Opinion
Case No. 1:20-cv-00034-DBB-DBP
2022-11-08
Douglas BRUCE, an individual, Plaintiff, v. OGDEN CITY CORPORATION, an incorporated city in the State of Utah; and Michael P. Caldwell, in his Official Capacity as the Mayor of Ogden City Corporation, Defendants.
Aaron C. Garrett, Nathan R. Garcia, Nonprofit Legal Services of Utah, Salt Lake City, UT, for Plaintiff. Stephen F. Noel, Smith Knowles PC, Ogden, UT, Kenneth D. Brown, Snell & Wilmer LLP, Salt Lake City, UT, for Defendants.
Aaron C. Garrett, Nathan R. Garcia, Nonprofit Legal Services of Utah, Salt Lake City, UT, for Plaintiff. Stephen F. Noel, Smith Knowles PC, Ogden, UT, Kenneth D. Brown, Snell & Wilmer LLP, Salt Lake City, UT, for Defendants.
ORDER GRANTING [24] DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
David Barlow, United States District Judge
Plaintiff Douglas Bruce filed a complaint in this court asserting three § 1983 claims and a state tort claim against Defendants Ogden City Corporation (the "City") and its mayor, Michael Caldwell in his official capacity (together, "Defendants"). The claims arise out of Defendants' downzoning, use restrictions, and demolition order relating to a residential parcel of land owned by Plaintiff.
Verified Compl., ECF No. 2, filed March 16, 2020.
This matter is now before the court on Defendants' motion for summary judgment. For the reasons that follow, Defendants' motion for summary judgment is granted.
Def.'s Mot. Sum. J., ECF No. 24, filed Feb. 15, 2022.
BACKGROUND
The court addresses the record evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).
Plaintiff owns a piece of real estate with multiple residential structures in Ogden City, Utah (the "Property"). The Property is one tax parcel and is not subdivided into individual dwellings. It has two street addresses: 3166 Grant Avenue and 3172 Grant Avenue. 3166 Grant Avenue consists of a side-by-side duplex on the north portion of the Property. 3172 Grant Avenue consists of a side-by-side duplex in the front of the lot and a two-bedroom cottage in the rear. In total, the Property has three separate residential buildings with five residential living spaces. Additionally, it has five gas meters, five electric meters, and three water meters. The buildings on the Property were built in approximately 1907. At the time, Ogden City did not have any zoning ordinances.
Compl. ¶ 8. Plaintiff's complaint is verified. "[A] verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in [Rule 56(c)(4)]." Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988). Rule 56(c)(4) "requires that the affidavit be based on personal knowledge, contain facts which would be admissible at trial, and show that the affiant is competent to testify on the matters stated therein." Id. Plaintiff's verified complaint, as to the factual allegations in support of his claims, meets these requirements. And "[e]ven standing alone, self-serving testimony can suffice to prevent summary judgment." Janny v. Gamez, 8 F.4th 883, 901 (10th Cir. 2021) (quoting Greer v. City of Wichita, Kansas, 943 F.3d 1320, 1325 (10th Cir. 2019)).
Compl. ¶ 15.
Id. at ¶ 10. The City occasionally refers to the Property as 3166 Grant Avenue, but for purposes of this decision, 3166 Grant Avenue is used to designate the duplex on the north portion of the property, and 3172 Grant Avenue the duplex and cottage on the south side.
Id. at ¶ 11.
Id. at ¶ 12.
Id. at ¶ 8.
Id. at ¶ 13.
Id. at ¶ 14.
Id.
Plaintiff became the owner of the Property around August 1983. He subsequently rented out its residential units. At least since 2000, Plaintiff has lived in Colorado and has not resided on the Property.
Id. at ¶ 16.
Dep. Douglas Bruce 48:1-48:6.
Compl. ¶ 1; 2010 Letter from Planning Manager to Pl. Ex. J, at 1-3.
In 1984, the City adopted a community plan that encompassed the Property. It downzoned the area to R-2A. R-2A allows single-family and duplex-type development. Under this rezone, the Property became nonconforming because it did not have the lot area required for the number of buildings on the Property. However, it was grandfathered in.
Dep. Greg Montgomery 13:9-13:22.
Id. at 28:22-29:4.
Id. at 14:22-14:23.
Id. at 22:23-23:21.
Id. at 31:2-31:11.
On January 16, 2001, the City adopted a new zoning ordinance ("2001 Ordinance"). The ordinance rezoned properties that had been classified as two-family residential to single-family residential. Prior to its passage, the City placed notices in the local newspaper and issued press releases to inform the general public about opportunities to comment on the proposed ordinance. It also mailed a notice about the proposed ordinance's public hearing to property owners, including Plaintiff at his Colorado Springs post office box address.
Ordinance No. 2000-73 Ex. A, at 3.
Id. at 1.
2010 Letter from Planning Manager to Pl. Ex. J, at 1.
Id. at 2-3.
The 2001 Ordinance did not apply to legally established duplexes "currently located in the areas subject to rezoning," stating that they should "not be treated as non-conforming uses." The intent was that duplexes—meaning one duplex on one property—would not be required to seek the City's recognition of their nonconforming use. However, the Property is not a duplex; it is a group dwelling, meaning it has "two or more buildings on the lot."
Ordinance No. 2000-73 Ex. A, at 1.
Dep. Greg Montgomery 26:22-27:3.
Id. at 27:17-27:25.
On May 21, 2003, the water service was turned off to one of the Property's three buildings, the duplex at 3166 Grant Avenue.
Notice of Dangerous Building & Order to Abate Ex. C, at 3.
On October 7, 2004, the City informed Plaintiff that he had an illegal use on the premises due to having multiple duplexes ("2004 Notice"). The City required that Plaintiff "fill out an application to establish his . . . rights and the use with the zoning changes that happened." The City intended this process to record the grandfathered-in nonconforming uses. It was not a legal requirement, but the City highly encouraged property owners to participate. Plaintiff did not complete the application.
Dep. Jared Johnson 25:7-25:13.
Id. at 27:8-28:11.
Id. at 29:9-29:25.
Id. at 30:7-30:11; Dep. Greg Montgomery 48:4-48:8.
Dep. Jared Johnson 27:17-27:19.
On March 7, 2005, the Manager of Ogden City's Planning Division issued a Certificate of Noncompliance for the Property ("2005 Certificate"). The stated condition rendering the property in violation was the "group dwelling (three buildings with dwelling units) on a lot that allows only one dwelling unit." The certificate instructed Plaintiff that "[a]pproval must be obtained to continue a use as a group dwelling."
2005 Certificate of Noncompliance Ex. D, at 1.
Id.
Id.
In 2009, the City mailed Plaintiff a notice that the Property had been downzoned to single-family residential ("2009 Notice"). After receiving the 2009 Notice, Plaintiff attempted an administrative appeal. Ignoring his appeal, the City ordered that the two units in the building at 3166 Grant Avenue and the unit in the rear of 3172 Grant Avenue (the cottage) remain unoccupied and empty forever ("2009 Order"). The City instructed Plaintiff to board up those units. Plaintiff complied with the order against his will, causing him to lose the rental income from those three units. The City further ordered Plaintiff to only lease one of the two units in the 3172 Grant Avenue duplex at any given time as soon as either tenant then occupying the building moved.
Compl. ¶ 17.
Id. at ¶ 22.
Id. at ¶ 23, Answer ¶ 25 ("Defendants admit that Ogden informed Plaintiff that he could lease only one unit on the parcel at 3166 Grant Avenue at any given time."); see Dep. Jared Johnson 9:11-9:17 (clarifying that "3166 Grant Avenue" means the entire Property).
Compl. ¶ 23.
Id. at ¶ 24.
Id. at ¶ 25.
After its 2009 Order, the City periodically mailed notices to Plaintiff ordering Plaintiff to maintain the Property in certain ways and issued Plaintiff fines. The City received 38 calls for service at 3166 Grant Avenue from 2017 to 2019 and sent abatement crews to "secure the property, remove discarded junk and debris from the yard, and/or cut the weeds" on eleven occasions between July 2015 and November 2019. The City ordered Plaintiff to renovate the duplex at 3166 Grant Avenue after "vandals" started a fire in one of its units in 2018. The fire compromised the building's structural integrity and led to its ceiling collapsing.
Id. at ¶ 30.
Notice of Dangerous Building & Order to Abate Ex. C, at 3.
Id. at 3-4.
Compl. ¶ 31; Ex. C 4.
Notice of Dangerous Building & Order to Abate Ex. C, at 3.
Id. at 3, 8-14 (photos of damage).
In January 2020, Ogden City issued a Notice of Dangerous Building and Order to Abate to Plaintiff ("2020 Demolition Notice"). It informed Plaintiff that the City would imminently demolish the 3166 Grant Avenue duplex unless Plaintiff abated the problem or demolished the duplex himself within 15 days. Plaintiff did not abate the problem or demolish the duplex.
Compl. ¶ 33.
Id.
Administrative Proceedings of the Mayor of Ogden City Findings and Conclusions in Support of Demolition Order Ex. F ("2020 Hearing"), at 2.
On February 5, 2020, the City's Building Official petitioned the mayor to hold a hearing and order Plaintiff to show cause why the City should not abate the dangerous building. Notice was sent to Plaintiff. On March 6, 2020, Mayor Caldwell presided over the hearing ("2020 Demolition Hearing"). The Building Official, Plaintiff, and Plaintiff's attorney presented evidence and argument. At the conclusion of the hearing, Mayor Caldwell ordered the 3166 Grant Avenue duplex to be demolished. On April 8, 2020, the mayor signed an order to complete the demolition work on the 3166 Grant Avenue duplex ("2020 Demolition Order").
Id. at 1.
Id. at 1.
Compl. ¶ 34.
2020 Hearing, at 1.
Compl. ¶ 34.
Order of the Mayor of Ogden City, Utah to Complete Demolition Work at 3166 Grant Avenue, Ogden, Utah Ex. G ("2020 Demolition Order"), at 1-2.
Shortly thereafter, Plaintiff filed this lawsuit. The Complaint alleges that Plaintiff has been unable to rent three of the five units on the Property since 2009 causing a loss of rental income in the amount of $2,100 per month for a total of $327,600. This loss of income allegedly caused Plaintiff to be unable to maintain the 3166 Grant Avenue duplex, resulting in its current deteriorated condition. Plaintiff has been unable to sell the Property for "anything close" to what he deems to be fair market value due to the City's prohibition on renting three (four, once one of the tenants in 3172 Grant Avenue duplex vacates) of its five units. Further, he avers that he would net "very little if any payment for the Property" because he would have to cover the cost of demolishing two structures on the Property in order to bring it into compliance with the single-family zoning restriction.
Compl. ¶ 38.
Id. at ¶ 37.
Id. at ¶ 39.
Id.
In his verified complaint, Plaintiff asserts four causes of action: a deprivation of property without just compensation in violation of the Fifth Amendment's takings clause, a violation of procedural due process under the Fourteenth Amendment, a violation of substantive due process under the Fourteenth Amendment, and a state tort claim for intentional interference with business relations. Defendants filed a motion for summary judgment on February 15, 2022. The motion is now fully briefed and ready for decision.
See generally Compl. The fifth "Cause of Action" identifies the various kinds of relief Plaintiff seeks and is not a standalone cause of action.
ECF No. 15.
STANDARD
"A court 'shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " "[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." "Where no such showing is made, '[t]he moving party is "entitled to a judgment as a matter of law." ' "
CEW Properties, Inc. v. U.S. Dep't of Just., Bureau of Alcohol, Tobacco, Firearms, & Explosives, 979 F.3d 1271, 1276 (10th Cir. 2020) (quoting Fed. R. Civ. P. 56(a)).
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Id.
Defendants, "the moving parties, have the initial burden to show 'that there is an absence of evidence to support the non-moving party's case.' " "Once the moving parties meet this burden, the burden shifts to the Plaintiff[ ] to identify specific facts that show the existence of a genuine issue of material fact." " 'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,' summary judgment in favor of the moving party is proper."
Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1356 (10th Cir. 1994) (quoting Celotex, 477 U.S. at 325, 106 S.Ct. 2548).
Id. (citing Bacchus Indus., Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir. 1991)).
Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
"In applying this standard, [the court] view[s] the evidence and the reasonable inferences to be drawn from the evidence in the light most favorable to the nonmoving party." "[A] verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in" Federal Rule of Civil Procedure 56(c)(4). Rule 56(c)(4) "requires that the affidavit be based on personal knowledge, contain facts which would be admissible at trial, and show that the affiant is competent to testify on the matters stated therein." "There is nothing in [Rule 56] to suggest that nonmovants' affidavits alone cannot—as a matter of law—suffice to defend against a motion for summary judgment."
CEW Properties, 979 F.3d at 1276 (quoting Parker Excavating, Inc. v. Lafarge W., Inc., 863 F.3d 1213, 1220 (10th Cir. 2017)) (alterations in original).
Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988).
Id.
Janny v. Gamez, 8 F.4th 883, 901 (10th Cir. 2021) (quoting Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998)) (alteration in original).
DISCUSSION
The first issue is whether Plaintiff's claims are time-barred. For those claims that are not time-barred, the next issue is whether Defendants' actions constituted a Fifth Amendment taking, a violation of procedural due process, or a violation of substantive due process.
Because no reasonable jury could find for Plaintiff on his underlying causes of action, the decision does not address the issue of municipal liability.
Further, because Plaintiff does not dispute dismissal of Defendant Caldwell in his official capacity or the dismissal of the intentional interference with business relations claim, the court dismisses Plaintiff's fourth cause of action and Defendant Caldwell without further discussion.
Opp'n 23, n.4. The complaint only identifies Defendant Caldwell in his official capacity; there are no claims against Michael P. Caldwell as an individual.
I. Plaintiff's Causes of Action Stemming from the 2001 Ordinance and the 2009 Order Are Barred by the Four-Year Statute of Limitations.
Because § 1983 "is silent concerning the applicable statute of limitations," federal courts "borrow the analogous state statute for personal injury." "[W]here state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims . . . borrow the general or residual statute for personal injury actions." In Utah, the statute of limitations for general personal injury actions is four years.
Laurino v. Tate, 220 F.3d 1213, 1217 (10th Cir. 2000); see Womble v. Salt Lake City Corp., 84 F. App'x 18, 20 (10th Cir. 2003).
Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989).
Buck v. Utah Lab. Comm'n., 73 F. App'x 345, 348 (10th Cir. 2003) (unpublished); UTAH CODE ANN. § 78B-2-307(3); see Arnold v. Duchesne Cnty., 26 F.3d 982, 987 (10th Cir. 1994) (holding that Utah's two-year statute of limitations for federal civil rights actions under § 1983 is invalid).
"[A] cause of action accrues and the relevant statute of limitations begins to run upon the happening of the last event necessary to complete the cause of action." As is relevant here, "[a] civil rights action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." "Since the injury in a § 1983 case is the violation of a constitutional right, such claims accrue 'when the plaintiff knows or should know that his or her constitutional rights have been violated.' " "This requires the court 'to identify the constitutional violation and locate it in time.' "
Buck, 73 F. App'x at 348 (quoting O'Neal v. Div. of Family Servs., 821 P.2d 1139, 1143 (Utah 1991)).
Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998) (quoting Baker v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993)).
Id. (quoting Lawshe v. Simpson, 16 F.3d 1475, 1478 (7th Cir. 1994)).
Id.
Plaintiff's complaint describes events occurring over the twenty-year span between 2000 and 2020. He does not allege any one event as the constitutional violation; instead, he contends that Defendants' policy of downzoning resulted in a deprivation of his constitutional rights. This "policy," he alleges, is evidenced by the 2001 Ordinance, the 2009 Order, and the 2020 Demolition Order and related proceedings. Because of this ambiguity in the complaint, the court evaluates the three events Plaintiff describes—the passage of the 2001 Ordinance, the 2009 Order, and the 2020 Demolition Order and related proceedings—in order "to identify the constitutional violation and locate it in time."
Compl. ¶¶ 41-42 ("Upon information and belief, Defendants maintain a policy, practice, custom, or procedure through which it downzones multi-unit parcels to single-family dwellings without providing owners proper notice, reasonable ability to contest the zoning change before a neutral party, and the right to appeal. As a result of this policy, practice, custom, or procedure, Defendants have unlawfully deprived Plaintiff of his private property as alleged herein and will be proven at trial."); id. at ¶ 51 ("Upon information and belief, Defendants maintain a policy, practice, custom, or procedure through which it downzones multi-unit parcels to single-family dwellings without providing owners proper notice, reasonable ability to contest the zoning change before a neutral party, and the right to appeal. As a result of this policy, practice, custom, or procedure, Defendants have unlawfully deprived Plaintiff of his private property as alleged herein and will be proven at trial."); id. at ¶¶ 56-58 ("As alleged above and as will be proven at trial, Defendants have acted in an arbitrary and capricious manner with respect to Plaintiff's rights in the Property, including but not limited to their improper downzoning of the Property inconsistent with the historical use of the Property and factual reality on the ground, as well as (upon information and belief) its inconsistent treatment of nearby properties that should have been similarly downzoned, but were not. Upon information and belief, Defendants maintain a policy, practice, custom, or procedure which prefers single family units to the multi-family property maintained by Plaintiff, particularly where the owners are not local residents. As a result of this policy, practice, custom, or procedure, Defendants have unlawfully deprived Plaintiff of his private property as alleged herein and will be proven at trial.").
Smith, 149 F.3d at 1154.
Defendants adopted the 2001 Ordinance in 2001. Plaintiff admits that he received notice of the ordinance by no later than 2009, when Defendants mailed him a notice. This was the around the same time that Plaintiff alleges Defendants began enforcing the ordinance on the Property. Therefore, by 2009, Plaintiff had notice of the 2001 Ordinance—the alleged constitutional violation—and was injured by it. As Plaintiff did not file this complaint until 2020, the four-year statute of limitations had long since run. Any constitutional violations resulting from the 2001 Ordinance are time-barred.
Compl. ¶ 17.
Turning to the 2009 Order, Defendants issued it in 2009. Plaintiff knew about the order—he attempted to appeal it and then complied with it—that same year, which caused him injury in the form of lost rental income. By 2013, then, the applicable four-year statute of limitations had expired. Plaintiff did not commence this action until 2020, seven years later. The statute of limitations bars these claims.
Finally, Defendants mailed the 2020 Notice, held the 2020 Demolition Hearing, and issued the 2020 Demolition Order in the first four months of 2020. It is plausible to read Plaintiff's complaint as asserting these actions as constitutional violations—though the constitutional violation causes of action rest on downzoning, they also purport to incorporate earlier parts of the Complaint addressing the fire and subsequent Demolition Hearing and Order. Plaintiff's claims for relief stemming from the 2020 Demolition Order and its related proceedings are not time-barred, because Plaintiff filed his complaint in March 2020, well within the four-year statute of limitations.
While Plaintiff refers to the 2020 Demolition Order and related proceedings as the "touchstone" of his claims, the 2020 Demolition Order does not somehow revive the time-barred 2009 Order claims. Plaintiff attempts to tie them together as part of the same policy of downzoning, but that fails. The 2020 Notice is the only document in the 2020 Demolition proceedings that even mentions that the Property does not comply with the 2001 Ordinance. Even so—unlike the 2004 Notice, the 2005 Certificate of Noncompliance, or the 2009 Order—the 2020 Notice does not cite the Property's noncompliance with the 2001 Ordinance as the reason for the structure's classification as a "dangerous building;" it instead mentions a 2018 fire in the structure and 38 calls to law enforcement concerning the structure in the past three years. Notice of Dangerous Building & Order to Abate Ex. C, at 3. In any event, a 2020 Hearing and Order regarding an uncontested nuisance simply cannot give new life to injuries of which Plaintiff undisputedly was aware in 2009 and which were extinguished as a matter of law in 2013.
Accordingly, the court next considers whether a reasonable jury could find that the 2020 Demolition Order and its related proceedings were a Fifth Amendment taking without just compensation, a denial of procedural due process, or a violation of substantive due process.
II. Defendants Are Entitled to Summary Judgment on Plaintiff's Fifth Amendment Takings Claim Because Plaintiff Failed to Make a Showing Sufficient to Establish the Existence of the Essential Elements Under Either Lucas or Penn Central.
"The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: '[N]or shall private property be taken for public use, without just compensation.' " "A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it." A person "whose property has been taken by a local government has a claim under § 1983 for a 'deprivation of [a] right[ ] . . . secured by the Constitution' that he may bring upon the taking in federal court." "The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner." But because "[g]overnment regulation often 'curtails some potential for the use or economic exploitation of private property,' " the "party challenging governmental action as an unconstitutional taking bears a substantial burden."
Cedar Point Nursery v. Hassid, — U.S. —, 141 S. Ct. 2063, 2071, 210 L.Ed.2d 369 (2021) (quoting U.S. CONST. amend V).
Knick v. Twp. of Scott, Pennsylvania, — U.S. —, 139 S. Ct. 2162, 2167, 204 L.Ed.2d 558(2019).
Id. at 2172.
Id. at 2170.
E. Enterprises v. Apfel, 524 U.S. 498, 523, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (quoting Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979)).
Id. at 523, 118 S.Ct. 2131 (citing United States v. Sperry Corp., 493 U.S. 52, 60, 110 S.Ct. 387, 107 L.Ed.2d 290 (1989)).
The Supreme Court "has identified two categories of regulatory action that are 'per se' takings: (1) 'where government requires an owner to suffer a permanent physical invasion of her property—however minor,' and (2) 'regulations that completely deprive an owner of 'all economically beneficial use' of her property.' " "Outside of these categories, when a regulation 'impedes the use of property without depriving the owner of all economically beneficial use, a taking may still be found based on a 'complex of factors,' including (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action." "These inquiries are informed by the purpose of the Takings Clause, which is to prevent the government from 'forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.' "
N. Mill St., LLC v. City of Aspen, 6 F.4th 1216, 1224 (10th Cir. 2021) (quoting Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)).
Id. (quoting Murr v. Wisconsin, 582 U.S. 383, 137 S. Ct. 1933, 1942, 198 L.Ed.2d 497 (2017)).
Palazzolo v. Rhode Island, 533 U.S. 606, 617-18, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554(1960)).
Because Plaintiff does not allege a permanent physical invasion of the Property, the court considers only whether Plaintiff has sufficient evidence to show that either (A) the City completely deprived Plaintiff of "all economically beneficial use" of his property under Lucas or (B) the evidence is sufficient to satisfy the Penn Central analysis. A. Plaintiff's Evidence Is Insufficient to Show a Taking under Lucas Because It Does Not Show that Defendants Denied All Economically Beneficial Use of the Land—Plaintiff May Still Rent, Occupy, or Sell the Property after the Duplex Is Demolished.
"[W]ith certain qualifications, . . . a regulation which 'denies all economically beneficial or productive use of land' will require compensation under the Takings Clause." "Where the State seeks to sustain regulation that deprives land of all economically beneficial use, . . . it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." In order to prevail on that "logically antecedent inquiry," the defendant "must identify background principles of nuisance and property law that prohibit the uses [the plaintiff] now intends in the circumstances in which the property is presently found." "Only on this showing can the [defendant] fairly claim that [the government action] is taking nothing."
Palazzolo, 533 U.S. at 617, 121 S.Ct. 2448 (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798(1992)).
Lucas, 505 U.S. at 1027, 112 S.Ct. 2886; id. at 1030, 112 S.Ct. 2886 ("[T]he Takings Clause does not require compensation when an owner is barred from putting land to a use that is proscribed by [ ] 'existing rules or understandings.' ").
Id. at 1031, 112 S.Ct. 2886.
Id. at 1031-32, 112 S.Ct. 2886.
In Lucas v. South Carolina Coastal Council, the Supreme Court found the claimant had suffered a per se taking when a new law permanently banned construction on his recently purchased, undeveloped properties. There, the claimant had purchased two lots, both zoned for single-family residential construction, for $975,000 in 1986. Two years later, but before he had built residences on the lots, the state passed a law banning construction on his properties. The trial court found that "this prohibition 'deprive[d] Lucas of any reasonable economic use of the lots, . . . eliminated the unrestricted right of use, and render[ed] them valueless.' " The case was remanded to determine whether "common-law principles would have prevented" the use the claimant desired.
Id. at 1009, 112 S.Ct. 2886.
Id. at 1008, 112 S.Ct. 2886.
Id.
Id. at 1009, 112 S.Ct. 2886 (citations omitted) (alterations in original).
Id. at 1031, 112 S.Ct. 2886.
Defendants do not identify any background principles of nuisance and property law that prohibit the uses Plaintiff now seeks to continue maintaining. While this might have been dipositive in this case, without evidence or argument presented to it, the court continues to the second inquiry of Lucas: whether the Property has been rendered valueless. The Tenth Circuit recognizes that a homeowner is qualified to testify regarding his property's value and does so as an expert, but Plaintiff refused to provide any valuation for the Property, either with the duplex in its current condition or after the duplex's demolition. Instead, the verified complaint states that Plaintiff is unable to sell the Property without first demolishing the duplex and the cottage, netting him "very little if any payment for the Property." But Plaintiff's net gain from its sale is not the value of the Property; even if it were, "very little" is not, standing alone, a sufficient basis for a reasonable jury to make a finding. Without any evidence of the Property's value, Plaintiff has failed to provide sufficient evidence from which a jury could find a taking under Lucas.
See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 492, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987) ("Courts have consistently held that a State need not provide compensation when it diminishes or destroys the value of property by stopping illegal activity or abating a public nuisance."); but see Lucas, 505 U.S. at 1023-24, 112 S.Ct. 2886 (" 'Harmful or noxious use' analysis was, in other words, simply the progenitor of our more contemporary statements that 'land-use regulation does not effect a taking if it 'substantially advance[s] legitimate state interests.' " (citations omitted)); and Lingle, 544 U.S. at 543, 125 S.Ct. 2074 (overruling "substantially advances" inquiry as part of a takings analysis) ("Instead of addressing a challenged regulation's effect on private property, the 'substantially advances' inquiry probes the regulation's underlying validity. But such an inquiry is logically prior to and distinct from the question whether a regulation effects a taking, for the Takings Clause presupposes that the government has acted in pursuit of a valid public purpose. The Clause expressly requires compensation where government takes private property 'for public use.' It does not bar government from interfering with property rights, but rather requires compensation 'in the event of otherwise proper interference amounting to a taking.' " (citations omitted)).
United States v. Sowards, 370 F.2d 87, 92 (10th Cir. 1966) ("[A]n owner, because of his ownership, is presumed to have special knowledge of the property and may testify as to its value."); Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1281 (10th Cir. 2005).
United States v. 10,031.98 Acres of Land, More or Less, Situated in Las Animas Cnty., Colo., 850 F.2d 634, 636 (10th Cir. 1988) (An owner "may offer such testimony without further qualification. Furthermore, in testifying as to the value of his property the owner is entitled to the privileges of a testifying expert.").
Dep. Douglas Bruce 69:2-73:14.
Compl. ¶ 39.
See Schmidt v. Utah State Tax Comm'n, 1999 UT 48, ¶ 9, 980 P.2d 690, 692 (discussing methods for calculating a property's value).
Additionally, the relevant paragraph in the Complaint is focused on downzoning. It is not clear to what degree it applies to loss from the 2020 Demolition Order as opposed to the loss occasioned by earlier orders and actions which are time barred. See Compl. ¶ 39.
Further, even if Plaintiff had provided evidence of the Property's value, Plaintiff failed to show that there is a genuine issue of material fact that Defendants' actions "denied all economically beneficial or productive use of land" as a Lucas categorical takings claim requires. The ordered demolition does not limit how Plaintiff may use the Property. After the demolition, the Property will still contain two residences: the cottage and the duplex at 3172 Grant Avenue. Plaintiff will still have the ability to rent, occupy, or sell the Property. Therefore, Plaintiff has failed to show that the Property will not be economically beneficial or productive once the 3166 Grant Avenue structure is demolished. For these reasons, Plaintiff has not carried his burden under Lucas. B. Plaintiff's Evidence Is Insufficient to Show a Taking under Penn Central Because Plaintiff Provides No Evidence of Economic Impact or of an Investment-Back Expectation to Maintain a Nuisance, and Regulating a Nuisance is Quintessential Government Action.
Under Penn Central, "when a regulation 'impedes the use of property without depriving the owner of all economically beneficial use, a taking may still be found based on a 'complex of factors,' including (1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action." The court discusses each factor in turn.
N. Mill St., LLC, 6 F.4th at 1224 (quoting Murr, 137 S. Ct. at 1942).
1. Plaintiff Failed to Offer Evidence of Any Economic Impact.
The "test for regulatory taking requires [the court] to compare the value that has been taken from the property with the value that remains in the property." "The value of property taken by a governmental body is to be ascertained as of the date of taking."
Keystone Bituminous Coal Ass'n, 480 U.S. at 497, 107 S.Ct. 1232.
United States v. Clarke, 445 U.S. 253, 258, 100 S.Ct. 1127, 63 L.Ed.2d 373 (1980) (quoting United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336 (1943)).
The verified complaint can be read to state that Defendants' 2020 Demolition Order prevents him from netting much income ("very little if any") from any sale of the Property because, in order to sell it, he would have to cover the cost of demolishing the 3166 Grant Avenue duplex. This conclusory statement is insufficient to survive summary judgment; Plaintiff has provided no evidence of the value that remains in the Property or of the value that has been taken by the demolition order.
Compl. ¶ 39.
The $2,100 loss in monthly income was not caused by the 2020 Demolition Order. By 2020, it is undisputed that the units at 3166 Grant Avenue had been vacant for eleven years.
2. Plaintiff Had No Distinct, Investment-Backed Expectation in Maintaining a Nuisance.
"[T]he reasonable investment-backed expectations factor of the Penn Central test properly limits recovery to property owners who can demonstrate that their investment was made in reliance upon the non-existence of the challenged regulatory regime." This factor focuses on the regulatory regime at the time of the plaintiff's initial investment.
Good v. United States, 39 Fed. Cl. 81, 109 (1997), aff'd, 189 F.3d 1355 (Fed. Cir. 1999).
Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1345 (Fed. Cir. 2018).
Plaintiff purchased the Property in 1983. Even in the 1980s, maintaining a "building in such a manner and state of condition that the thing constituted an unlawful nuisance and menace to . . . health and safety" was prohibited. Therefore, the 2020 Demolition Order did not interfere with Plaintiff's distinct investment-backed expectations.
Compl. ¶ 16.
See Cox v. Cedar City Corp., 664 P.2d 1174, 1175 (Utah 1983); Brough v. Ute Stampede Ass'n, 105 Utah 446, 142 P.2d 670, 672 (1943); Dahl v. Utah Oil Ref. Co., 71 Utah 1, 262 P. 269, 272 (1927) (defining a public nuisance to be "[d]oing any act, or omitting to perform any duty, which act or omission . . . [a]nnoys, injures, or endangers the comfort, repose, health, or safety of three or more persons" (citing to Comp. Laws Utah 1917)).
3. The Character of Government Action Is Quintessential.
Regulating a nuisance is quintessential government action. Indeed, taking challenges to government actions that affect existing uses of real property have frequently been denied when the government seeks to regulate a nuisance. For example, the Supreme Court has refused to require compensation when a state statute ordered property owners to cut down trees that produced a disease fatal to apple trees cultivated nearby, a law prohibited a property owner from continuing his operation of a brickyard due to health and comfort concerns of the neighbors, and a city ordinance prohibited a property owner from continuing a sand and gravel mining business.
See Keystone Bituminous Coal Ass'n, 480 U.S. at 492, 107 S.Ct. 1232.
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 145, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (Rehnquist, J., dissenting) ("Thus, there is no 'taking' where a city prohibits the operation of a brickyard within a residential area, . . . or forbids excavation for sand and gravel below the water line.").
Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928).
Hadacheck v. Sebastian, 239 U.S. 394, 411, 36 S.Ct. 143, 60 L.Ed. 348 (1915).
Goldblatt v. Town of Hempstead, N. Y., 369 U.S. 590, 590, 82 S.Ct. 987, 8 L.Ed.2d 130(1962).
Here, Plaintiff offers no evidence that the duplex at 3166 Grant Avenue is not a nuisance. Instead, the unrebutted evidence shows that the building is dangerous because it is structurally deficient and left unsecured.
Notice of Dangerous Building & Order to Abate Ex. C.
Therefore, applying the Penn Central test, this is a straightforward analysis: there is no evidence of the economic impact on Plaintiff from compliance with the 2020 Demolition Order, Plaintiff never had a distinct investment-backed expectation in maintaining a dangerous building, and regulating a nuisance is a quintessential government action. The 2020 Demolition Order was not a taking under Penn Central.
In conclusion, no reasonable jury could find a Fifth Amendment taking. Therefore, Defendants are entitled to summary judgment on this claim.
III. Defendants Are Entitled to Summary Judgment on Plaintiff's Procedural Due Process Claim Because Plaintiff Failed to Make a Showing Sufficient to Establish that He Was Denied Notice or a Hearing.
"The Due Process Clause of the Fourteenth Amendment . . . prohibits a State from 'depriv[ing] any person of life, liberty, or property, without due process of law.' " "Once a protected property or liberty interest is recognized, the Constitution may require certain procedures, such as a hearing, before depriving a person of that interest." Therefore, in considering a procedural due process claim, the court asks two questions: "(1) Did the plaintiff possess a protected property or liberty interest to which due process protections apply? And if so, (2) was the plaintiff afforded an appropriate level of process?"
Al-Turki v. Tomsic, 926 F.3d 610, 614 (10th Cir. 2019) (quoting U.S. CONST. amend. XIV, § 1).
Id. (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).
Martin Marietta Materials, Inc. v. Kansas Dep't of Transp., 810 F.3d 1161, 1172 (10th Cir. 2016).
It is undisputed that Plaintiff has a property interest in the Property. The U.S. Supreme Court "consistently has held that some form of hearing is required before an individual is finally deprived of a property interest." "Unless exigent circumstances are present, the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property." When a government "adjudicate[s] or make[s] binding determinations which directly affect the legal rights of individuals, it is imperative that [it] use the procedures which have traditionally been associated with the judicial process." "An impartial tribunal is an essential element of a due process hearing," as is "[t]he opportunity to present reasons, either in person or in writing, why proposed action should not be taken."
See United States v. James Daniel Good Real Prop., 510 U.S. 43, 49, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993).
Mathews, 424 U.S. at 333, 96 S.Ct. 893.
United States v. James Daniel Good Real Prop., 510 U.S. 43, 62, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993); Energy W. Mining Co. v. Oliver, 555 F.3d 1211, 1219 (10th Cir. 2009) ("The government must provide a litigant with 'a fair opportunity to mount a meaningful defense to the proposed deprivation of its property.' " (quoting Consolidation Coal v. Borda, 171 F.3d 175, 183 (4th Cir. 1999))).
Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).
Miller v. City of Mission, Kan., 705 F.2d 368, 372 (10th Cir. 1983) (citing Staton v. Mayes, 552 F.2d 908, 913 (10th Cir. 1977)).
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ("For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented.").
The record evidence shows Defendant sent Plaintiff a Notice of Dangerous Building and Order to Abate in January 2020. When Plaintiff did not abate or demolish the structure, Defendants mailed Plaintiff an "Order to Show Cause to appear before the Ogden City Mayor . . . to explain why he had not complied." The Order to Show Cause notified Plaintiff of his hearing date. Plaintiff appeared at the hearing remotely and was represented in-person through his attorney. The mayor took evidence and heard from Plaintiff and his attorney. The mayor then rendered his decision that the duplex at 3166 Grant Avenue was a dangerous building and public nuisance. He concluded that the demolition process should proceed. There is neither allegation nor evidence that Plaintiff was denied notice or an opportunity to be heard, and the record shows Plaintiff had both. However, in his opposition, Plaintiff argues that the mayor's role as arbiter violated procedural due process.
Notice of Dangerous Building & Order to Abate Ex. C.
Compl. ¶ 34.
Id.
2020 Hearing Ex. F, at 1.
Id. at 1-4.
Id. at 5.
Id.
Opp'n 20-21.
The Supreme Court has found that it is not unconstitutional for a mayor to perform certain judicial functions. A mayor serving in a judicial capacity violates due process when the circumstances "offer a possible temptation . . . to forget the burden of proof required to convict the defendant, or [ ] might lead him not to hold the balance nice, clear, and true between the state and the accused." However, where a mayor "has a direct, personal, substantial pecuniary interest in reaching a conclusion against" the accused, the individual's due process right is violated.
Ward v. Vill. of Monroeville, Ohio, 409 U.S. 57, 60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) (quoting Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 71 L.Ed. 749 (1927)); see also DePiero v. City of Macedonia, 180 F.3d 770, 777 (6th Cir. 1999) (upholding state statute authorizing a "mayor's court" because "the Supreme Court has found no fatal defect in the overarching system that permits a mayor simultaneously to exercise some combination of executive and judicial functions"); Bailey v. City of Broadview Heights, 674 F.3d 499, 505 (6th Cir. 2012) (Cases "have made it clear that a mayor may perform some judicial functions without violating due-process rights, as long as he does not perform them in a case that would offer a 'possible temptation . . . to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused.' ").
Ward, 409 U.S. at 60, 93 S.Ct. 80 (quoting Tumey, 273 U.S. at 532, 47 S.Ct. 437).
Tumey, 273 U.S. at 523, 47 S.Ct. 437; see Ward, 409 U.S. at 60, 93 S.Ct. 80 (finding " 'possible temptation' may also exist when the mayor's executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor's court").
Here, Plaintiff fails to offer any evidence that the City's mayor faced any circumstances that would lead him not to be impartial and fair. There are no allegations, much less evidence, that the mayor individually had a "direct, personal, substantial pecuniary interest" at stake. Instead, it seems to be Plaintiff's contention that the mere fact that the mayor presided over the hearing violated due process. But that is insufficient as a matter of law. Without more, Plaintiff has failed to offer sufficient evidence of a violation of procedural due process to survive the summary judgment stage.
Opp'n 20-21.
See Ward, 409 U.S. at 60, 93 S.Ct. 80 (quoting Tumey, 273 U.S. at 534, 47 S.Ct. 437).
See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 884, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548).
IV. Defendants Are Entitled to Summary Judgment on Plaintiff's Substantive Due Process Claim Because a Reasonable Jury Could Not Find that Defendants' Behavior Was Conscience-Shocking.
The Fourteenth Amendment's provision that " '[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law,' 'guarantees more than fair process,' and covers a substantive sphere as well, 'barring certain government actions regardless of the fairness of the procedures used to implement them.' " This substantive due process clause "was intended to prevent government 'from abusing [its] power, or employing it as an instrument of oppression.' " It "is violated by executive action only when [the executive action] 'can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.' " "The plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." "[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level."
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting U.S. CONST. amend. XIV § 1; Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)) (cleaned up).
Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)) (alterations in original).
Lewis, 523 U.S. at 847, 118 S.Ct. 1708 (quoting Collins, 503 U.S. at 128, 112 S.Ct. 1061); see id. at 846, 118 S.Ct. 1708 (The Court has "repeatedly emphasized that only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense.' " quoting Collins, 503 U.S. at 129, 112 S.Ct. 1061); Klen v. City of Loveland, Colo., 661 F.3d 498, 512-13 (10th Cir. 2011) ("An arbitrary deprivation of a property right may violate the substantive component of the Due Process Clause if the arbitrariness is extreme.").
Klen, 661 F.3d at 512-13 ("A high level of outrageousness is required."); see Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995) (This standard is difficult to meet: "to satisfy the 'shock the conscience' standard, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power. That is, the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking."); Ward v. Anderson, 494 F.3d 929, 937 (10th Cir. 2007).
Lewis, 523 U.S. at 849, 118 S.Ct. 1708 (emphasis added).
In Klen v. City of Loveland, the Tenth Circuit found that the behavior of the city in a heated permit dispute was not "outrageous." There, the plaintiffs attempted to obtain a building permit from the city. The permit was delayed, and the plaintiffs expressed increasing frustration with the delay to the city. The permit was then further delayed, and the city issued nearly sixty municipal citations to plaintiffs. The city then sent an inspector to the site without a warrant, consent, or notice. The plaintiffs alleged the city's delay, citations, and inspection were retaliatory, and that this "continuous campaign of harassment, deceit, and delay" was a violation of substantive due process. However, the court disagreed, finding that the evidence showed a "kind of disagreement that is frequent in planning disputes" rather than conduct rising to the "level of conscience-shocking behavior."
Id. at 501.
Id.
Id.
Id. at 507.
Id.
Id. at 511.
Id. at 513.
Ogden City Code authorizes the City to abate dangerous buildings that "endanger the life, limb, health, morals, property, safety or welfare of the general public or their occupants." Record evidence shows that the Ogden City Building Official reviewed the condition and history of the structure at 3166 Grant Avenue, observing that the structure had been vacant for years, had experienced a fire in 2018, and was the location of 38 calls to the police over the last three years. He concluded that the property was dangerous. After hearing from the building official and from Plaintiff, the mayor also concluded that the building was dangerous and should be demolished. No reasonable jury could find that this constitutes "outrageous" conduct.
OGDEN CITY CODE § 16-8A-2.
Notice of Dangerous Building & Order to Abate Ex. C, at 3.
Id. at 2.
2020 Hearing Ex. F, at 5.
Finding that the Defendants are entitled to summary judgment on all three remaining causes of action, the court need not address Plaintiff's request for injunctive or declaratory relief.
ORDER
THEREFORE, IT IS HEREBY ORDERED that Defendants Ogden City Corporation and Michael Caldwell's motion for summary judgment is GRANTED as to all claims against Defendants. It is further ORDERED that all claims being resolved, the clerk of court is directed to enter judgment in favor of Defendants on all claims and close this case.