ORDER GRANTING MOTION TO DISMISS

CHRISTINE M. ARGUELLO, District Judge.

In this case, thirty-two plaintiffs, all land owners in Elbert County, allege that Defendant Board of County Commissioners of Elbert County violated their due process rights when it promulgated a procedurally defective zoning regulation that required them to incur the expense of re-zoning their properties. To prevail on their principal claim, Plaintiffs must identify a property right that has been violated and explain why the state provided insufficient process to protect it. For the reasons that follow, Plaintiffs cannot fulfill either prong of this test and the Court therefore grants Defendant's motion to dismiss.

I. BACKGROUND

The municipal zoning regulation at issue here is somewhat complicated, but the underlying legal principles that govern this case are not. According to Plaintiffs—all of whom rezoned their properties in Elbert County to this classification between 1997 to 2009—Elbert County officials told them that, if they wanted to subdivide their property into smaller parcels for development, the County's zoning regulations required them to first rezone their property to the A-1 classification. Plaintiffs assert Defendant violated their due process rights when it required them to incur this expense of re-zoning their properties because the actual zoning regulations did not contain the requirement for A-1 conversion. Rather, Plaintiffs allege that in 1997 a county employee arbitrarily (and without notice) added an A-1 zone into the zoning regulations. Thus, Plaintiffs contend that, because the A-1 zone requirement was not part of the official zoning regulations, they should not have been required to expend money to comply with it.

Each Plaintiff wanted to subdivide their property into smaller parcels of land but was told by County officials that they could not do so unless they first rezoned to A-1. (Doc. # 23, Compl., ¶ 36.) County officials represented that, if the property was not rezoned, the County would not issue building permits for the subdivided property. (Id.) In light of this directive, "[e]ach Plaintiff complied with the [County officials'] demands and requirements for each respective application for rezoning, and paid filing fees, impact fees, and other fees to the [Board] for the rezoning of their properties." (Id., ¶ 21). According to Plaintiffs, incurring these costs as a prerequisite to being able to subdivide their property violated their due process rights. (Id., ¶ 48.)

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. "The pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting and citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citations omitted; alterations incorporated)).

Further, "only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not shown—that the pleader is entitled to relief." Id. at 679 (internal citations and quotation marks omitted; alterations incorporated). Thus, the burden is on the Plaintiffs to "nudge [their] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570.

The purpose of this pleading requirement is two-fold: "to ensure that a defendant is placed on notice of his or her alleged misconduct sufficient to prepare an appropriate defense, and to avoid ginning up the costly machinery associated with our civil discovery regime on the basis of a largely groundless claim." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (internal quotation marks and citations omitted).

III. DISCUSSION

The Fourteenth Amendment prohibits the government from depriving an individual of property "without due process of law." U.S. Const. amend. XIV, § 1. Under the Due Process Clause's requirements, "procedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason." Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000).

In their complaint, Plaintiffs fail to specify whether they are pursuing a substantive or a procedural due process claim but, in their response to Defendant's motion to dismiss, Plaintiffs focus their claim on procedural due process. In evaluating such a claim, this Court must undertake a two-step inquiry. First, this Court asks whether Defendant's actions deprived Plaintiffs of a constitutionally protected property interest. If Plaintiffs can satisfy this requirement, this Court must then consider whether Plaintiffs were afforded the appropriate level of process. See, e.g., Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994).

As to the first prong of this test, property rights recognized under the Fourteenth Amendment "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Further, "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. Finally, "even the temporary or partial impairments to property rights that attachments, liens, and similar encumbrances entail are sufficient to merit due process protection." Connecticut v. Doehr, 501 U.S. 1, 12 (1991). This is true because such an encumbrance "ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause." Id. at 11.

As to the second prong, regarding the appropriate level of process, this Court's inquiry is limited. The Court does not sit as "zoning board of appeals when presented with claims which, although couched in constitutional language, at bottom amount only to the run of the mill dispute between a developer and a town planning agency." Gunkel v. City of Emporia, Kan., 835 F.2d 1302, 1305 (10th Cir. 1987) (internal quotation marks omitted; alteration incorporated). Rather, the "fundamental requirements of due process are notice and an opportunity to present reasons why `a proposed action should not be taken.'" Santana v. City of Tulsa, 359 F.3d 1241, 1244 (10th Cir. 2004) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)).1

Plaintiffs have trouble satisfying either prong of this test. First, it is unclear to this Court how the property interest Plaintiffs are asserting here is constitutionally protected. The Plaintiffs have already paid the costs of undergoing the rezoning and appear to complain about how bureaucratic malfeasance made this more complicated. But they cite no analogous cases in which this minor headache and extra expense is transformed into a constitutional tort.

In response, Plaintiffs resort to an abstraction game, suggesting any enjoyment and use of their land is the property interest and whatever government action infringes on that right constitutes the due process violation. As support for this position, Plaintiffs principally cite Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928), and Oklahoma City v. Dolese, 48 F.2d 734 (10th Cir. 1931. But as Defendant rightly notes, both Roberge and Dolese involved a serious encumbrance on an owner's private land use that was much greater than the need to pay extra fees or fill-out extra forms. See Roberge, 278 U.S. at 122 (considering a claim by a property owner was denied a permit to build a home for the aged and poor on land he owned); Dolese, 48 F.2d at 738 (city ordinance declaring a plaintiff company's plant a public nuisance that had to be abated within 120 days constituted a taking of the company's property right without due process of law).

The Court is unwilling to accept that Plaintiffs' reliance on these century-old authorities—which are similar to this case only at a high level of generality—is sufficient for purposes of identifying a property interest under the first prong of the test outlined above.

Second, even assuming that Plaintiffs can lay claim to such a generalized property interest, it is unclear how state mechanisms—as opposed to a federal lawsuit—do not provide an adequate remedy to addressing the allegedly improper actions taken by Defendant.2 Indeed, when pressed by Elbert County officials, it seems that Plaintiffs opted not to contest the validity of the zoning regulation and paid for the rezoning. But Plaintiffs leave this Court in the dark as to whether there was any sort of process for contesting the zoning regulation prior to compliance—and if so, why this process was insufficient.3 Further, Plaintiffs' reference to additional litigation, in which similarly situated landowners are successfully pursuing state law claims contesting the validity of the zoning regulations, suggests that Colorado's state judicial process provides an adequate remedy under state law to address any defects in the zoning regulation. See (Doc. # 26-1); see also Bd. of Cnty. Comm'rs v. Rohrbach, 226 P.3d 1184 (Colo. App. 2009).4

In light of Plaintiffs' failure to sufficiently address the issues outlined above in the complaint and in their briefing, this Court grants Defendant's motion to dismiss. If Plaintiffs seek to amend their complaint, they must: (1) provide adequate authority that establishes with greater specificity why the type of property interest they identify is a cognizable one accorded the protections of procedural due process; and (2) explain why the process available under state law is insufficient to litigate the validity of the zoning regulations at issue here.5

IV. CONCLUSION

For the foregoing reasons, it is ORDERED that Defendant's Motion to Dismiss (Doc. # 10) is GRANTED and Plaintiffs' claims are DISMISSED WITHOUT PREJUDICE.

FURTHER ORDERED that, should Plaintiffs wish to file an Amended Complaint, they must do so by no later than October 17, 2014.