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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