Signature Properties International Ltd. Partnership v. City of Edmond

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 8 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

SIGNATURE PROPERTIES
INTERNATIONAL LIMITED
PARTNERSHIP, a Delaware limited
partnership,

Plaintiff - Appellant,
No. 00-6403
v.

CITY OF EDMOND, a municipal
corporation, Oklahoma County,
Oklahoma,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-99-241-C)

Robert C. Smith, Jr. of Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City,
Oklahoma, (James S. Drennan of Monnet, Hayes, Bullis, Thompson & Edwards,
Oklahoma City, Oklahoma, with him on the briefs) for the Plaintiff-Appellant.

Richard J. Goralewicz and Carol Price Dillingham of Turner, Turner, Braun &
Goralewicz; of Oklahoma City, Oklahoma, (Kenneth W. Turner of Turner, Turner, Braun
& Goralewicz; Oklahoma City, Oklahoma and Stephen T. Murdock, City Attorney,
Edmond, Oklahoma, with them on the brief) for the Defendant-Appellee.

Before BRISCOE, HOLLOWAY and MCWILLIAMS, Circuit Judges.

HOLLOWAY, Circuit Judge.
 I

INTRODUCTION

This appeal arises from a dispute between a real estate development firm and a

municipality. Plaintiff/appellant Signature Properties purchased land in the town of

Edmond, Oklahoma, defendant/appellee herein, which was part of a planned residential

development called Oak Tree. A controversy developed over which party was

responsible for improving or enlarging the sewer system for a part of the development

that had been completed in previous years. After some period of maneuvering, Signature

brought this suit in federal court alleging, inter alia, that the City had violated its

constitutional property rights by preventing it from developing its land.

After trial to the court, the district judge granted declaratory relief to plaintiff on a

state law claim, establishing that Edmond was responsible for the cost of improving the

sewer system for the earlier developed portion of the land. The court rejected plaintiff’s

plea for an injunction and dismissed without prejudice plaintiff’s claims for damages,

holding that those claims were not ripe because there had been no final action by Edmond

on which to base plaintiff’s substantive due process claim. Plaintiff appeals.

Plaintiff Signature invoked the district court’s jurisdiction under both 28 U.S.C. §§

1331 and 1332, alleging that some of its claims arose under federal law and that diversity

of citizenship provided an independent basis for jurisdiction over other claims. The

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complaint also invoked the jurisdictional grant of 28 U.S.C. § 1343 as the case addresses

deprivation of Signature’s civil rights guaranteed by the 5th and 14th Amendments.1 This

court’s appellate jurisdiction is based on 28 U.S.C. § 1291.2

1
We note that the complaint did not include adequate averments to support the
claim of diversity jurisdiction which plaintiff-appellant Signature asserts as to Counts I,
IV, V and VI. Count I claims, inter alia, that Edmond is obligated by city ordinance and
Oklahoma law to provide adequate sewage service for Oak Tree. Again under state law,
Count IV avers an obligation by the city under ordinance and Oklahoma law to provide
access to the public sewer system for citizens within the city’s jurisdiction. Count V
asserts a state constitutional violation of Article II § 7 of the Oklahoma Constitution -
under statute and procedural due process - by arbitrary actions of the City of Edmond.
As to these state law counts we note that the plaintiff is a limited partnership and
the citizenship of the general partner and each limited partner should have been pleaded
because complete diversity as between the partners and the adverse party is required
under 28 U.S.C. § 1332. See Penteco Corp. v. Union Gas System, Inc., 929 F.2d 1519,
1521-1523 (10th Cir. 1991). Nevertheless, we conclude that it is not necessary under the
circumstances of this case to either remand to the district court for a determination of
diversity of citizenship or to permit an amendment of the complaint under 28 U.S.C. §
1653, the two alternatives discussed in Penteco.
The plaintiff properly invoked the jurisdiction of the district court under 28 U.S.C.
§ 1331 by pleading its federal constitutional claim. The district court therefore had
supplemental jurisdiction of the state law claims, which arose from the same nucleus of
operative facts, under 28 U.S.C. § 1367 (“[T]he district court shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy under Article III
of the United Sates Constitution.”). We also note that the only issue defendant has raised
concerning the district court’s jurisdiction is the contention that this matter does not
constitute a case or controversy on which federal jurisdiction may be based, a contention
which we reject.
2
Defendant/appellee Edmond does not challenge this court’s jurisdiction. The fact
that most of plaintiff’s claims were dismissed without prejudice does not create a
jurisdictional impediment on appeal in these circumstances. See Landmark Land Co. v.
Buchanan, 874 F.2d 717, 720 (10th Cir. 1989) (fact that district court had dismissed only
the complaint, not the cause of action, not a barrier to appellate jurisdiction where
dismissal was based on conclusion that claims were not ripe); Hyde Park Co. v. Santa Fe
City Council, 226 F.3d 1207, 1209 n.1 (10th Cir. 2000) (dismissal with remand of state
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 II

A

THE BACKGROUND OF THE OAK TREE
DEVELOPMENT AND ITS SEWER PROBLEM

In 1974, an entity known as Unique Golf Concept, Inc. proposed the Oak Tree

residential development as a “planned unit development” (PUD).3 The project included

two golf courses and a country club as well as planned residential areas. Landmark, the

successor to the original developer, went into bankruptcy, and plaintiff Signature, the

owner and developer of other projects combining golf courses and residential areas,

purchased Oak Tree from the Resolution Trust Corporation (RTC) in 1994. The Oak

Tree project was located in Edmond, a relatively large municipality adjacent to Oklahoma

City.

The sewer system installed in the first phase of the Oak Tree project included a lift

station, known as lift station no.1, and a “force main” line. The system was designed so

that all sewage from the development would flow to lift station no.1 and then be pumped

through the force main to the city’s main line leading to the city’s treatment plant. The

system was constructed by Unique, the original developer, and its capacity was intended

law claims was final order).

Our recitation of the facts is based on the district court’s Memorandum Opinion, I
3

App. 128-147, which included its findings of fact and conclusions of law. There is no
material dispute about the subsidiary findings and the controversy at this stage focuses on
the legal rulings below.
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to be adequate to serve the entire development, which was planned to consist eventually

of 1700 residential units, housing approximately 5100 people. Edmond approved the

design and in 1977 accepted the completed system.

Problems with the sewage system had begun at least as early as 1983, long before

plaintiff Signature came on the scene. In that year a study of the problems revealed

excessive “inflow and infiltration,” meaning that rain water periodically came into the

system in a volume exceeding the system’s capacity. A second lift station was added in

1983 as had been planned earlier; this was not a response to the inflow and infiltration

problem. The sewage ran from lift station no.2 to lift station no.1, which continued to

pump the effluent from the entire development. A second study in 1985, undertaken after

complaints about overflow continued to be received by Edmond, again found the problem

to be inflow and infiltration.

When considering making the purchase of Oak Tree from the RTC, plaintiff

Signature undertook a substantial project of “due diligence,” that is an effort to learn

about the project to ensure that its decision would be a well informed one. Plaintiff’s

interviews with Edmond representatives and staff and plaintiff’s review of the RTC’s

previous due diligence work yielded no information about the inflow and infiltration

problems that had existed for over ten years. Instead, plaintiff’s representative was told

that “all utilities had the capacity for full buildout and there were no problems.” Dist. Ct.

Memorandum Opinion at 3, I App. 130.

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 It was not until some months after its 1994 purchase of Oak Tree that plaintiff was

told of problems with the sewer system. Bob Bode, who held the title of Director of

Development for plaintiff, met with representatives of Edmond regarding plans for two

plats. These meetings included discussions of the necessity of building a new lift station,

lift station no.3. As a result of these discussions, Mr. Bode wrote two letters which,

Edmond was later to assert, committed plaintiff to replacing lift station no.1 and the force

main. One of plaintiff’s proposed plats was approved in November 1995, and the second

was approved in January 1996. As far as the district court’s opinion reveals, there was no

substantial conflict between the parties for the next year or more; presumably plaintiff

was developing the most recently approved plats. Soon, however, the parties were at

odds.

B

THE LEGAL CONTROVERSY

By city ordinance, a planned unit development (PUD) must be completed within

five years or the city must grant an extension of the PUD. If neither of these events

occurs, then the zoning reverts to the previous use, which for the Oak Tree area was

agricultural. Obviously then, a developer like the plaintiff has a great interest in obtaining

an extension of the PUD.

The district court found that in 1997 the renewal of the PUD “was looming,” from

which we infer that plaintiff had requested an extension and that the request was pending

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before the city council or the planning commission. Mr. Chris Ansley, general partner of

plaintiff Signature, asked Bryan Coon, an engineer who had worked for plaintiff before,

to develop a plan for increasing the sewer capacity. The resulting proposal was rejected

by the planning commission in the summer of 1998.

At approximately the same time, plaintiff began plat development for a portion of

Oak Tree that it called “the Legacy,” and contracted with a builder for the planned

construction of 33 units. In the summer of 1998, planning commission approval was

denied. At this time, Edmond officials showed Mr. Ansley two letters written by Mr.

Bode, previously mentioned, which purported to commit plaintiff to upgrading the sewer

system.

Edmond hired Mr. Coon to draft a new proposal for increasing existing sewer

capacity. Mr. Coon’s second proposal, which would have had Edmond assume a

proportionate share of the costs based on the number of homes in the development which

had been built before plaintiff’s projects, was also rejected by Edmond. By this time,

plaintiff had become “armed with the full history of sewer problems and legal opinions on

the effect of relevant [City of Edmond] Code provisions.” (As will be discussed below,

the district court held that under provisions of the municipal code, Edmond’s acceptance

of the original sewer system in 1977 made it responsible for any future improvements.)

Plaintiff refused to assume responsibility for costs attributable to improvements for

previously completed projects. I App. 132.

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 In January 1999, after a considerable delay, Edmond extended plaintiff’s planned

unit development for another five years. Shortly thereafter, though, Edmond decided that

only 21 additional building permits would be approved, instead of the 100 that had

previously been decided upon. And Edmond continued to press Signature to undertake

the improvement and expansion of the original sewer system, threatening to impose a

building moratorium if Signature refused. Signature then filed this lawsuit on February

23, 1999.

Edmond then imposed a moratorium on building permits, without giving notice of

the length of the moratorium or of its previous decision to approve 21 additional permits

before the moratorium became effective. J.W. Armstrong, a builder aligned with a rival

developer, was told in a private meeting with the mayor that 21 permits would be given

on a first come, first served basis. Armstrong received 16 of the 21 permits; he had only

16 lots available for building at the time.

Later in 1999 Edmond received an engineer’s report on the sewer system which

indicated that more than 21 additional homes could be built, but not giving a maximum

number that the system could support. Edmond then lifted its building moratorium, but

did not communicate its decision to plaintiff despite repeated written and oral requests

and demands for information; instead, Edmond merely published a notice in a local

newspaper. I App. 133. Due to the moratorium, plaintiff could not obtain financing for

its next development phase, which was delayed for at least one year. Id.

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 III

THE DISTRICT COURT’S RULING

This case was tried to the court, apparently without objection, and the judge issued

her findings of fact and conclusions of law in the form of a Memorandum Opinion. I

App. 128-147. The judge noted that plaintiff had admitted that a Fifth Amendment

takings claim would have been premature because it had not pursued an inverse

condemnation action. Instead, plaintiff relied on the theory of a violation of its Fifth

Amendment substantive due process rights, relying on Williamson County Regional

Planning Comm. v. Hamilton Bank, 473 U.S. 172 (1985).4 The judge noted that this court

has held that under either theory the requirement of a final action by the governmental

actor is identical, quoting from our decision in Landmark Land Co. v. Buchanan, 874

F.2d 717, 720 (10th Cir. 1989), abrogated on other grounds, Federal Lands Legal

Consortium v. United States, 195 F.3d 1190 (10th Cir. 1999).

The district judge concluded that there was no final decision by Edmond, saying

that the lack of finality was best illustrated by the fact that it was not at all clear which

decision plaintiff was challenging. The judge accordingly held that the constitutional

Fifth Amendment substantive due process claim was unripe. Because plaintiff had shown

independent jurisdictional bases for its other claims, however, the lack of ripeness did not

4
In each of the references to the Fifth Amendment, we are using that as shorthand
for rights contained in that amendment as made applicable to the states under the
Fourteenth Amendment.
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result in lack of jurisdiction.

The district judge granted declaratory relief in favor of plaintiff, holding that

Edmond was responsible for any needed improvements to the existing sewer system.

Edmond’s acceptance of the system from the original developer vested ownership of the

system in the municipality by operation of a specific ordinance, and Edmond’s

responsibility for maintenance and improvements followed from its ownership, the court

concluded.

The district court rejected Edmond’s position that plaintiff was contractually

bound by the Bode letters to upgrade the existing sewer system. The judge commented

on the weakness of Edmond’s evidence regarding the scope of Bode’s apparent authority

as agent for plaintiff but made no ultimate determination of that issue. Instead, she

concluded that the letters did not in any event show an agreement on all essential terms.

She further held that even if a contract had been formed, plaintiff would be entitled to

rescission because of Edmond’s failure to disclose essential facts, including the history of

problems with lift station no.1 and its previous commitment, made to a predecessor of

plaintiff, to replace lift station no.1 itself. Edmond’s failure to disclose such material

facts before eliciting the letters from Mr. Bode gave Edmond an “unfair advantage,” the

judge concluded. I App. 145.

The judge refused to grant injunctive relief as requested by plaintiff. Plaintiff had

sought an injunction requiring that Edmond allow plaintiff to develop the remainder of its

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property and to perform needed improvements to the sewer system. The district judge

concluded, however, that to grant the requested injunction would usurp Edmond’s right to

regulate land within its boundaries. In the judgment subsequently entered, plaintiff

Signature’s section 1983 claims were dismissed as unripe and its state law claims for

damages were dismissed without prejudice. Plaintiff Signature appeals.

IV

THE DISMISSAL FOR LACK OF RIPENESS

We conclude that the district judge was correct in dismissing plaintiff’s section

1983 claim without prejudice because the claim is not ripe for adjudication. The instant

case is not materially different from the case cited by the district judge, Landmark Land

Co. v. Buchanan, 874 F.2d 717-22 (10th Cir. 1989). We there held that the same ripeness

test, requiring a final action by the city, applied to a substantive due process claim as well

as to a just compensation claim. We review de novo the district court’s legal conclusion

that the section 1983 claim was unripe. Sierra Club v. United States Dept. of Energy, 287

F.3d 1256, 1263 (10th Cir. 2002); Coalition For Sustainable Resources, Inc. v. United

States Forest Service, 259 F.3d 1244, 1249 (10th Cir. 2001); Roe No.2 v. Ogden, 253

F.3d 1225, 1231 (10th Cir. 2001). The plaintiff has the burden of producing evidence to

establish that the issues are ripe, and we review the district court’s findings of

jurisdictional facts for clear error. Coalition For Sustainable Resources, 259 F.3d at

1249. A brief statement on ripeness will suffice to guide our inquiry:

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 The ripeness doctrine cautions a court against premature adjudication
of disputes involving administrative policies or decisions not yet formalized
and felt in a concrete way by the challenging parties. The ripeness inquiry
is threefold: “(1) whether delayed review would cause hardship to the
plaintiffs; (2) whether judicial intervention would inappropriately interfere
with further administrative action; and (3) whether the courts would benefit
from further factual development of the issues presented.”

Roe No.2 v. Ogden, 253 F.3d 1225, 1231 (10th Cir. 2001) (quoting Qwest

Communications Int’l, Inc. v. F.C.C., 240 F.3d 886, 893-94 (10th Cir. 2001)).

Plaintiff argues that its excessive regulation claim for arbitrary and capricious

regulation is not an actual Fifth Amendment takings claim, but is nevertheless based on

the Due Process Clause and brought under 42 U.S.C. § 1983. In explaining the difference

between its excessive regulation claim and an ordinary takings claim, plaintiff Signature

cites Supreme Court precedent that under the excessive regulation due process theory

government regulation does not effect a taking for which the Fifth
Amendment requires just compensation; instead, regulation that goes so far
that it has the same effect as a taking by eminent domain is an invalid
exercise of the police power, violative of the Due Process Clause of the
Fourteenth Amendment. . . . . The remedy for a regulation that goes too
far, under the due process theory, is not “just compensation,” but
invalidation of the regulation, and if authorized and appropriate, actual
damages.

Williamson County Reg. Planning Comm. v. Hamilton Bank, 473 U.S. 172, 197 (1985)

(footnote omitted). See Reply Brief of Signature at 15. In light of its distinct due process

theory, Signature maintains that it has presented a section 1983 claim that is final for

purposes of judicial review, contrary to the holding of the district judge here. Id. at 13.

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 Although the Court in Williamson County discussed a due process theory, the

Court did not decide whether the theory is a valid one. Instead, the Court held that the

claim in that case was not ripe, even if viewed as a due process claim rather than a takings

claim. 473 U.S. at 199-200. In so holding, the Court suggested that the finality

requirement is the same for due process claims and for takings claims:

Viewing a regulation that “goes too far” as an invalid exercise of the police
power, rather than as a “taking” for which just compensation must be paid,
does not resolve the difficult problem of how to define “too far,” that is,
how to distinguish the point at which regulation becomes so onerous that it
has the same effect as an appropriation of the property through eminent
domain or physical possession. . . . [R]esolution of that question depends,
in significant part, upon an analysis of the effect the . . . regulations had on
the value of respondent’s property and investment-backed profit
expectations. That effect cannot be measured until a final decision is made
as to how the regulations will be applied to respondent’s property.

Id.

Following Williamson County, we have expressly held that the finality

requirements are the same for due process claims and for takings claims. Landmark Land

Co. v. Buchanan, 874 F.2d at 722. The facts of Landmark and of the instant case are very

similar, and the district court relied on Landmark to support its holding that plaintiff’s

claim was not ripe. We agree.

In Landmark, the plaintiff planned to develop a shopping center in Del City,

Oklahoma. The developer obtained a favorable zoning decision and in March 1983, it

submitted a preliminary site plan to the municipality. The city responded with suggested

changes, and planning proceeded over the next year with the developer submitting revised

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site plans, applications for grading permits, and other proposals, all of which were

approved. The developer’s plans soon were frustrated, however. The developer alleged

that city officials, a county official, and officers of the adjacent Air Force base combined

“to delay, to impede and ultimately to prevent” the development.5 Apparently the primary

attempt to obstruct the developer’s efforts was to have the city adopt as an ordinance a

suggested zoning plan for areas surrounding Air Force bases, under which the proposed

development would not have been permissible. The developer in that case alleged that

two Air Force officers, assisted by a county commissioner, “initiated pressure tactics” to

persuade the city council to adopt the zoning plan.

The city council began considering the proposed ordinance at a meeting on

February 27, 1985, but immediately tabled the matter for 120 days. The city manager

informed the developer that no building permits would be issued pending consideration of

the proposed ordinance. The developer unsuccessfully appealed to the Del City Board of

Adjustment.

Frustrated in its efforts, the developer in Landmark commenced an action in

federal district court, contending inter alia that its rights to procedural and substantive

due process had been violated and that the city’s actions constituted a taking without just

compensation. The district court dismissed the complaint without prejudice, holding that

5
Because of the early dismissal of the case, the opinion refers only to the
allegations. Like the panel in Landmark, we assume the truth of the allegations for
purposes of analysis, without of course having any means to know whether the allegations
were well founded or not.
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the developer’s claims were not ripe because it had not obtained a final decision from the

city determining what development would be permitted. On appeal, this court affirmed.

Our court’s decision first held that Landmark’s takings claim was not ripe because

the city had not yet indicated definitely what development would be allowed, nor had the

city finally ruled out the possibility of approval of the original plans. We noted that

Landmark had only been subjected to about six months of delay as a result of the

defendants’ actions. 874 F.2d at 721. Turning to the due process claims, we observed

that “Landmark could recover on its substantive due process claim if it could show that

Del City deprived it of property in an arbitrary fashion.” Id. at 722. We went on to affirm

the district court’s holding that the substantive due process claim, like the other claims,

was unripe:

Before a federal court may step in and ascertain whether a local planning
authority has taken property arbitrarily, however, it must allow the local
authority a chance to take final action. Until it has a final action before it, a
court is unable to evaluate whether property was taken and whether the
local authorities’ position was arbitrary. Thus, the Williamson County
ripeness test applies with equal force to substantive due process claims.
Id.

We are not persuaded by plaintiff Signature’s argument that the finality

requirement is satisfied in this case. Plaintiff has failed to demonstrate any significant

difference between the circumstances of this case and those of Landmark.6 Although

6
Plaintiff says that it challenged three decisions by Edmond: first, the decision to
stop plaintiff from developing its Legacy plat; second, the imposition of the moratorium
on issuance of building permits; and third, after the moratorium had been lifted, the
continued refusal to allow plaintiff to develop and refusal to say how many building
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plaintiff was subjected to somewhat greater delay than was the landowner in Landmark,7

that fact standing alone does not compel a different result in this case; plaintiff has not

articulated any other distinction between the cases, nor has it cited any authority to lead us

to distinguish this case from Landmark.

Plaintiff builds its argument from the premise that its due process claim is different

from a takings claim, highlighting language from the Supreme Court which seems to

summarize the difference succinctly. In City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 722 (1999), the Court distinguished the claim at issue from

an ordinary takings claim by saying that the plaintiff developer’s claim there was “not that

the city had followed its zoning ordinances and policies but rather that it had not done

so.”8 We infer that plaintiff’s position is that its substantive due process claim is ripe

because it is based on arbitrary actions which by their nature are not akin to the steps

permits would be available, which left plaintiff unable to obtain financing to proceed.
(Opening Brief of Appellant at 25-26.) We understand plaintiff’s position to be that all
three identified decisions were part of an overall plan to coerce plaintiff into replacing or
improving the sewer system serving the oldest portions of Oak Tree.

7
Plaintiff Signature suggests several varying amounts of delay. See Opening Brief
of Appellant at 14-15, 17, 18-20; Appellant’s Reply Brief at 12. These different delay
figures range from 16 months to 43 months suggested by plaintiff Signature. We note
that the trial judge stated that “[d]evelopment has been delayed at least one year.”
Memorandum Opinion at 6.
8
The Court was referring, however, not to the plaintiff developer’s due process
claim, but rather to its regulatory takings claim. Nevertheless, the description seems apt
for the substantive due process claim at issue in this appeal, and we will assume,
arguendo, that the language is pertinent.
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involved in most land use regulation cases. Thus, where in the typical case the developer

and the local authority may find themselves engaged in a process of give and take, as

alternative plans are proposed and various regulatory factors are considered, in this case

Edmond attempted, without sound basis and at least arguably improperly,9 to coerce

plaintiff to upgrade the sewer. We infer that plaintiff is arguing that this type of

municipal action is qualitatively different from the process involved in most land use

regulation cases and that our application of the finality requirement should take this into

account.

Language in some cases has indicated that finality is quite different in the context

of substantive due process claims such as plaintiff’s. See Eide v. Sarasota County, 908

F.2d 716, 724 n.13 (11th Cir. 1990) (“a property owner’s rights have been violated the

moment the government acts in an arbitrary manner and . . . that arbitrary action is applied

to the owner’s property”). Nevertheless, we must reject this argument. First, the

argument seems to prove too much because it would seem to emasculate the finality

requirement entirely. Indeed, the quoted language from Eide is difficult to square with

the actual holding of that case that the finality requirement for due process claims is, if

not identical to that for takings claims, at least very similar to it. Moreover, this argument

simply cannot be squared with our holding in Landmark that the finality requirement for

9
The district court’s findings stopped short of deciding whether bad faith or other
impropriety on the part of Edmond officials was present, but as noted supra, with respect
to the Bode letters the judge did find that Edmond had an unfair advantage as a result of
its non-disclosures.
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due process claims is the same as that for takings claims.

In sum, because plaintiff has failed to demonstrate that the circumstances of the

instant case are materially different from those with which we dealt in Landmark, we

conclude that the district court did not err in concluding that Edmond’s actions were not

final and consequently that plaintiff’s section 1983 claim was not ripe.

V

THE DENIAL OF INJUNCTIVE RELIEF

Plaintiff contends that the district judge erred when she refused to issue a

mandatory injunction requiring Edmond to maintain and upgrade the sewer system for the

older portion of Oak Tree. Opening Brief of Appellant/Plaintiff Signature at 31-34. The

right Signature seeks to advance by the injunction is not its constitutionally protected

property right on which it based its section 1983 claim but, as we perceive it, a right

which plaintiff enjoys with all other interested residents in having Edmond perform what

plaintiff describes as a “proprietary” duty.

We are unpersuaded by plaintiff’s attempt to frame the issue as one of law to be

reviewed de novo. It is well established that injunctive relief is equitable and that the

district court’s decision to grant or deny an injunction is reviewed for abuse of discretion.

Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1231 (10th Cir.

1997). The district court’s discretion is not unbounded, of course, and in particular its

judgment is to be guided by “sound legal principles.” Id. (quoting Albermarle Paper Co.

v. Moody, 422 U.S. 405, 416 (1975)). In addition, when a party seeks injunctive relief in

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federal court against a state or local government or governmental entity, concerns of

federalism counsel respect for the “integrity and function” of those bodies, Knox v.

Salinas, 193 F.3d 123, 129-30 (2d Cir. 1999) (quoting Schwartz v. Dolan, 86 F.3d 315,

319 (2d Cir. 1996)); in other words, the federal court must be cautious about issuing an

injunction against a municipality. And caution is especially appropriate in this case

because the type of injunction sought is mandatory rather than prohibitory. See Citizens

Concerned For Separation of Church and State v. City and County of Denver, 628 F.2d

1289, 1299 (10th Cir. 1980).

Plaintiff argues from the premise that the district court, in granting declaratory

relief as sought by plaintiff, correctly determined that Edmond (and not plaintiff) is

responsible for the upgrade and upkeep of lift station no.1, along with all other

components of the system as of the time that Edmond accepted the system from the

original developer. Plaintiff maintains that by accepting the sewer system, under its own

ordinances Edmond assumed the responsibility of ensuring that the system provided

adequate service, a duty that plaintiff describes as proprietary. Edmond does not dispute

plaintiff’s argument thus far, and consequently we also take Edmond’s responsibility for

upgrading the older portion of the system as a starting point.

Plaintiff goes on to argue that the court had the authority under Oklahoma law to

issue an injunction to require Edmond to perform the proprietary function, citing

Grantham v. City of Chickasha, 9 P.2d 747 (Okla. 1932), and Mesta Park Neighborhood

Ass’n v. Continental Fed. Svgs. & Loan Ass’n, 796 P.2d 638 (Okla. Civ. App. 1990).

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These cases provide little support for plaintiff’s position in the circumstances of this case.

In Grantham, the Oklahoma Supreme Court held that a prohibitory injunction should

have been issued against the enforcement of an ordinance which unconstitutionally

discriminated against merchants from out of town. This unremarkable holding says little

to us about the circumstances in which a federal court may issue a mandatory injunction

requiring a municipality to perform one of its duties. In Mesta Park, the state

intermediate appellate court held that a property owner should have been enjoined from

converting a single residence building into a duplex because the conversion would have

been a non-conforming use under the zoning scheme applicable to the property at the

pertinent time. Again, this unremarkable holding has little bearing on the issue before us.

Edmond cites Mayor of Vicksburg v. Vicksburg Waterworks Co., 202 U.S. 453,

471-72 (1906), in which the Court reversed a grant of a mandatory injunction requiring a

city to construct a sewer system. The Court there said that the lower court had erred in

issuing the injunction because

it had no authority to issue a mandatory injunction requiring the city to
construct a sewer, irrespective of the exercise of discretion vested by law in
the municipal authorities to determine the practicability of the sewer
ordered, the availability of taxation for the purpose, and the like matters;
and we think that the exercise of this authority is primarily vested in the
municipality, and not in the courts.

Id. at 472.

It is difficult to assess this exact holding, especially given the tension between the

expression that the lower court had “no authority” and the somewhat weaker phrase that

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the authority is “primarily vested” in the municipal government, a phrase that can be read

as implying that there is at least some authority in the courts. But this need not concern

us. We note that the district judge expressed the same thoughts in her memorandum

opinion. I App. 143. Whether or not Vicksburg Waterworks, which has not been

overruled, stands for the proposition that the district court could not have issued the

injunction plaintiff sought, it at least supports the proposition that the district judge was

within her discretion in denying the relief because of her keen appreciation and

understanding of the concerns expressed by our highest court ninety-six years ago,

concerns which still are valid because they are at the core of our federal system.

In sum, we find no abuse of discretion in the denial of injunctive relief.

VI

THE STATE LAW CLAIMS FOR DAMAGES

Finally, we address plaintiff’s contention that the district court erred in denying

relief on its state law claims for damages. In the briefs, these claims are described simply

as “claims for damages under the Oklahoma Constitution, and the City’s breach of its

obligation under its ordinances.” The district court disposed of the state law claims quite

briefly, at best, with only two statements which may, or may not, have been meant to

address the state claims in addition to the federal claims. First, the district judge said that

because plaintiff’s constitutional claims (apparently meaning only the federal

constitutional claims) were held “barred for lack of ripeness or lack of proof, Signature is

not entitled to recover damages.” Memorandum Opinion at 19. The judge’s opinion also

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stated that: “Signature retains its property and . . . has failed to establish any final

decision restricting its development. It is therefore not entitled to damages.” Id. at 20.

Finally, the judge said that “having failed to establish a constitutional claim, Signature’s

prayer for monetary damages is DENIED.” Id. In the separate judgment entered by the

court the state law claims were dismissed without prejudice.

The argument presented in support of plaintiff’s state law claims is sparse.

Plaintiff asserts that Oklahoma law recognizes a right of action for deprivation of

property rights not amounting to a taking and cites City of Oklahoma City v. Daly, 316

P.2d 129 (Okla. 1957). That case involved physical injury to property caused by the use

of heavy equipment on the adjacent right of way. We do not find that it supports

plaintiff’s position in the circumstances of this case.

Although plaintiff argues that Oklahoma law, “like federal law,” permits recovery

of damages for violations of property rights, plaintiff says nothing about whether, like

federal law, Oklahoma law requires that the governmental action be final, even though

the district court seems to have implicitly assumed this to be the case from the summary

disposition of the state law claims. Indeed, other than the inapposite case on physical

injury to real property, plaintiff provides no authority to support its contention that

Oklahoma law provides a damages remedy on the facts presented. We are satisfied that

the ripeness requirement is the same for the state law claims as it is for the federal claims.

See April v. City of Broken Arrow, 775 P.2d 1347, 1354-56 (Okla. 1989).

We conclude that plaintiff Signature has failed to show that the district court erred

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in disposing of the state law claims for damages.

Conclusion

The judgment of the district court is

AFFIRMED.

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