Posted by: Patricia Salkin | July 31, 2015

Tenth Circuit Court of Appeals Affirms Dismissal of Due Process and Equal Protection Claims as Unripe

Mr. Warden sought to develop a mobile home park in Grove, Oklahoma. He was required to comply with a City ordinance requiring him to poll all of the property owners within three-hundred feet of the proposed development and obtain project approval from at least 75 percent of them. Shortly before Mr. Warden began polling, the City passed an ordinance that potentially eliminated this requirement. The City said it told Mr. Warden that it was not clear whether the polling requirement still existed. When Mr. Warden failed to poll all of the neighboring property owners, he ceased efforts to develop the property and instead sued the City, which had not even considered whether to approve the project. Mr. Warden was also required to file a site plan application with the Planning and Zoning Commission, which must be approved to seek a permit to commence construction. Despite this, Mr. Warden filed neither an application, nor a request for a variance. The City moved for summary judgment and the district court dismissed Mr. Warden’s federal due process and equal protection claims challenging the polling requirement, finding them unripe because he “has not received a final decision regarding his proposed mobile home development.”

Mr. Warden argued that he would have been denied a permit because of the polling requirement. However, the court disagreed because there might have been grounds other than non-compliance with the polling requirement to deny a permit; the Board might have granted a variance; the polling requirement may have been determined to have been repealed; the City had not denied Mr. Warden a permit; and Mr. Warden had presented no evidence that he would be denied a permit. Due to these contingencies, the court concluded that the claims were properly dismissed for lack of Article III ripeness.

Warden v City of Grove, 604 Fed. Appx. 755 (10th Cir. CA 5/15/2015)

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