Crider v. Board of County Commissioners

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 18 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ELMER CRIDER; MARLYN CRIDER;
LANNY HELMS; MARTHA HELMS;
BRUCE GAMBELL; LOIS GAMBELL;
BRIAN MESSICK; LYNETTE MESSICK;
GEORGE MALLON; NANCY MALLON;
LARRY THOMPSON; and KAREN
THOMPSON,

Plaintiffs - Appellants,

v. No. 00-1094

THE BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY
OF BOULDER; RONALD K. STEWART,
PAUL DANISH, JANA MENDEZ, in their
official capacity as County
Commissioners; CITY OF LOUISVILLE;
THOMAS DAVIDSON, in his official
capacity as Mayor; CITY OF
LAFAYETTE; CAROLYN McINTOSH, in
her official capacity as Mayor; CITY OF
BROOMFIELD; and WILLIAM BERENS,
in his official capacity as Mayor,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D. Ct. No. 99-Z-1387)
Richard A. Westfall (Allan L. Hale and Monica A. Flanigan, with him on the
briefs), Hale, Hackstaff, Tymkovich & ErkenBrack, LLP, Denver, Colorado,
appearing for Appellants.

David Hughes, Assistant County Attorney, Boulder, Colorado (Thomas S. Rice,
Senter, Goldfarb & Rice, L.L.C., Denver, Colorado; J. Andrew Nathan and Nina
Hammon Jahn, Nathan, Bremmer, Dumm & Myers, P.C., Denver, Colorado;
Richard F. Rodriguez, Holme, Roberts & Owen, L.L.P., Denver, Colorado; and
H. Lawrence Hoyt, Boulder County Attorney, Boulder, Colorado, with him on the
brief), appearing for Appellees.

Before TACHA, Chief Judge, LUCERO, Circuit Judge, and BROWN, District
Judge. †

TACHA, Chief Judge.

Appellants appeal the district court’s dismissal of their equal protection

claim. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. Background

The appellants, Paradise Lane Owners, are the individual owners and

occupants of six residential properties on Paradise Lane in unincorporated

Boulder County. The lots owned by Paradise Lane Owners total seventy acres,

with ten acres on Paradise Lane unoccupied. Storage Technology Company

(“StorageTek”) owns an adjacent eighty acre lot to the south of Paradise Lane.

This lot is adjacent to and north of StorageTek’s industrial campus.

The Honorable Wesley E. Brown, Senior District Judge for the District of
†

Kansas, sitting by designation.

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 In 1996, the City of Louisville approached some of Paradise Lane Owners

about annexation. Paradise Lane Owners declined annexation at that time.

Subsequent development in the area led Paradise Lane Owners to

reconsider. In their view, the surrounding development had changed the rural

nature of the area. Paradise Lane Owners hoped to have their land annexed into

Louisville so they could get a better price for land and move out. In 1998, they

contacted Louisville officials and indicated that they were interested in

annexation.

Unbeknownst to Paradise Lane Owners, the City of Louisville was

negotiating an intergovernmental agreement (“IGA”) with the County of Boulder

and the cities of Lafayette and Broomfield. Part of these negotiations concerned

placing Paradise Lane in “rural preservation” for thirty years, along with a

prohibition against annexation into Louisville during that time. Paradise Lane

Owners allege that they were unaware of either the IGA or its impact on their

land until after negotiations were completed. They allege, however, that

StorageTek was approached during negotiations and was permitted to object to

being placed in rural preservation status. The IGA negotiations were

subsequently completed. Paradise Lane was placed in rural preservation for thirty

years and prohibited from annexing into Louisville during that time.

StorageTek’s land was not.

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 After the IGA negotiations had been completed, Paradise Lane Owners

appeared at two Boulder County hearings, one Louisville hearing, and one

Lafayette hearing on the IGA and submitted written and verbal objections.

Although Paradise Lane Owners succeeded in getting two modifications to the

IGA, they were unable to remove the “rural preservation” designation from their

property.

Paradise Lane Owners filed a complaint in district court alleging that,

because they had been treated differently by the defendants than had StorageTek,

their rights to equal protection had been violated. They also claim that the

defendants violated their substantive due process rights by arbitrarily and

capriciously depriving them of a property interest. The district court dismissed

their complaint for failure to state a claim. On appeal, Paradise Lane Owners

argue that the district court erred in dismissing its equal protection and

substantive due process claims. They also argue that the district court erred in

striking newspaper clippings that were attached to their complaint.

II. Discussion

We review de novo the district court’s dismissal pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Sutton v. Utah State Sch. for the Deaf

and Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). We must take as true and view

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in the light most favorable to Paradise Lane Owners all factual allegations

contained in their complaint. Id. “A 12(b)(6) motion should not be granted

‘unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.’” GFF Corp. v. Associated

Wholesale Grocers, Inc. , 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v.

Gibson , 355 U.S. 41, 45-46 (1957)).

A. Equal Protection

Paradise Lane Owners argue that, because they were treated differently by

the defendants than was StorageTek, the defendants violated their rights to equal

protection. The Equal Protection Clause of the Fourteenth Amendment dictates

that “No State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” “This Clause ‘embodies a general rule that States must

treat like cases alike but may treat unlike cases accordingly.’” Tonkovich v. Kan.

Bd. of Regents , 159 F.3d 504, 532 (10th Cir. 1998) (quoting Vacco v. Quill , 521

U.S. 793, 799 (1997)). Thus, “[a] violation of equal protection occurs when the

government treats someone differently than another who is similarly situated.”

Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence , 927 F.2d 1111, 1118 (10th

Cir. 1991). To state a valid equal protection claim, therefore, Paradise Lane

Owners must “allege facts sufficient to establish that [they are] similarly situated”

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to StorageTek. Tonkovich , 159 F.3d at 532.

Even taking the facts alleged in the complaint as true and viewing them in

the light most favorable to Paradise Lane Owners, we find that Paradise Lane

Owners have failed to allege facts sufficient to establish that they are similarly

situated to StorageTek. While the properties owned by Paradise Lane Owners and

StorageTek both allegedly total eighty acres and are adjacent, that is where the

similarity ends. According to Paradise Lane Owner’s complaint, StorageTek is a

single commercial entity. Paradise Lane Owners, in contrast, are individual

owners of residential property. StorageTek owns the single eighty acre lot under

consideration as well as an adjacent lot on which it has built a large, industrial

campus. Paradise Lane Owners’ land is subdivided into six separate, individually

owned lots, one lot totaling twenty acres and the other five lots totaling ten acres

(with a ten acre lot unoccupied). StorageTek’s eighty acre lot is undeveloped.

Paradise Lane Owners’ lots have been developed into separate private residences

occupied by Paradise Lane Owners and their families.

We find that Paradise Lane Owners have failed to allege facts sufficient to

establish that they are similarly situated to StorageTek. Consequently, we also

find that Paradise Lane Owners have failed to state a valid equal protection claim.

B. Substantive Due Process

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 Paradise Lane Owners also argue that the defendants violated their rights to

substantive due process by arbitrarily and capriciously depriving them of their

property interests. To state a cognizable substantive due process claim, Paradise

Lane Owners must first allege sufficient facts to show a property or liberty

interest warranting due process protection. Lehman v. City of Louisville , 967

F.2d 1474, 1476 (10th Cir. 1992). If they satisfy this requirement, Paradise Lane

Owners must allege facts sufficient to show that the challenged governmental

action was “arbitrary and capricious.” Jacobs, Visconsi & Jacobs, Co. v. City of

Lawrence , 927 F.2d 1111, 1119 (10th Cir. 1991). 1
The district court dismissed

the substantive due process claim because it found that Paradise Lane Owners

failed to allege facts sufficient to show arbitrary or capricious conduct on the part

of the defendants. We address this issue first.

Although this court has not previously applied the arbitrary and capricious

1
As we noted in Jacobs, Visconsi & Jacobs, Co. :

Absent invidious discrimination, the presence of a suspect class, or
infringement of a fundamental interest, courts have limited their
review of quasi-legislative or quasi-judicial zoning decisions in the
face of a substantive due process challenge to determining whether
the decision was “arbitrary and capricious.”

927 F.2d at 1119. Because Paradise Lane Owners concede that the appropriate
standard of review is the arbitrary and capricious standard, we proceed under this
standard.

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standard to an IGA establishing limitations on the use of property, this standard

has been applied in the context of zoning. Because we find that the limits placed

by the IGA on the use of land are substantially similar to those imposed by zoning

ordinances, we will apply the arbitrary and capricious standard to the IGA in the

same manner in which it is applied to zoning ordinances.

We have noted that the arbitrary and capricious standard in the context of

zoning “does not mean simply erroneous.” Norton v. Village of Corrales , 103

F.3d 928, 932 (10th Cir. 1996). Rather, “‘the Supreme Court has narrowed the

scope of substantive due process protection in the zoning context so that such a

claim can survive only if the alleged purpose behind the state action has no

conceivable rational relationship to the exercise of the state’s traditional police

power through zoning. ’” Id. (quoting Sylvia Dev. Corp. v. Calvert County , 48

F.3d 810, 829 (4th Cir. 1995)) (emphasis added). “‘[T]he ‘true’ purpose of the

[policy], (i.e., the actual purpose that may have motivated its proponents,

assuming this can be known) is irrelevant for rational basis analysis.’” FM

Properties Operating Co. v. City of Austin , 93 F.3d 167, 174 (5th Cir. 1996)

(quoting Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield ,

907 F.2d 239, 246 (1st Cir. 1990)). This longstanding principle has recently been

reaffirmed by the Supreme Court: “the State need not articulate its reasoning at

the moment a particular decision is made.” Bd. of Trustees of the Univ. of Ala. v.

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Garrett , 121 S. Ct. 955, 964 (2001). Rather, under rational basis analysis, we

look only to whether a “reasonably conceivable” rational basis exists. Id. ; accord

Davoll v. Webb , 194 F.3d 1116, 1145 (10th Cir. 1999).

In their complaint, Paradise Lane Owners do not allege the absence of a

conceivable rational relationship between the IGA and a legitimate governmental

objective. Rather, they allege that the defendants enacted the IGA with improper

motives. They allege, for example, that the IGA represents a “horse-trade” of

their rights and a conspiracy on the part of the defendants to obtain Paradise Lane

at decreased cost. The defendants’ actual motivations, however, are irrelevant to

a substantive due process claim. FM Properties Operating Co. , 93 F.3d at 174.

Thus, even assuming that these allegations are true, they do not amount to a

cognizable substantive due process claim. Furthermore, Paradise Lane Owners’

remaining allegations do not relate to whether there is a rational basis for the

IGA, but rather state the effects of the IGA 2
on Paradise Lane Owners and allege

error on the part of the defendants. 3
We find, therefore, that Paradise Lane

For example, Paradise Lane Owners argue that they must pay double for
2

their water for the next 30 years.
3
Paradise Lane Owners argue that the defendants erred when they
determined that Paradise Lane has no community of interest with Louisville.
They also argue that the defendants erred in focusing on the traffic benefits of
imposing the rural preservation designation on Paradise Lane but ignoring the
traffic impact of the development of the surrounding land. Even if the defendants
did err in these respects, conduct is not arbitrary and capricious simply because it
is erroneous. Norton , 103 F.3d at 932.

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Owners fail to allege the lack of a reasonably conceivable rational basis for the

IGA. Consequently, we find that Paradise Lane Owners have failed to state a

cognizable substantive due process claim. 4

III. Conclusion

We find that Paradise Lane Owners failed to state a valid equal protection

claim. We also find that they failed to state a cognizable substantive due process

claim. Because we hold that dismissal was proper, we need not address Paradise

Lane Owner’s argument that the district court erred in striking newspaper

clippings attached to their complaint. See Griffin v. Davies , 929 F.2d 550, 554

(10th Cir. 1991) (“We will not undertake to decide issues that do not affect the

outcome of a dispute.”).

Accordingly, the district court’s dismissal of Paradise Lane Owners’ claims

is AFFIRMED. Appellees’ motion for leave to file sur-reply brief is denied.

4
Because we find that Paradise Lane Owners have failed to allege sufficient
facts to satisfy the arbitrary and capricious prong of a substantive due process
claim, we need not address whether they were deprived of a property or liberty
interest protected by the Due Process Clause.

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