The Rohrbacs began composting horse manure on their property for the purpose of resale. An Elbert County Code Compliance Office questioned the Rohrbacs on whether their property was zoned for compose activities. The Rohrbacs sought a temporary use application but when became clear that the Board was not going to approve the application but require a re-zoning, the Rohrbacs withdrew the application but continued to compost. The Board sent a notice to the Rohrbacs indicting that they needed to cease operations and when they did not comply, the Board filed an enforcement action in county court to enjoin the operation. The Rohrbacs contended that the Board was “illegally enforcing its zoning regulations, and seeking injunctive relief as well as damages for constitutional violations under 42 U.S.C. § 1983 based, in part, upon the failure of the BOCC to adopt a zoning map.” The trial court ruled in favor of the Board and the Colorado Court of Appeals reversed on the grounds that the Board had failed to produce a zoning map. The Rohrbacs then filed a federal lawsuit seeking damage, for violation of due process, against the Board for enforcement of unconstitutional and non-existent zoning regulations. After the case was consolidated, the Rohrbacs filed a motion for summary judgment. The Board claimed that the Rohrbacs § 1983 claim was time barred by the two-year statute of limitations.
The Court first looked to establish the accrual date, which is when the statute of limitations begins to run. The accrual date is “when the Rohrbacs knew or should have known that their constitutional rights were violated.” The Board contended that the accrual date was when it issued the Rohrbacs its notice of violation or at least when the Board took enforcement action. Both of which place the claim outside the statute of limitations. The Rohrbacs contended, “Based on their stipulation to suspend ruling on their counterclaims in the state court, that their § 1983 claim raised here did not accrue until the Colorado Court of Appeals reversed the trial court.” The Court disagreed that the stipulation adjusted the date that the claim accrued. Instead it held that “this case, however, related to a private tolling agreement in which parties agreed to suspend the running of a statute of limitations; it is not an agreement to re-set or change the accrual date on a statute of limitations.”
The Rohrbacs then asserted that the statute of limitations was tolled upon the timely filing of the state court lawsuit. “While the determination of an accrual date of the §1983 claim is a question of federal law, the length of a statute of limitations period and related questions of tolling and application are governed by state law, unless the tolling rules are inconsistent with federal law of with the policy which federal law seeks to implement.” In Colorado, the statutory tolling provision states:
“If an action is commenced within the period allowed by this article and is terminated because of lack of jurisdiction or improper venue, the plaintiff may commence a new action upon the same cause o action within ninety days after the termination of the original action. This section shall be applicable to all actions which are first commenced in a federal court as well as those first commenced in the courts of Colorado or of any other state.”
Here, the claim was not terminated due to lack of jurisdiction or improper venue. The Court also held that although there is a provision for equitable tolling of a statute of limitations, it did not apply here. Equitable tolling can only take place in situations where “the defendant has wrongfully impeded the plaintiff’s ability to assert the claim, or in which truly extraordinary circumstances presented the plaintiff from filing his or her claim despite diligent efforts.”
Onyx Properties v. Board of County Commissioners of Elbert County, 2012 WL 2126840 (D. Colo 6/12/2012)
The opinion can be accessed at: http://scholar.google.com/scholar_case?case=8413417832629423971&q=Onyx+Properties+v.+Board+of+County+Commissioners+of+Elbert+County+june+12,+2012&hl=en&as_sdt=2,33&as_vis=1