Posted by: Patricia Salkin | March 17, 2011

Fed. Dist Court Allows Due Process Claims and Alleged Void for Vagueness Argument to Proceed

Plaintiff landowners wanted to divide their properties into two parcels for development and ultimately for sale.   The County required the properties to be rezoned.  As such, the properties were rezoned so that both had the “A-1” designation.  Plaintiffs brought suit on behalf of a class encompassing “all persons who have, on or after April 28, 1997, submitted application for an A1 re-zone or had the A-1 zoning regulations enforced against them.”  Plaintiffs alleged violations of their Fifth and Fourteenth Amendment rights as well individual claims for loss of property rights when the County enforced the allegedly illegal zoning regulations.  The County filed a motion to dismiss alleging the claim was not ripe for judicial review and for failing to state a claim upon which relief could be granted.

With respect to the ripeness issue, the Court said the extent that the plaintiffs’ claims were for a regulatory taking, they were not yet ripe absent final agency determination.  However, the Court found that the complaint raises due process violations, and noted that the Tenth Circuit, has previously acknowledged that “due process rights may arise which are beyond the more particularized claim asserted pursuant to the Just Compensation Clause.”  In this instance, the Court agreed that the plaintiffs’ claims were ripe because their claims asserted that defendant’s had illegally enacted and enforced zoning regulations which caused costly and unnecessary rezoning to plaintiff and were not focused on the regulatory taking.

The Court found that plaintiffs failed to state a claim for violation of substantive due process because plaintiffs’ property interest, “the right to use their property without the restriction of an A-1 zone district” did not warrant such protection.  However, the Court agreed with plaintiffs that the complain alleged a plausible facial claim that the zoning regulations at issue require the missing zoning map, and that there is a reasonable inference that the regulations are impermissibly void for vagueness absent the zoning map.

Onyx Properties LLC v. Board of County Com’rs of Elbert County, 2011 WL 588097 (D.Colo. . 2/9/2011)

The opinion can be accessed at:

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