitable Estoppel,” inverse condemnation, and “Quantum
Meruit/Unjust Enrichment.” Federal jurisdiction of the state claims was based on 28
U.S.C. § 1367(a), Dakota Ridge alleging, in its complaint, that those claims arose out of
“the same common nucleus of operative facts as the federal claim and [are] so related to
that claim as to be supplemental to and form a part of the same case or controversy.”
Although it is not in the record before us, the City, at some point in time, filed a
motion to dismiss under Fed. R. Civ. P. 12(b)(1) and to stay discovery. In connection
therewith, Dakota Ridge filed a response to the City’s motion to dismiss and stay
discovery on November 20, 1996, and that response is in the present record. In any event,
the district court on December 23, 1996, denied the City’s motion to dismiss and stay
discovery and ordered it to answer the complaint. This the City did on January 13, 1997,
admitting or denying the numerous fact allegations in the complaint, and affirmatively
1
We note that Fed. R. Civ. P. 8(a) provides that a claim for relief shall contain “a
short and plain statement of the claim showing that the pleader is entitled to relief . . . .”
-2-
alleging, inter alia, that the district court lacked jurisdiction over any of Dakota Ridge’s
claims.
Some time thereafter, the City apparently filed a motion for summary judgment.
That motion is not a part of the record on appeal, although the City’s brief in support of
its motion for summary judgment, which was filed on February 25, 1997, is in the present
record. The brief included several affidavits.2 On March 13, 1997, Dakota Ridge filed its
response to the City’s motion for summary judgment, attaching several affidavits thereto.
On August 11, 1997, the district court, in an eight-page order, granted the City’s
motion for summary judgment. In so doing, the district court reviewed in detail the
chronology of the controversy and concluded that under Williamson County Reg’l
Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), it had no subject matter
jurisdiction of Dakota Ridge’s asserted federal claim based on 42 U.S.C. § 1983.
Accordingly, the district court granted summary judgment to the City on Dakota Ridge’s
first claim and dismissed that claim without prejudice. Having dismissed the only federal
claim asserted by Dakota Ridge in its complaint, the district court then declined to
exercise supplemental jurisdiction over Dakota Ridge’s four remaining claims and
2
In that brief, the City noted that in denying the City’s earlier motion to dismiss,
the district court stated “that once a more complete record was developed through a
motion for summary judgment, that it would reconsider.” The city then went on to state
that “although the motion is now a motion for summary judgment, it is more properly
framed as a motion to dismiss under Rule 12(b)(1),” i.e., lack of subject matter
jurisdiction.
-3-
dismissed all, without prejudice. 28 U.S.C. § 1367(c)(3). Dakota Ridge appeals. We
affirm.
In its memorandum order granting the City’s motion for summary judgment, the
district court rejected any suggestion by Dakota Ridge that the court’s earlier order
denying the City’s 12(b)(1) motion to dismiss for lack of subject matter jurisdiction was
the “law of the case” and somehow precluded summary judgment. In that regard, the
district court noted that in its earlier order, it had specifically stated that “after a more
complete record was developed” it would reconsider the jurisdictional issue “if a motion
for summary judgment was filed.”
As concerns the merits of the question of whether the district court had subject
matter jurisdiction of Dakota Ridge’s first claim for relief, i.e., its 1983 claim, the district
court held that Dakota Ridge’s challenge to the City’s zoning laws and the application
thereof by the City to Dakota Ridge’s property was not a challenge to a “final” decision
by the City, and the court went on to hold that, even assuming the City’s action was
“final,” the 1983 claim was still not “ripe” because Dakota Ridge had not yet resorted to
state law for just compensation. As indicated, in thus holding, the district court relied on
Williamson, supra.3
Williamson has been considered by us in Bateman v. City of West Bountiful, 89
3
F.3d 704 (10th Cir. 1996); Rocky Mountain Materials and Asphalt, Inc. v. Board of
County Comm’rs, 972 F.2d 309 (10th Cir. 1992); J. B. Ranch, Inc. v. Grand County, 958
F.2d 306 (10th Cir. 1992); Miller v. Campbell County, 945 F.2d 348 (10th Cir. 1991),
cert. denied, 502 U.S. 1096 (1992); Landmark Land Co. of Oklahoma v. Buchanan, 874
-4-
The district court in its order also rejected Dakota Ridge’s suggestion that its case
came within a “futility exception” to the rule of Williamson. In this connection, the
district court relied on Landmark Land Co. of Oklahoma v. Buchanan, 874 F.2d 717, 722
(10th Cir. 1989), where, although we did not specifically adopt the exception, we
indicated that the futility exception, under any circumstance, could not be invoked unless
it was “clear beyond peradventure that excessive delay in such final determination
[would cause] the present destruction of the property’s beneficial use.”
The district court was of the view that Dakota Ridge’s 1983 claim was based on a
Fifth Amendment violation, i.e., an unlawful taking, and that in connection therewith
Dakota Ridge did not rely on any Fourteenth Amendment violation, i.e., due process and
equal protection. However, for dispositional purposes, the district court assumed that
Dakota Ridge’s 1983 claim was based, in part, on a Fourteenth Amendment violation, and
held that such was also not yet ripe for federal resolution. In this regard, the district court
relied on Williamson, supra, and Bateman v. City of West Bountiful, 89 F.3d 704 (10th
Cir. 1996). In Bateman, we upheld the dismissal of a due process and equal protection
claim as being unripe, stating that such claim, which was based on “the same facts as a
concomitant takings claim,” was “subsumed” within the takings claim. Bateman at 709.
On appeal, Dakota Ridge contends that the district court erred in granting summary
F.2d 717 (10th Cir. 1984). In each case we applied the rule of Williamson to the facts of
the case at hand. We are unable to find any decision of this Court holding that the rule of
Williamson was inapplicable to the facts of the case at hand.
-5-
judgment on its federal claim and dismissing all its claims without prejudice.
Specifically, as concerns its 1983 claim, Dakota Ridge asserts that the district court did
have subject matter jurisdiction over that claim and that Williamson is distinguishable
from the instant case on material matters and therefore has no present pertinency. In
connection thereto, Dakota Ridge frames the issues raised on appeal as follows:
I. Does the “final decision” requirement of Williamson
County Regional Planning Comm’n v. Hamilton Bank apply
in a case where the unconstitutional conduct alleged is the
refusal to render any decision at all? . . .
II. Does the “exhaustion” requirement of Williamson County
apply in a case where applicable State law does not provide a
reasonable, certain and adequate state remedy for an
unconstitutional taking? . . .
III. Assuming applicability of the Williamson County
ripeness doctrine, does the “futility” exception apply where
the unconstitutional conduct alleged is the refusal to render
any decision at all? . . .
IV. Assuming that Plaintiff’s takings claim is not ripe under
Williamson County, is a due process claim involving separate
and distinct injuries similarly unripe? . . .
Without belaboring the point, our study of the present record convinces us that the
district court did not err in granting the City’s motion for summary judgment and
dismissing all claims without prejudice. Under Williamson, Dakota Ridge’s 1983 claim is
premature because Dakota Ridge has not yet obtained a final decision regarding the
application of the City’s ordinances and regulations to its property. This is not a case
where the “delay” is intentional and never ending. In this connection, the district court in
its order noted that in June 1997, the City made a decision favorable to Dakota Ridge
-6-
regarding a part of its property and that Dakota Ridge had not submitted a site plan for
much of its property. Having concluded that Dakota Ridge has not yet obtained a final
decision from the City, and that its federal claim is therefore not ripe, we need not here
consider whether Colorado law has an adequate inverse condemnation procedure
available to Dakota Ridge, which, under Williamson, it must also pursue -- and has not --
before any federal claim is ripe.
As concerns Dakota Ridge’s suggestion that it would be “futile” for it to further
pursue state remedies, as we said in Landmark, supra, assuming a “futility” exception to
Williamson, any federal claim of this sort is still not ripe unless “it is clear beyond
peradventure that excessive delay in such a final determination [would cause] the present
destruction of the property’s beneficial use.” Landmark at 721 (citation omitted). Any
“delay” in the present case is not of such proportion.
Finally, under Bateman, supra, if Dakota Ridge’s 1983 claim is based, in any part,
on a due process and equal protection argument, its due process and equal protection
claims, under Williamson, would also be unripe, since, under the circumstances, the
claims would be “subsumed” within the claim based on the takings clause of the Fifth
Amendment.
Having concluded that Dakota Ridge’s 42 U.S.C. § 1983 claim is premature and
subject to dismissal, the district court’s dismissal without prejudice of Dakota Ridge’s
state claims was proper under 28 U.S.C. § 1367(c)(3).
-7-
Judgment affirmed.
ENTERED FOR THE COURT
Robert H. McWilliams
Senior Circuit Judge
-8-