NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0418n.06
Filed: May 18, 2005
No. 04-3516
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
J-II ENTERPRISES, LLC; KENNETH )
RICHARDSON; BARBARA RICHARDSON, )
)
Plaintiffs-Appellants, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
BOARD OF COMMISSIONERS OF )
WARREN COUNTY, OHIO, )
)
Defendant-Appellee. )
Before: MARTIN, COOK, and LAY,* Circuit Judges.
COOK, Circuit Judge. Plaintiffs-Appellants, J-II Enterprises, LLC and Kenneth and Barbara
Richardson, appeal the district court’s order dismissing their due process and equal protection claims
for lack of subject matter jurisdiction and declining to exercise supplemental jurisdiction over their
state law claims. We affirm, generally agreeing with the district court’s analysis.
I
Kenneth and Barbara Richardson own land in Warren County, Ohio, near its border with
Butler County, Ohio. A developer took an option to buy the Richardsons’ property and proceeded
*
The Honorable Donald P. Lay, Circuit Judge for the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
No. 04-3516
J-II Enters., LLC v. Bd. of Comm’rs
to seek Planning Commission approval for subdivision development of the land by submitting a
preliminary plat. Though the Warren County Regional Planning Commission approved the plat
subject to the Warren County Board of Commissioners (“the Board”) releasing the property to
Butler County for sanitary sewer services, the Board refused the necessary release, citing concerns
about excessive growth. That initial optionee-developer then transferred its option to another
developer, J-II Enterprises.
According to the Richardsons, the Board had previously released nearby properties to
Butler County. So J-II Enterprises and the Richardsons sued the Board under 42 U.S.C. § 1983,
alleging deprivation of procedural and substantive due process and equal protection, and violations
of state law. The district court dismissed Plaintiffs’ federal claims under Federal Rule of Civil
Procedure 12(b)(1) as unripe, because Plaintiffs had not pursued available state remedies, and
declined to exercise supplemental jurisdiction over the state law claims following dismissal of the
federal claims.
II
A. Implicit Just Compensation Claim
Although Plaintiffs’ complaint does not cite the Fifth Amendment as a basis for relief, it
alleges: “The Board has destroyed Plaintiffs’ value of the Richardson Property to such an extent that
the Board’s action constitutes a taking of Plaintiffs’ property. Plaintiffs are entitled to compensation
in the amount of the diminution in the value of the Richardson Property as a result of the Board’s
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actions.” Thus, while Plaintiffs’ complaint frames the Board’s actions as violations of due process
and equal protection, the injury of which Plaintiffs complain and the relief they seek concern rights
guaranteed by the Takings Clause and the Just Compensation Clause of the Fifth Amendment.
B. Ripeness Requirement for Just Compensation Claim
Federal courts may not consider questions that do not present cases or controversies. Dixie
Fuel Co. v. Comm’r of Soc. Sec., 171 F.3d 1052, 1057 (6th Cir. 1999). Thus, a case not yet ripe for
adjudication must be dismissed for lack of jurisdiction. Bigelow v. Mich. Dep’t of Natural Res., 970
F.2d 154, 157 (6th Cir. 1992).
“[I]f a State provides an adequate procedure for seeking just compensation, the property
owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and
been denied just compensation.” Williamson County Regional Planning Comm’n v. Hamilton Bank,
473 U.S. 172, 195 (1985). Unless plaintiffs have pursued state remedies, their case is not ripe
because “the State’s action . . . is not ‘complete’ until the State fails to provide adequate
compensation for the taking.” Id. Ohio provides an adequate remedy for an unconstitutional
taking—a mandamus action in state court. Silver v. Franklin Township, 966 F.2d 1031, 1035 (6th
Cir. 1992); State ex rel. Elsass v. Shelby County Bd. of Comm’rs, 751 N.E.2d 1032, 1037 (Ohio
2001). Plaintiffs’ failure to pursue mandamus renders their just compensation claim unripe.
C. Procedural Due Process
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A procedural due process claim is subject to the same ripeness requirement as a just
compensation claim, unless the plaintiff alleges harm flowing directly from a denial of due process.
In Nasierowski Bros. Investment Co. v. City of Sterling Heights, this court held that “a procedural
due process claim is instantly cognizable in federal court without requiring a final decision on a
proposed development from the responsible municipal agency.” 949 F.2d 890, 894 (6th Cir. 1991).
But this court later limited Nasierowski’s holding: “Nasierowski appears to stand merely for the
sensible proposition that while different circumstances may produce different results, the final
decision rule does not apply when the denial of procedural due process itself creates an injury.”
Bigelow, 970 F.2d at 160; see also Nasierowski Bros. Inv. Co., 949 F.2d at 899 (Martin, J.,
concurring) (“[W]e retain the finality requirements for procedural due process claims where we
cannot find a single, concrete separate injury or where the procedural due process claim is in reality
an adjunct to a taking or other constitutional claim.”).
Here, Plaintiffs claim to have suffered injuries due to the Board’s refusal to release the
Richardsons’ property to Butler County—injury from a taking without just compensation. The
Richardsons owned the property before the Board refused to release it, and J-II Enterprises obtained
an option to purchase the Richardsons’ property knowing that the Board had refused to release it.
So no Plaintiff suffered harm from the Board’s allegedly irregular procedures beyond the harm that
resulted from the refusal to release the Richardsons’ property. As Plaintiffs’ due process claim is
ancillary to their just compensation claim, it too is unripe for review.
D. Equal Protection
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Plaintiffs allege that the Board denied them their equal protection rights by refusing to
release the Richardsons’ property to Butler County when it had released similarly-situated property.
Because the harm of which Plaintiffs complain is the Board’s refusal to release the Richardsons’
property to Butler County, the equal protection claim is ancillary to the just compensation claim.
An ancillary equal protection claim is not ripe for review unless the just compensation claim is ripe.
Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002). Thus, Plaintiffs’ equal protection claim is not
ripe, and the district court properly dismissed it.
E. Substantive Due Process
A substantive due process claim can be ripe despite the unripeness of a just compensation
claim. Tri-Corp. Mgmt. Co. v. Praznik, 33 Fed. Appx. 742, 748 (6th Cir. 2002). Nonetheless,
Plaintiffs’ substantive due process claim should still be dismissed because Plaintiffs lack a property
interest in the Board’s releasing the Richardsons’ land to Butler County.
To establish a substantive due process claim in the context of land-use regulations, plaintiffs
must prove they possess a constitutionally protected property or liberty interest. Silver, 966 F.2d
at 1036. Because the Board did not physically take the Richardsons’ land, Plaintiffs’ relevant
property interest is obtaining the sewer release as part of its subdivision plan. Id. But land owners
have no constitutionally protected property interest in developing their land unless zoning authorities
lack discretion to deny the land owners permission to develop the land. Id.
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J-II Enters., LLC v. Bd. of Comm’rs
Plaintiffs contend that the Warren County Subdivision Regulations deprived the Board of
discretion to refuse to release the Richardsons’ property to Butler County. Paragraph 16 of
Plaintiffs’ complaint quotes section 420(A) of those regulations, which provides, in pertinent part:
“Where an adequate public sanitary sewer system is reasonably accessible in the determination of
the Warren County Sanitary Engineer, public sanitary sewers shall be installed to adequately serve
all lots . . . .” Plaintiffs argue that because Butler County’s sewer system was reasonably accessible,
the Board lacked discretion to deny the release of the Richardsons’ property to Butler County.
But nothing in section 420(A) requires the Board to release property to another county. Nor
does the regulation give the Warren County Sanitary Engineer the authority to mandate such a
release. Ohio law gives county boards of commissioners the power to enter into contracts with other
sewer districts. Ohio Rev. Code Ann. § 307.15(A)(1) (Anderson 2003). The Warren County
Regional Planning Commission recognized that authority when it approved a plat subject to the
Board’s releasing the property to Butler County. Plaintiffs, therefore, have no property interest in
the Board’s releasing the Richardsons’ land, and thus, no substantive due process claim. That claim,
however, should have been dismissed for failure to state a claim under Rule 12(b)(6), rather than for
lack of jurisdiction under Rule 12(b)(1).
F. State Law Claims
After dismissing all of Plaintiffs’ federal claims, the district court declined to exercise
supplemental jurisdiction over Plaintiffs’ remaining state law claims and dismissed those claims
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under Rule 12(b)(6). The district court did not abuse its discretion by dismissing the state law
claims. “When all federal claims are dismissed before trial, the balance of considerations usually
will point to dismissing the state law claims . . . .” Musson Theatrical, Inc. v. Fed. Express Corp.,
89 F.3d 1244, 1254–55 (6th Cir. 1996). Dismissal under Rule 12(b)(1) for lack of jurisdiction more
appropriately supports the district court’s action. Bigelow, 970 F.2d at 160 (holding that where
federal claims should be dismissed as unripe, the supplemental state law claims “should also be
dismissed for lack of jurisdiction.”).
III
We affirm the district court’s order dismissing Plaintiffs’ claims, clarifying the more
appropriate rules for dismissal: 12(b)(6) for Plaintiffs’ substantive due process claim, and 12(b)(1)
for their state law claims.
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