Hatch v. Boulder Town Council

F IL E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 19, 2006
U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

JULIAN HATCH, doing business as
Freedom From R eligion; LY N NE
M ITCHELL, doing business as M atch,

Plaintiffs-Appellants,

v. No. 04-4124

BO ULD ER TOW N C OU NC IL;
B OU LD ER PLA N N IN G
C OM M ISSIO N ,

Defendants-Appellees.

A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R T H E D IST R IC T O F D IST R IC T O F U TA H
(D .C . N o. 2:01-cv-71-PG C )

Submitted on the briefs: *

Budge W . Call, Salt Lake City, Utah, for Plaintiffs-Appellants.

Craig T. W entz of Christensen & Jensen, P.C., Salt Lake City, Utah, for
Defendants-Appellees.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Before T Y M K O V IC H , PO R FILIO , and B A L D O C K , Circuit Judges.

T Y M K O V IC H , Circuit Judge.

Plaintiffs Julian Dean Hatch and Lynn M itchell are residents of and

property owners in the town of Boulder, Utah. They filed this civil rights

complaint against defendants in January 2001, alleging a plethora of

constitutional violations concerning zoning, perm itting and road maintenance

issues. The district court concluded that m ost of plaintiffs’ claim s were barred by

res judicata (claim preclusion) based on prior suits filed in the federal district and

U tah state courts. The court further concluded that plaintiffs’ rem aining claim s

should be dism issed for various other reasons, including lack of ripeness,

conclusory allegations, and failure to state a claim under 42 U.S.C. § 1983.

Plaintiffs now appeal from the court’s order denying their motion for sum m ary

judgm ent and granting the defendants’ cross m otion for sum m ary judgm ent. 1

Faced with a thirty-eight page, verified first amended com plaint containing

sixty-nine separate paragraphs of factual allegations, the district court attempted

to unravel the knot by essentially dividing plaintiffs’ lengthy factual allegations

into two pieces. First, it determ ined that the doctrine of claim preclusion barred

1
Plaintiffs filed a Rule 59 motion after judgment, which the district court
denied. Their notice of appeal does not purport to appeal from the denial of their
Rule 59 motion.

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all of plaintiffs’ claim s that were based on facts that arose prior to final judgment

in the form er actions. Second, it determ ined that the remaining claim s, which

arose after final judgment in the prior actions, could be resolved on the m erits.

U nfortunately, this m ethod of applying claim preclusion created certain problem s

w e cannot resolve on appeal. W e m ust therefore reverse the disposition of som e

of plaintiffs’ claim s, and remand them for further consideration. 2

O ur four-part analysis begins by describing the issues litigated in the tw o

prior actions. W e then set out the applicable U tah and federal law of claim

preclusion. Next, we apply that law to the claim s asserted in plaintiffs’ current

complaint. Finally, we review the district court’s analysis of the claim s it found

were not precluded by the prior actions.

I. Issues litigated in prior actions

A . Septem ber 26, 1996 § 1983 Suit

In 1996, Hatch filed a 42 U.S.C. § 1983 civil rights suit in Utah federal

district court against B oulder, its mayor, town clerk, and members of its town

council. His complaint charged, among other things, that in June 1995, Boulder

2
As an alternative ground for affirmance of the district court’s decision,
defendants argue that plaintiffs’ claims, arising prior to final judgment, were
actually litigated in the previous actions and hence are now barred either by claim
preclusion or by issue preclusion. The record, however, is insufficient for us to
determine whether plaintiffs’ current claims were actually litigated, to the extent
necessary to result in preclusion. Defendants are of course free to re-assert this
argument on remand, with appropriate support.

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enacted a business license ordinance without complying with Utah’s Open and

Public M eetings Act, and that his business, “Freedom from Religion” (FFR),

which had been engaged in selling beer prior to the enactm ent of this ordinance,

should have been allowed to continue selling food and beer.

Hatch further alleged that the Tow n Council passed a second ordinance

restricting the sale of alcoholic beverages that lim ited to two the number of new

class A liquor licenses that could be issued. Hatch contended that the Town

Council failed to comply with the Open and Public M eetings Act when it passed

this ordinance. He also contended that on July 31, 1995, the Town Clerk

approved beer license applications on behalf of other businesses, but not FFR.

On August 10, 1995, the Tow n Council m et and im posed a requirement on

FFR that it obtain approval from the Departm ent of Agriculture and the Health

Departm ent before selling food from its prem ises. Hatch contended that this

requirement was essentially a pretext to run him out of business. Eventually, on

Septem ber 22, 1995, the Council issued FFR a business license, authorizing it to

conduct “Retail sales of food and cam ping supplies.” Aplee. Supp. App., Vol. I

at S-199. Hatch contended that the unjustified delay in issuing him a business

license, and the lim ited nature of the license ultim ately issued, deprived FFR of

“its constitutionally protected property right to m aintain its business, which

includes the right to sell beer.” Id. at S-200.

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 Apparently, Hatch later added a claim that Boulder violated his due process

rights by interfering with his business sign. 3 Hatch’s claims proceeded to jury

trial. 4 O n A pril 14, 1999, a jury entered a special verdict, finding that the Tow n

had failed to give Hatch due process in connection with his retail business, his

cam ping business, and his business of selling beer. It rejected his claim ,

however, that the Tow n had violated due process in connection with the

m aintenance of his sign. The jury awarded Hatch a total of $86,000 in actual

damages for these alleged violations. It does not appear that either party appealed

from this verdict.

B . July 12, 1999 Petition for R eview

Hatch and M itchell were petitioners in a “Petition for Review of Decision

on Conditional Use Perm its and Request for Injunctive Relief,” filed in Utah state

court against Boulder and its Town Planning Com m ission in 1999. They

requested judicial review of the conditional use permits the Boulder Town

Planning Com m ission granted on February 10, 1999, to their neighbors and

adjacent land owners, Sam Stout and Rhea Thom pson, for their construction

business. They complained that the perm its had been granted in an arbitrary,

3
The record does not contain a copy of this amendment.
4
In addition to a claim for “civil rights violation” pursuant to § 1983, Hatch
included claims for “deprivation of property” and for “assault and battery” against
Larry Davis, husband of the Tow n Clerk, who allegedly assaulted him during a
Town Council meeting.

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capricious, and illegal m anner, including the Com m ission’s failure to adopt an

official m ap setting forth com m ercial districts and a plan for future developm ent.

The state district court determ ined that Boulder’s zoning ordinance was not

arbitrary, capricious, or illegal, that the comm ercial designations in the ordinance

were legal and not ambiguous, and that the Tow n had properly awarded the

challenged conditional use perm its. Hatch and M itchell appealed to the Utah

Court of Appeals, which reversed the district court on the validity of the zoning

ordinance, finding that the Tow n had failed to present any evidence that a proper

zoning m ap had accompanied the text of the zoning ordinance when it was

presented to the public and to the Town Council for approval. Hatch v. Boulder

Town Council, 21 P.3d 245, 248 (U tah Ct. App. 2001). 5 In light of this holding, it

found plaintiffs’ rem aining claim s m oot. Id. at 249.

II. L aw of claim preclusion

A . C laim -sp litting principle

Before discussing the specific elem ents of U tah and federal law of claim

preclusion, we narrow our focus to the key issue in this case. Although plaintiffs

attack the district court’s claim preclusion analysis on a number of points, we

perceive the key issue to be whether plaintiffs’ current complaint represents an

im perm issible attem pt to split their claim s. Stone v. Dep’t of Aviation, 453 F.3d

5
Plaintiffs incorrectly state in their brief that this decision was reached by
the Utah Supreme Court.

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1271, 1278 (10th Cir. 2006) (“A plaintiff's obligation to bring all related claim s

together in the same action arises under the comm on law rule of claim preclusion

prohibiting the splitting of actions.”).

The Restatement (Second) of Judgm ents § 24 (1982) enunciates the general

rule concerning “claim splitting”:

(1) W hen a valid and final judgm ent rendered in an action
extinguishes the plaintiff’s claim pursuant to the rules of m erger or
bar . . . the claim extinguished includes all rights of the plaintiff to
rem edies against the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of which the
action arose.

(2) W hat factual grouping constitutes a “transaction”, and what
groupings constitute a “series”, are to be determ ined pragmatically,
giving weight to such considerations as whether the facts are related
in tim e, space, origin, or m otivation, whether they form a convenient
trial unit, and whether their treatm ent as a unit conform s to the
parties’ expectations or business understanding or usage.

(em phasis added).

The question for us, then, is whether the facts that form the basis of

plaintiffs’ current claim s (the 2002 am ended com plaint) are part of the sam e

“transaction” they asserted in the previous actions. This question is determ ined

by the m anner in which the facts constituting the transaction are grouped. As w ill

be demonstrated, the district court grouped all facts arising prior to the final

judgm ents in the previous actions as a single transaction.

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 B . C hoice of preclusion law

In the case of a state court judgm ent, the state law where the judgm ent was

entered (here, Utah) applies. See 28 U.S.C. § 1738 (full faith & credit statute);

Fox v. M aulding, 112 F.3d 453, 456 (10th Cir. 1997) (“W e must, therefore,

ascertain what preclusive effect [Utah] would give its own decision before we

m ay know what effect it should be given in the federal court.”) (quotation

om itted). In the case of the § 1983 suit, federal law of preclusion applies. Yapp

v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999).

C . U tah claim preclusion law

U nder U tah law :

In order for claim preclusion to bar a subsequent cause of
action, a plaintiff m ust satisfy three requirem ents:
First, both cases m ust involve the sam e parties or their privies.
Second, the claim that is alleged to be barred must have been
presented in the first suit or m ust be one that could and should have
been raised in the first action. Third, the first suit m ust have resulted
in a final judgm ent on the merits . . . . All three elements m ust be
present for claim preclusion to apply.

M acris & Assocs., Inc. v. Neways, Inc., 16 P.3d 1214, 1219 (Utah 2000).

1. Sam e parties or their privies

It is uncontested that both plaintiffs were parties to the 1999 Utah action.

This element of claim preclusion analysis is therefore satisfied.

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 2. C laim s that could and should have been raised

Plaintiffs advance three reasons w hy their claim s in this action either could

not or should not have been raised in the earlier, state court action. First, the

suits are not the same cause of action. Second, the action for judicial review they

pursued in state court “does not provide for damages or the relief contemplated

under § 1983; and does not provide for the other claim s asserted, such as

procedural due process and the right to a meaningful hearing under federal law.”

Aplt. Opening Br. at 41. Third, they were not obligated to raise claim s that arose

after the filing of their com plaint in the earlier action.

Only plaintiffs’ first and third argum ents have merit and therefore lim it the

application of claim preclusion to their claim s.

a. Sam e cause of action

“[F]or the doctrine of res judicata to preclude a subsequent cause of

action . . . the cause of action in the present suit m ust be identical to the one

brought in the prior suit.” M acris, 16 P.3d at 1221. “Identity” does not refer to

an exact identity between the legal theory of the claim s brought in the first and

second actions; rather, the question is whether there is an “identity of facts and

evidence between the two claim s.” Id. Here, the district court was m istaken in

failing to recognize the lack of identity between the facts and evidence underlying

som e of the claim s raised in the prior state court action and those raised in this

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action, a factor that should have prevented the application of claim preclusion. 6

On rem and, therefore, the district court should carefully analyze this elem ent as it

pertains to each of the claim s we remand for further consideration.

b. A vailability of relief

Plaintiffs’ second argum ent, once appropriately narrowed, is easily

resolved. It is essential to notice the scope of plaintiffs’ argum ent on appeal.

They are not arguing that the limited nature of a proceeding for review of a

conditional use perm it under Utah law did not perm it them to raise unrelated

claim s, such as their claim s about hindrance of subdivision developm ent, denial

of a beer license, being excluded from the city library, etc. They sim ply argue

that their federal constitutional claims pertaining to the conditional use perm it

could not have been brought in a petition for review proceeding.

A lthough the statute under which plaintiffs sought judicial review,

Utah Code Ann. § 10-9-1001 (subsequently renumbered as Utah Code Ann.

§ 10-9a-801), does not expressly provide an opportunity to raise federal

constitutional claims, the Utah courts have considered and determ ined both state

and federal constitutional claim s in actions for review of, or challenging,

6
Claims to which claim preclusion does not appear to apply for this reason
include plaintiffs’ complaint about subdivision development (complaint, ¶ 10-12);
their complaint about conveyance of the adjacent cul-de-sac (complaint, ¶ 62);
plaintiff M itchell’s complaint about licensing issues (complaint, ¶ 12-14, 63); and
M itchell’s complaint about exclusion from the Town library (complaint, ¶ 42).

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m unicipal land use decisions. See, e.g., Anderson v. Provo City Corp., 108 P.3d

701, 707-09, 710 (Utah 2005) (addressing state equal protection and federal

right-to-travel claims); Patterson v. Am. Fork City, 67 P.3d 466, 473-76

(U tah 2003) (considering federal equal protection and due process claim s).

Plaintiffs rely specifically on Utah Code Ann. § 10-9a-801(3)(a)(ii), which states

that “the courts shall . . . determ ine only whether or not the decision, ordinance,

or regulation is arbitrary, capricious, or illegal.” (emphasis added). The district

court reasoned that this language refers only to the standard of review, and does

not lim it the type of ancillary, constitutional m atters that a court conducting a

review of a municipal land use decision m ay consider. W e agree.

c. Filing date and claim -splitting

The district court found that plaintiffs could have and should have included

in the Utah case all of their claim s that arose from facts that occurred prior to the

resolution of the Utah state court proceeding. See Aplt. App. at 450 (em phasis

added) (“To the extent[] that a few of plaintiffs’ federal § 1983 claim s arise from

alleged facts occurring subsequent to the resolution of the state court action, such

claim s are not precluded under the court’s claim preclusion analysis.”). This

finding, how ever, does not follow from the applicable Utah law.

In M acris, 16 P.3d at 1219, the defendant argued that the plaintiff’s claim s

were barred by claim preclusion because they had not been included in a prior

action, and the plaintiff “knew of its claims against [defendant] before the trial in

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M acris I began and should therefore have amended its complaint in that action

and asserted the claim s now pursued in the present action.” Id. (em phasis in

original). The Utah Supreme Court rejected this argum ent, holding instead that

“a plaintiff need only include claim s in a suit for res judicata purposes if the

plaintiff was aware of the facts upon which the later claim s were based at the tim e

the first suit was filed.” Id. at 1220 (em phasis added).

Plaintiffs filed their Utah state court action on July 12, 1999. Thus, any

causes of action based on facts that occurred after that date need not have been

included in the case for claim -preclusion purposes. This differs from the district

court’s conclusion, which would have barred any claim s that arose prior to

Novem ber 10, 1999, when the state court ruled in favor of plaintiffs on their

claim s. Although this is a difference of only four m onths, it is a difference

required under U tah law .

3. Final judgm ent on the m erits

Plaintiffs also contend that the prior state proceeding did not result in a

final judgm ent on the merits of their claim s. The Utah Court of Appeals, after

ruling in plaintiffs’ favor on the invalidity of Boulder’s zoning ordinance, stated

“[t]he ordinance’s invalidity renders m oot [plaintiffs’] other claim s.” Hatch,

21 P.3d at 249. Defendants argue that this is in fact a “judgm ent on the m erits,”

as to the invalidity of the zoning ordinance claim . Plaintiffs argue, however, that

since the prior judgm ent did not adjudicate their other claim s on the m erits

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(it m erely found them m oot), the judgm ent cannot have a preclusive effect on the

claims that the court found m oot, or any other claims they might have raised.

Had the state court resolved plaintiffs’ claim s entirely on m ootness

grounds, there would be no final judgm ent from which claim preclusion could

result, because Utah follows the general rule that a dism issal for lack of

jurisdiction does not bar another action by the plaintiff on the sam e claim . Snyder

v. M urray City Corp., 73 P.3d 325, 332-33 (Utah 2003); Gibson v. Utah State

Teachers’ Ret. Bd., 105 P.2d 353, 355 (U tah 1940). See also Restatement

(Second) of Judgm ents § 20(1)(a). A final judgm ent that found some claim s

m oot, however, and resolved at least one of them on the merits, is different. The

final judgm ent here, on one of plaintiffs’ claims, satisfied the requirem ent of a

final judgm ent for claim -splitting rules. W e believe the Utah courts w ould

conclude that the judgm ent had a preclusive effect as to any claim s that should

have been brought, but were not.

4. C onclusion

The disposition of the prior state court action bars Hatch and M itchell from

bringing any claim involving identical facts or evidence that arose prior to the

filing of their Utah state court action on July 12, 1999.

D . Federal law of claim preclusion

If the judgm ent reached in the prior federal suit only barred claim s that

accrued prior to the filing of Hatch’s September 1996 complaint, it would not

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preclude any of plaintiffs’ claim s. Since the district court broadly determ ined

that the judgm ent also barred any claim s that could have been raised prior to the

April 1999 final judgment in the prior suit, however, we discuss the relevant law ,

to perm it the district court to apply the law m ore narrowly on rem and.

Under federal law, the application of claim preclusion requires that three

elements be satisfied: “(1) a judgm ent on the merits in the earlier action;

(2) identity of the parties or their privies in both suits; and (3) identity of the

cause of action in both suits.” Yapp, 186 F.3d at 1226. The district court

correctly noted that the prior federal court judgm ent involved only Hatch and

therefore did not preclude any claim s by M itchell in this case. The only

m eritorious argum ent that Hatch makes pertains to the third element: whether the

cause of action sought to be precluded is identical with that raised in the prior

action.

Hatch makes two argum ents on this point. First, he argues that “[t]he

actions alleged by Hatch in this case could not have been raised in Hatch I [the

§ 1983 suit], because they occurred after September 1996 when Hatch I was

filed.” A plt. Opening Br. at 38. Second, he argues that the only “issues” actually

presented in the first case were those involving Hatch’s business license for beer

sales and cam ping in 1995, and the destruction of his sign in 1995. In other

words, Hatch asserts that the causes of action now advanced are not identical with

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those that were litigated in the prior action, and that therefore claim preclusion

should not apply.

1. A rising after Septem ber 1996 filing date

This circuit has adopted the transactional test contained in the Restatement

(Second) of Judgm ents § 24. Yapp, 186 F.3d at 1227. “The transactional

approach provides that a claim arising out of the same ‘transaction, or series of

connected transactions’ as a previous suit, which concluded in a valid and final

judgm ent, will be precluded.” Id. “W hat constitutes the same transaction or

series of transactions is ‘to be determ ined pragmatically, giving weight to such

considerations as whether the facts are related in tim e, space, origin, or

m otivation, whether they form a convenient trial unit, and whether their treatm ent

as a unit conform s to the parties’ expectations or business understanding or

usage.’” Id. (quoting Restatem ent § 24).

Just as in the case of Utah state preclusion law, a question is presented

under federal claim preclusion law about the cutoff date for Hatch’s responsibility

to add all available claim s to his prior complaint. The district court concluded

that the A pril 14, 1999, judgm ent in the prior § 1983 suit precluded any claim s

based on facts that were available to Hatch before that date. Aplt. App. at 444

(“To the extent that the complaint in this case raises federal claim s by Hatch

based on facts occurring prior to the conclusion of his previous § 1983 action,

such claim s are dism issed with prejudice.” (emphasis added)). The question,

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however, is not whether the claim s raised in Hatch’s new complaint are based on

facts that occurred prior to the conclusion of his previous action. Instead, it is

whether the new claim s arose out of the same transaction as the claim s in the

prior action, and should therefore have been included in the prior action.

Under the transactional test, a claim should not be precluded m erely

because it is based on facts that arose prior to the entry of judgm ent in the

previous action. See M itchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir.

2000) (stating in dicta “we agree with those courts holding the doctrine of claim

preclusion does not necessarily bar plaintiffs from litigating claim s based on

conduct that occurred after the initial com plaint was filed” in the previous suit.).

The filing of the plaintiff’s complaint frames the scope of litigation, establishing

a transactional nexus into which facts and claim s are fitted or excluded for

purposes of claim preclusion. “New” claims, arising after the complaint has been

filed, but before judgm ent, m ay be excluded from this transactional nexus, and

thus be litigated in a subsequent action. As the Second Circuit has explained:

For purposes of res judicata, the scope of litigation is framed by the
complaint [in the prior action] at the tim e it is filed. The res judicata
doctrine does not apply to new rights acquired during the action
which might have been, but which were not, litigated. Although a
plaintiff may seek leave to file a supplem ental pleading to assert a
new claim based on actionable conduct which the defendant engaged
in after a lawsuit is com m enced, he is not required to do so.

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Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 369-70 (1997) (citations

and quotation om itted). See also M itchell, 218 F.3d at 1202-03 (suggesting, in

dicta, that this court would follow Second Circuit’s approach; and collecting

cases). 7 See also, e.g., Rawe v. Liberty M ut. Fire Ins. Co., 462 F.3d 521, 530

(6th Cir. 2006) (following m ajority rule that “the opportunity to file a

supplemental complaint [to allege ongoing alleged wrongdoing] is not an

obligation”); 18 Charles Alan W right, Arthur R. M iller, & Edward H. Cooper,

Federal Practice & Procedure § 4409, at 213 (2d ed. 2002) (sam e).

This does not mean, however, that a plaintiff can avoid supplem enting his

com plaint with facts that are part of the same transaction asserted in the

com plaint, in the hope of bringing a new action arising out of the sam e

transaction on som e later occasion. Under the transactional test, a new action will

be permitted only where it raises new and independent claim s, not part of the

previous transaction, based on the new facts. See Storey v. Cello Holdings, LLC,

347 F.3d 370, 384 (2d Cir. 2003) (“W here the facts that have accumulated after

the first action are enough on their own to sustain the second action, the new

facts clearly constitute a new ‘claim ,’ and the second action is not barred by

7
Hatch’s lack of any obligation to supplement his complaint with new and
independent claims based on facts accruing after the complaint was filed should
be distinguished from his duty to supplement with claims arising from the same
transaction that matured (due to completion of an administrative process, for
example) after the filing of his complaint. See Stone, 453 F.3d at 1278-79.

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res judicata.”) (emphasis added). 8 Thus, any claim s that Hatch now asserts that

are part of the same transaction asserted in his previous complaint should be

precluded, while new and independent claim s m ay go forward.

W e further note that even if H atch has raised a new and independent claim ,

this claim could still be precluded, if it falls under one of several exceptions to

the rule that only claims related to the existing transaction are precluded. Such

exceptions arise, for example, where the judgment entered in the prior action

(1) incorporated a settlement intended to govern future, related transactions

betw een the parties, see 18 W right, M iller & Cooper, Federal Practice &

Procedure § 4409, at 220; (2) resolved claims for declaratory or injunctive relief

dealing with conduct persisting through trial or into the future, see id. at 221; or

where (3) “the object of the first proceeding was to establish the legality of the

continuing conduct into the future,” id. at 232; see also M onahan v. N.Y. City

Dep’t of Corr., 214 F.3d 275, 288-89 (2d Cir. 2000).

2. Identity w ith previous causes of action

8
As a leading commentator explains, “[a] subsequent action that simply
alleges new facts in support of claims asserted in a prior action will usually not
avoid application of the claim preclusion doctrine. However, if such [new] facts
in themselves establish independent grounds for a claim against the defendants in
the previous action, claim preclusion does not apply.” See 18 James W illiam
M oore, M oore’s Federal Practice § 131.22[1], at 131-55 (3d ed. 2006) (emphasis
added).

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 Hatch’s second argum ent, that his new causes of action are not “identical”

to those previously litigated, is also governed by the transactional test. The

causes of action need not be “identical” in the sense that they raise the sam e

claim s based on the same facts. All that is required is that they arise “out of the

same ‘transaction, or series of connected transactions’ as [the] previous suit.”

Yapp, 186 F.3d at 1227. This also is a matter for the district court to resolve on

remand.

3. C onclusion

On remand, the district court should therefore consider whether the facts on

which Hatch bases his new claim s are part of the sam e transaction as those

asserted in his previous complaint, or whether they give rise independently to a

new claim . If the new claim is independent, the district court should consider

whether any of the above-m entioned exceptions applies to the prior judgm ent in

favor of Hatch. If the claim s are not part of the same transaction and if no

exception applies, then only those claim s that accrued prior to the filing of

Hatch’s complaint, in September 1996, should be considered precluded in the

current action by the prior § 1983 suit.

III. A pplication

W e review the district court’s application of the substantive law of claim

preclusion de novo. W ilkes v. W yo. Dep’t of Employment, 314 F.3d 501, 503

(10th Cir. 2003). The court concluded that plaintiffs were not precluded from

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bringing claim s based on the factual allegations contained in paragraphs 57-61

and 66-69 of their complaint. It further concluded that plaintiffs’ claim s based on

the remaining paragraphs of their complaint were barred by claim preclusion

principles. W e conclude that the following claim s were precluded by the

judgm ent reached in the prior state action, filed in July 1999:

A . Land U se O rdinance (com plaint ¶ 14-19; 22; 24-30; 49; 51;
54-61; 66)

Plaintiffs contend that defendants illegally passed an unconstitutional land

use ordinance (LUO) to restrict their use and enjoym ent of their properties, and

enforced the ordinance in an arbitrary and capricious m anner. Specifically,

plaintiffs com plain that the LUO, adopted M ay 29, 1998, designates their

properties (containing existing com m ercial developm ent) as residential areas,

restricted to single family houses. They claim that the LU O does not perm it them

to obtain a conditional use perm it for comm ercial use, does not allow any

variances, and contains no provision for appeal. Finally, they assert that there is

no actual, designated comm ercial zone in the town of Boulder to which they can

relocate their businesses.

Plaintiffs also assert that the M ay 1998 LU O was defective (among other

reasons) because it was not accom panied by a map. They complain that the

Boulder Planning Com m ission m ade changes to the LU O, without proper notice

to plaintiffs or to the public. They further complain that they were not perm itted

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to appeal to the Board of Adjustm ent from decisions m ade at two November 1998

Town Council hearings that m odified the LUO. Finally, plaintiffs contend that on

M arch 8, 2000, the Tow n adopted a new LUO, which states that “no actual

Com m ercial zone physically exists,” Aplt. App. at 35, and that any comm ercial

developm ent would require a conditional use perm it. They claim that this

effectively foreclosed their ability to develop their properties, because no

conditional use perm its are perm itted in their zone for comm ercial use, and

because non-conform ing uses are no longer perm itted under the LUO.

A m ajor portion of this claim is precluded by plaintiffs’ prior state court

action. Plaintiffs should have raised their existing zoning issues with Boulder at

the same tim e as they raised their complaints about the issuance of conditional

use perm its. Their complaint about the perm its in 1999 rested on the same types

of assertions of illegalities by the Town that they com plain of now. The only

exception appears to involve the Tow n’s actions in M arch 2000, concerning the

revised LU O, which could not have been raised in the prior action.

B . G eneral Plan M ap (com plaint ¶ 16-19; 22; 47)

Boulder adopted a General Plan in Decem ber 1997, using an existing use

m ap that had been designated for official use by the Tow n in connection with the

Plan. Plaintiffs contend that the designation of this m ap violated U tah statutes.

Plaintiff M itchell complains that she attended a Boulder Planning

Com m ission M eeting on January 22, 1998, at which she discovered that the

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General Plan M ap had been “colored in” showing existing com m ercial properties.

Plaintiffs’ properties, however, had not been colored in as existing “com m ercial”

properties.

On January 28, 1998, plaintiffs m ade a request to purchase a copy of the

General Plan Existing Use M ap. Boulder responded on February 10, 1998, stating

that the m ap would need to be copied, but that this w ould be difficult because it

was a large map. Plaintiffs sent letters to various defendants on M arch 3,

M arch 15, and M ay 27, 1998, concerning the m ap problem s and the failure to

renew their business licenses. These letters were not answered.

Plaintiffs state that at the February 10, 1999, Planning Com m ission

m eeting, the Com m ission reviewed a different m ap, also known as the “Boulder

Town Existing Land Use M ap,” created by the Five County Governm ent

Association in January 1999. This m ap showed plaintiffs’ properties as existing

com m ercial use. The Com m ission, however, refused to adopt this m ap because

the Town Council stated it w as incorrect.

Plaintiffs’ “General Plan M ap” claim s are precluded by the prior state court

action. This is true for the same reasons we have stated in connection with the

new LUO claim s. The General Plan M ap allegations could have and should have

been raised at the same tim e as the conditional use perm it claim s in their prior

state court action, filed in July 1999.

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 C . Boulder Excavating C om pany (com plaint ¶ 31-41; 43-46; 50;
52; 65; 67-68)

Plaintiffs complain that since September 1998, Boulder has perm itted

Boulder Excavating Com pany (BEC), a heavy construction business with

buildings and a storage yard, to be located next to plaintiffs’ property in the

m edium -density residential district, notwithstanding the Tow n Council’s refusal

to designate M itchell’s property as existing com m ercial on the General Plan m ap.

Plaintiffs also com plain that BEC was permitted to erect business signs,

notwithstanding a lack of sign perm its, and was granted a business license in

Novem ber 1998, notwithstanding the lack of a conditional use perm it.

On February 10, 1999, the Planning Com m ission granted conditional use

perm its to BEC. Plaintiffs assert that the Com m ission did not fully address their

issues, and that the few lim itations placed on the perm it have not yet been

im plemented. Plaintiffs filed an appeal from the grant of the perm its with the

Town Clerk. They com plain that the Com m ission perm itted BEC to continue its

operations even though their appeal was pending. They further contend that

although they filed a governm ent records request for the perm its, they did not

receive copies of the perm its until after the appeal period had expired. Plaintiffs

state that when they received the perm its, they discovered that Boulder had

waived item s required by the LUO, without any discussion at the m eetings,

effectively sandbagging their appeal.

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 On June 1, 1999, Boulder m ailed plaintiffs notice of a Tow n m eeting set for

the next day, at which their appeal of BEC’s conditional use perm it would be

discussed. Plaintiffs were out of town, did not know that their appeal would be

discussed, and were unable to attend the meeting. BEC’s attorney was perm itted

to speak about the appeal, in plaintiffs’ absence.

Plaintiffs were perm itted to tell their side of the story at a June 17, 1999

Town m eeting, at which BEC’s attorney was not present. They complain,

however, that copies of the LU O, the zoning m ap, and the General Plan existing

use m ap w ere not available at the m eeting. The Tow n Council denied plaintiffs’

appeal and upheld the Planning Com m ission’s decision to issue BEC conditional

use perm its.

Plaintiffs com plain that on July 14, 1999, BEC filed a building perm it

application to construct a building to house a com pany backhoe and other

equipm ent. They contend that the perm it application was defective because it was

not properly filled out for a comm ercial building, but that the Tow n Building

Official nevertheless allowed the construction to go forward. They also com plain

that the building was built in a public right of way blocking the street leading to

the M itchell property.

Plaintiffs contend that the Tow n, knowing that their LUO had been

declared unconstitutional by the Utah Supreme Court and that a new LUO was

about to be passed, contacted BEC and obtained applications from them for a

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wide variety of businesses, including an RV park, lodging, cabins, tent sites, a

gift shop, an arcade, a swim m ing pool, a com m ercial greenhouse, and a hog farm .

Plaintiffs contend that these uses are inconsistent with the General Plan and the

LU O . The applications w ere accepted in late February 2001, and the Town

passed a temporary LU O on February 28, 2001. Plaintiffs contend that the Town

violated Utah law by approving these applications, when a tem porary LUO is

designed only to preserve the status quo.

Nearly all of this claim is precluded, because it is essentially identical to

the claim plaintiffs previously litigated in state court, or because it involves

allegations that could have and should have been m ade in the previous action.

The only exception appears to be the allegations involving the July 14, 1999

perm it applications and other perm it applications approved in February 2001,

which could not have been raised in the previous action.

D . R em aining claim s

The remaining claim s contained in plaintiffs’ complaint do not appear, on

the record before us, to be subject to claim preclusion. 9 This is true either to the

9
These claims include, but may not be limited to, the following:

Hindrance of subdivision development (complaint ¶ 10-12);
Conveyance of adjacent cul-de-sac (complaint ¶ 62);
Denial of business license applications (complaint ¶ 12-14; 63);
Boulder business brochure (complaint ¶ 20);
Sign ordinance violations (complaint ¶ 23);
(continued...)

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extent they arose after the filing of the complaint in the previous actions, or

because there is not a sufficient factual nexus between those claim s and the

previous actions that the claim s should have been brought in the prior actions.

It m ay be, however, that the district court would conclude otherwise after careful

application of the rules set forth in this opinion. It m ay also be true that these

claim s actually were litigated in either or both of the previous actions, thus

precluding either Hatch or both plaintiffs from bringing them now. If defendants

can establish this with appropriate evidence, these claim s would also be

precluded. Additionally, defendants m ay also have other defenses that the district

court did not reach as to these claim s, such as the statute of lim itations, or

plaintiffs’ failure to state a claim for constitutional violations.

IV . A nalysis of non-precluded claim s

The district court determ ined that the allegations contained in nine

paragraphs of plaintiffs’ complaint (paragraphs 57-61 and 66-69) were not

precluded by either of the prior suits. The court granted sum m ary judgm ent to the

defendants on these allegations, however, finding that they were “in reality, local

9
(...continued)
C omplaints about obtaining town records, and hours of operation of tow n
buildings, to the extent arising after plaintiffs’ complaint in prior litigation;
and
M itchell’s exclusion from tow n library (complaint ¶ 42).

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land disputes which are better reviewed under state law” rather than § 1983

claim s. Aplt. A pp. at 452.

“W e review the district court’s grant of summary judgment de novo,

applying the same legal standard that should have been used by the district court.”

Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (quotation

and alteration omitted). Summary judgment is appropriate “if the pleadings,

depositions, answ ers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

A . Paragraphs 57 to 61

Plaintiffs contend that they attem pted on m any occasions, from January

1998 forw ard, to obtain a copy of the G eneral Plan M ap. They claim they were

finally provided a copy in February 2000. They assert, however, that this m ap is

flawed and inaccurate and should not be viewed as an appropriate zoning m ap for

the LU O. They further assert that defendants have failed to m ark their properties

in red on the General Plan map; that defendants clarified the LU O after claim ing

that it was already “clear” during the course of the prior litigation brought by

plaintiffs; that Boulder has im properly classified their property as high-density

residential; and that this zoning classification prohibits them from applying for

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comm ercial conditional use perm its. They further assert that without a designated

com m ercial zone in the town, they cannot relocate their businesses.

W e agree with the district court’s analysis. These claim s should be

exhausted administratively and/or pursued through appropriate zoning appeals and

other m easures, rather than being brought initially as § 1983 claims. Plaintiffs

also failed to show that they attem pted to apply for a conditional use perm it.

Thus, their claim s appear to be unripe and/or premature.

B . Paragraphs 66 through 69

In these paragraphs of their first amended com plaint, plaintiffs assert that

after the Utah Court of Appeals ruled that the existing LUO was illegal, Boulder

passed a temporary LUO. They assert that prior to passage of the new LUO, the

Town contacted BEC and the Stouts and accepted business license applications

from them for a wide variety of businesses, in order to grandfather these

businesses in before the new LUO was in place. Plaintiffs further assert that the

Town subverted the purpose of a temporary LUO, which is to preserve the status

quo, by issuing conditional use perm its under the emergency ordinance, and by

deciding that conditional use perm its provided under the form er LUO were still

valid.

The district court found that these allegations were conclusory and did not

state a claim for relief under § 1983. W hen asked at his deposition whether he

had any specific knowledge of Boulder’s having encouraged BEC and Stout to

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file the applications, Hatch adm itted that he did not. Aplee. Supp. App., Vol. I

at S-74 (depo. p. 140). Similarly, M itchell denied any personal knowledge that it

was Boulder that urged the Stouts to file the applications. Id. at S-133, 134

(depo. pp. 136-37). W e agree with the district court that sum m ary judgm ent was

properly granted as to these claim s.

The judgm ent of the district court is A FFIRM ED in part, REVERSED in

part, and REM ANDED for further proceedings in accordance with this opinion.

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