CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on the December 19, 2019 Recommendation of United States Magistrate Judge ("the Recommendation") (Doc. # 55), wherein Magistrate Judge Scott T. Varholak recommends that this Court grant in part and deny in part Defendants' Motion to Dismiss Amended Complaint ("the Motion") (Doc. # 30). Defendant Chaffee County Board of County Commissioners ("BOCC") timely objected only as to Magistrate Judge Varholak's recommendation that Defendants' Motion be denied as to Plaintiff's due process claim against Defendant BOCC. (Doc. # 56 at 1.) For the reasons described herein, Defendant BOCC's objection is overruled. The Court affirms and adopts the Recommendation.
The Magistrate Judge's Recommendation provides a recitation of the factual and procedural background of this dispute and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). The Court therefore recounts only the facts necessary to address Defendant BOCC's objection.
On May 6, 2014, Allison Brown ("Plaintiff") purchased the property located at 11600 Antelope Road ("11600 Property") in Chaffee County, Colorado, in order to form a foxhunting club. (Doc. # 18 at ¶ 12.) From 2014 to 2016, Plaintiff operated a foxhunting club at the 11600 Property. (Id. at ¶ 11.) Plaintiff conducted hunts on public lands and private lands with the agreement of their owners from November 1, 2014, through March 31, 2015, and September 1, 2015, through March 31, 2016. (Id. at ¶ 13.) On August 8, 2016, Plaintiff submitted a residential permit application to the Chaffee County Building Department to construct an "accessory residential dwelling/guest house" at the 11600 Property. (Id. at ¶ 17.)
Part of the permit application process required a review by the Chaffee County Planning Department of the purpose and intended use of the requested improvements as well as the current and intended land use. (Id.) During this process, Plaintiff and Defendant Jon Roorda—in his capacity as the Planning Manager for Chaffee County Planning and Zoning—met and discussed Plaintiff's requested development, her current and intended land use, Chaffee County's ("the County") interpretation of its land use ordinances, and permitted uses of land under the Chaffee County Land Use Code ("CCLUC"). (Id. at ¶¶ 5, 17.) In response to Mr. Roorda's request for a description of current and planned use of the 11600 Property, Plaintiff submitted a letter to the County that identified the foxhounds and horses maintained on the property, Plaintiff's foxhunting activities and club, her registration with the Masters of Foxhounds Association, her future house, and an additional single-family dwelling intended to be rented to a caretaker for the ranch and foxhounds. (Id. at ¶ 18.)
On October 12, 2016, Mr. Roorda suggested, in writing, that the aggregate use of Plaintiff's property would qualify as an `outfitting facility' under the CCLUC, which would require a limited impact review and approval before a building permit could be issued. (Id. at ¶ 19.) Plaintiff revised her plans to remove the guest quarters to avoid the `outfitting facility' designation and confirmed this in writing to Mr. Roorda. (Id.) After written confirmation of this revision from Plaintiff, and without requiring a limited impact review, Mr. Roorda issued Plaintiff a building permit, "which permitted [Plaintiff's] planned development and determined [her] land use was compliant with the county's zoning ordinances," and a Certificate of Zoning Compliance, which "again identif[ied] [Plaintiff's] land use as compliant with the county's zoning ordinances." (Id. at ¶¶ 20-21.) In reliance on the County's representations, Plaintiff commenced construction at the 11600 Property. (Id. at ¶ 22.)
After approximately five months of construction, on March 28, 2017, Mr. Roorda submitted a letter to Plaintiff that substantially changed the County's position, identified Plaintiff's use of the property as unlawful, and required Plaintiff to submit applications for a limited impact review to obtain permission from the County to continue using the 11600 Property "as previously permitted." (Id. at ¶ 23.) On May 8, 2017, Mr. Roorda submitted a second letter to Plaintiff demanding that Plaintiff submit a limited impact review to avoid the matter being referred to the County Attorney. (Id. at ¶ 24.) The Board of Adjustment for Appeal denied Plaintiff's appeal of the conclusion that her development qualified as an `outfitting facility' and a `kennel,'
On December 19, 2017, Plaintiff sold her home in anticipation of moving onto the 11600 Property. (Id. at ¶ 38.) However, Plaintiff was repeatedly denied a certificate of occupancy for the 11600 Property on the basis of her purported land use violations.
On March 28, 2019, Plaintiff initiated the instant action in the Chaffee County District Court against Chaffee County, the Chaffee County Board of Review, the BOCC, and Mr. Roorda and Dan Swallow in their official capacities. (Doc. # 4.) On May 3, 2019, Defendants removed the matter to this Court. (Doc. # 1.) Plaintiff's Amended Complaint alleges that Defendants violated Plaintiff's rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment. See generally (Doc. # 18).
Defendants filed the instant Motion seeking to dismiss the Amended Complaint in its entirety on July 8, 2019 (Doc. # 30), which this Court referred to Magistrate Judge Varholak (Doc. # 31). Magistrate Judge Varholak concluded that Defendants' Motion should be granted as to all claims except Plaintiff's due process claim against Defendant BOCC. Defendant BOCC filed the instant Objection to One Part of Magistrate Judge's Recommendation ("the Objection") on January 6, 2020 (Doc. # 56), to which Plaintiff responded on January 21, 2020 (Doc. # 58). Plaintiff did not object to the Recommendation.
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge "determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to." An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
In the absence of a timely objection, however, "the district court may review a magistrate [judge's] report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.")).
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
"A court reviewing the sufficiency of a complaint presumes all of [the] plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is
The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
"Property rights we recognize 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.'" Jordan-Arapahoe, LLP v. Bd. of Cty. Comm'rs of Cty. of Arapahoe, Colo., 633 F.3d 1022, 1025 (10th Cir. 2011) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). The "identification of those benefits and the `legitimate claim of entitlement' to them is determined not by the Constitution, but largely by state law." Eason v. Bd. of Cnty. Comm'rs, 70 P.3d 600, 604-05 (Colo. App. 2003) (citing Hillside Cmty. Church v. Olson, 58 P.3d 1021, 1025 (Colo. 2002)). To state a claim for the deprivation of property without due process, a plaintiff must allege facts plausibly suggesting (1) the defendant deprived it of a protected property interest, and (2) such deprivation was arbitrary. Jordan-Arapahoe, 633 F.3d at 1025 (citing Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000)).
Under Colorado law, a property owner does not obtain a vested property right in a particular land use absent (1) the approval of a site-specific development plan, or (2) the landowner's substantial and detrimental reliance on representations and affirmative actions by the local government. Jordan-Arapahoe, 633 F.3d at 1024. Most commonly, in Colorado, "property rights vest in a particular land use after a building permit has been issued and the landowner acts in reliance on it." Id. at 1029. "A city permit can provide the foundation for a vested right, and thus be constitutionally protected from impairment by subsequent legislation, if the permit holder takes steps in reliance upon the permit." P-W Investments, Inc. v. City of Westminster, 655 P.2d 1365, 1371 (Colo. 1982). The general rule "provides that a common law right to develop does not vest until the party has taken substantial steps in reliance on a building permit." Villa at Greeley, Inc. v. Hopper, 917 P.2d 350, 356 (Colo. App. 1996); see also Cline v. City of Boulder, 450 P.2d 335, 338 (Colo. 1969) (reiterating the rule that a building permit by itself, without reliance, is not enough to create a vested property right). Thus, "generally speaking, no preliminary proceedings to the obtaining of a [building] permit give rise to any vested right to pursue a use in a zoned district." City of Aspen v. Marshall, 912 P.2d 56, 60-61 (Colo. 1996).
Magistrate Judge Varholak recommended that Plaintiff's claim for deprivation of property without due process not be dismissed. Defendant BOCC's only objection to the Recommendation is to Magistrate Judge Varholak's conclusion that Plaintiff has sufficiently alleged that she had a protected property interest in her intended use of the 11600 Property.
Under Colorado law, "property rights vest in a particular land use after a building permit has been issued and the landowner acts in reliance on it." Jordan-Arapahoe, 633 F.3d at 1029; see also P-W Investments, 655 P.2d at 1371 ("A city permit can provide the foundation for a vested right, and thus be constitutionally protected from impairment by subsequent legislation, if the permit holder takes steps in reliance upon the permit.") Plaintiff alleges that the County represented that her current and intended land use was permissible under the CCLUC, that the County issued her a building permit for the property that permitted said land use, and that she detrimentally relied on the County's issuance of the building permit. Presuming all of Plaintiff's factual allegations are true and construing them in the light most favorable to her, Hall, 935 F.2d at 1109, this is sufficient to plausibly plead a protected interest in her intended land use at the motion to dismiss stage.
The Colorado Court of Appeals decision in Eason, 70 P.3d 600, adopted by the Tenth Circuit in Jordan-Arapahoe, 633 F.3d 1022,
The remainder of Defendant's arguments dispute the facts alleged by Plaintiff and, as such, need not be addressed at the motion to dismiss stage.
For the foregoing reasons, it is ORDERED as follows:
