Opinion
Case No. 2:01-CV-00071 PGC
March 29, 2004
ORDER AND OPINION DISMISSING CLAIMS, DENYING SUMMARY JUDGMENT FOR PLAINTIFFS, AND GRANTING SUMMARY JUDGMENT FOR DEFENDANTS
This case involves alleged civil rights violations and other illegal acts by the Boulder, Utah Town Council and Planning Commission. It is before the court on the parties' cross motions for summary judgment (#40-1 and #42-1). On April 17, 2003 plaintiffs Julian Hatch d/b/a Freedom from Religion and Lynn Mitchell d/b/a Match and defendants Boulder Town Council and the Boulder Planning Commission (collectively "Boulder") filed motions for summary judgment. On November 20, 2003, the district judge assigned to hear the case recused himself, and the case was reassigned to the undersigned judge. On January 9, 2004, the court heard oral argument on the motions for summary judgment and took the motions under advisement. Having carefully considered the parties' arguments, the factual record, and the relevant law, the court DISMISSES plaintiffs' federal claims, DENIES Hatch and Mitchell's motion for summary judgment (#40-1) and GRANTS Boulder's motion for summary judgment (#42-1) as explained below.
BACKGROUND
This case arises from a long history of disputes between these parties which includes prior litigation in state and federal court. The present case involves multiple allegations of civil rights violations related to various land use planning practices and procedures in the town of Boulder, Utah. Hatch and Mitchell's First Amended Verified Complaint (the "complaint") is quite confusing. Filed on January 9, 2002, it sets forth 69 mostly narrative factual allegations describing events taking place between 1985 and 2001. After giving the factual allegations, the complaint purports to set forth six specific claims for relief based on the following: 42 U.S.C. § 1983; Section 7 of the Utah Constitution; The (Utah) Government Records Access and Management Act (the "GRAMA statute"); the Utah Open and Public Meetings Act; and "Equitable Relief." As Boulder accurately recounts in its briefing, the task of associating plaintiffs' factual allegations with the corresponding causes of action has proved daunting. The single named federal "Claim for Relief is the § 1983 cause of action; therefore, the only federal claims possibly raised in this case are § 1983 claims.
Utah Code Ann. §§ 63-2-101 to -909.
Utah Code Ann. §§ 52-4-1 to -10 (1998).
See First Amended Verified Complaint, at 29-38.
While not obviously tied to specific causes of action, the bulk of the factual allegations in the complaint generally center on three issues: (1) Boulder's alleged refusal to properly develop or abandon property in which plaintiffs purportedly have an interest; (2) Boulder's alleged discrimination against Hatch and Mitchell based on the town's preferential treatment of other entities and individuals; and (3) Boulder's alleged refusal to accommodate Hatch and Mitchell's requests for information and records related to town planning procedures.
This is not the first dispute between these parties over land use planning matters. In 1996 Julian Hatch brought a federal law suit in this court against the town of Boulder and several of its officials, pursuant to 42 U.S.C. § 1983 ("§ 1983"). In that case, Hatch alleged, inter alia, that Boulder had unconstitutionally refused to issue him a proper license authorizing the sale of alcohol, deprived him of his property rights without due process, and took his property without just compensation. After a week long trial beginning April 5, 1999, a jury awarded Hatch $86,000 in compensatory damages under § 1983.
See Freedom From Religion and Julian Hatch v. Town of Boulder, No. 2:96-CV-828 (D. Utah 1996).
Then, in July 1999, Hatch and Mitchell filed a petition for review of decision on conditional use permits and request for injunctive relief in Utah state court. In that case, Hatch and Mitchell alleged that Boulder improperly granted conditional use permits for use by an excavation business ("B E C ") on properties owned by Sam Stout and Rhea Thompson. EEC, Stout and Thompson were all joined as a parties to the litigation. On August 31, 1999, the state trial court heard Hatch and Mitchell's application for preliminary injunction. At the hearing, plaintiffs testified and introduced several exhibits, after which counsel for Boulder made motion to deny the injunction as well as to consolidate the entire case and dismiss it based upon the presumption of validity given by the state statute governing judicial review of administrative land use decisions. The court agreed and dismissed the case, finding that it was without merit and was brought in bad faith. Hatch and Mitchell appealed. On February 23, 2001, the Utah Court of Appeals reversed the lower court's dismissal and concluded that the challenged land use ordinance, Ordinance No. 39, was invalid "from its inception" because the evidence failed to establish the existence of a proper map at the time of the ordinance's adoption. No further proceedings took place after the appellate court's decision.
See Julian Hatch and Lynne Mitchell, Petitioners, v. The Boulder Town Council, et al. Civil No. 99060022 (Utah 6th Dist., 1999).
See Hatch v. Boulder Town Council, 21 P.3d 245 (Utah App. 2001).
This case was filed in January of 2001, just prior to the decision by the Utah Court of Appeals in the state case. The parties have now filed cross motions for summary judgment. Hatch and Mitchell's motion for summary judgment is more correctly styled a motion for partial summary judgment on the merits of their § 1983 claims. Boulder's motion seeks dismissal of all plaintiffs claims, arguing that they are procedurally barred based on claim preclusion principles or otherwise without merit. As discussed herein, the undisputed facts demonstrate that the vast majority of Hatch and Mitchell's claims are barred by federal and state claim preclusion law. To the extent that any federal claims by Hatch and Mitchell are not procedurally barred by claim preclusion, summary judgment is appropriate for Boulder.
ANALYSIS
I. CLAIM PRECLUSION"The doctrine of res judicata serves the important policy of preventing previously litigated issues from being relitigated." Generally, "res judicata embraces two distinct branches: claim preclusion and issue preclusion." Application of claim preclusion law is appropriate in this case based on two prior civil suits — one in federal court and one in state court.
See, e.g., Salt Lake City v. Silver Fork Pipeline Corp., 913 P.2d 731, 733 (Utah 1995).
Maoris Associates, Inc. v. Neways, Inc., 16 P.3d 1214, 1219 (Utah 2000) (citation omitted).
A. Claim Preclusion Based on Prior Federal Court Proceeding
With respect to the preclusion of claims based on a prior federal court proceeding, "federal law of claim preclusion applies." In the Tenth Circuit, preclusion of claims based on a prior federal court proceeding requires: "(1) a judgment on the merits in the earlier action; (2) identity of the parties or their privies in both suits; and (3) identity of the cause of action in both suits." Thus, a "judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." In determining identity of the causes of action, the court uses "the transactional approach," which "provides that a claim arising out of the same `transaction, or series of connected transactions' as a previous suit, which concluded in a valid and final judgment, will be precluded." "What constitutes the same transaction or series of transactions is `to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.'" The majority of federal courts facing the question "have ruled that claim preclusion is applicable to a § 1983 action." The Tenth Circuit has also adopted this view.
Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999) (citations omitted).
Id.
Yapp, 186 F.3d at 1226 n. 4 (citing Rivet v. Regions Bank of La., 522 U.S. 470, 477 (1998)).
Yapp, 186 F.3d at 1226 (citing Restatement (Second) of Judgments § 24 (1982)).
Id. (citations omitted).
Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 83 n. 6 (1984).
See Curley v. Mick, (unpublished), 2000 U.S. App. LEXIS 14622 (10th Cir. 2000) (upholding lower court dismissal of § 1983 action based on claim preclusion).
Applying the federal claim preclusion principles to this case, the court finds that all three factors are satisfied with respect to claims in this case by Julian Hatch. On the first "judgment on the merit" prong, Hatch's § 1983 litigation resulted in a final judgment on the merits after the jury returned a favorable verdict for Hatch.
On the second "identity of parties" prong, Hatch's § 1983 case involved the same parties as this case (e.g., Hatch and Boulder), with the notable exception of Lynne Mitchell. Defendants argue that Mitchell's claims in the present case are also subject to federal claim preclusion analysis because she was in privity with Hatch during his prior federal action. Indeed, the record demonstrates the existence of an ongoing relationship between Hatch and Mitchell, including joint property ownership, simultaneous efforts to petition the town for relief, and significant conveyances real property between the two. However, it is not obvious that these facts establish privity for federal claim preclusion purposes. Because the court need not decide whether Mitchell was in privity with Hatch in the federal case in order to dispose of her claims, the court proceeds on the basis that federal claim preclusion principles apply only to Hatch's claims in this case.
The third and final "identity of claims" prong is satisfied for purposes of federal claim preclusion. Using the "transactional approach" under which the court considers all relevant factors, the record shows substantial factual overlap between the kind of claims brought by Hatch in the prior federal case and those in this case. Many of the factual issues underlying Hatch's federal claims in the present case were covered in the previous case, and nearly all of the claims could and should have been raised in that prior action. To be sure, the complaint in that case was first filed in 1996, well before some of the facts alleged in this case occurred; however, that case did not go to trial until April 5, 1999. The court sees no reason why Hatch could not have sought leave to amend his complaint in that case to include all of the factual events he now alleges occurred prior to April of 1999 — especially when they directly relate to the very same kinds of land use issues which were being litigated at the time. The record shows no attempt to do so. To the extent that the complaint in this case raises federal claims by Hatch based on facts occurring prior to the conclusion of his previous § 1983 action, such claims are dismissed with prejudice. B. Claim Preclusion Based on Prior State Court Proceeding
See Fed.R.Civ.P. 15(a) ("a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires").
The next issue involves application of Utah claim preclusion principles based on Hatch and Mitchell's prior litigation in state court. Claim preclusion analysis under Utah law "is virtually identical" to federal claim preclusion analysis. The Tenth Circuit has held that "it is well established that the federal courts are required by the full faith and credit provision . . . to give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered." This court will accordingly determine the preclusive effect that Utah courts would give the prior state proceeding under Utah law. Under Utah law, claim preclusion bars a claim in a subsequent action if three basic requirements are met: "(1) both cases must involve the same parties, their privies or assignees; (2) the claim that is asserted to be barred must have been presented or be such that it could have been presented in the first case; and (3) the first suit must have resulted in a final judgment on the merits." Utah claim preclusion law "precludes the relitigation of all issues that could have been litigated as well as those that were, in fact, litigated in the prior action." Under Utah claim preclusion law, claims should be joined in a prior action when "the plaintiff was aware of the facts upon which the later claims were based at the time the first suit was filed."
See Your en v. Tintic School Dist., available at 2004 WL 316154 at *2 n. 1 (Utah App. 2004) (comparing Yapp, 186 F.3d 1222 with Macris, 16 P.3d 1214).
Crocog Co. v. Reeves, 992 F.2d 267, 269 (10th Cir. 1993).
Id.; see also Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).
Fitzgerald v. Corbett, 793 P.2d 356, 359 (Utah 1990); see also Culbertson v. Bd. of County Comms'rs of Salt Lake County, 44 P.3d 642, 648 (Utah 2001); Maoris, 16 P.3d at 1219.
Maoris, 16 P.3d at 1219 (emphasis added) (citations and internal quotations omitted).
Id. at 1220.
Applying the Utah claim preclusion factors to the § 1983 claims in the present case, the court finds that the first factor (same parties) is satisfied because this case involves the same parties as the state court petition for review filed in 1999 — namely Hatch and Mitchell as plaintiffs and Boulder as defendant. The third factor is also satisfied because the state court proceeding resulted in a final judgment on the merits: the invalidation of the Boulder ordinance in question. The only factor in dispute is the second one — whether the federal claims in this case could have been raised in the state court action. The court finds that all § 1983 claims in this case whose facts were available to Hatch and Mitchell at the time of their state court case could have and should have been raised in that action.
Boiling v. City and County of Denver is instructive on this issue. There, the Tenth Circuit found that a plaintiffs federal employment claims under 42 U.S.C. § 1981 and 1983 were precluded because she had failed to raise them in a state court action seeking review of an adverse administrative decision by a municipality. Boulder argues that the analysis in Bolling is controlling here, and the court agrees. Like the plaintiff in Bolling, Hatch and Mitchell failed to raise § 1983 claims that could have and should have been raised in the state court case. Therefore, those claims are now precluded.
790 F.2d 67 (10th Cir. 1986).
Id. at 68.
Hatch and Mitchell attempt to distinguish Bolling, arguing that the plaintiffs federal claims precluded there could have been raised at both the administrative level and at the state level, while here, joinder of plaintiffs' other claims to the petition for review of the administrative decision was somehow improper under Utah Code Ann. § 10-9-1001. Plaintiffs' attempts to distinguish Bolling fail for two central reasons. First, the court in Bolling did not uphold preclusion of federal claims based on the plaintiffs failure to raise them in the underlying administrative action. The court explicitly stated that "state administrative determinations which have not been subject to state court review are not given preclusive effect." The Bolling court only precluded federal claims because they were not raised at the state court review of the administrative decision.
Id.
Second, there is no basis for concluding that Utah law would not have permitted joinder of all claims available to Hatch and Mitchell at the time of the state court proceeding. To the contrary, there is no express or implied limitation on the joinder of ancillary claims to a petition for review of an administrative land use decision under the applicable Utah statute. In addition, "the policy of the Utah Rules of Civil Procedure favors joinder of claims [and the rules] allow liberal joinder of causes of action which arise from the same transaction." "Justice and efficiency of court administration do favor singular disposition, whenever possible, of all claims having a common basis." This has been borne out in Utah case law where federal constitutional claims are routinely joined to state court actions reviewing the legality of land use decisions.
Utah Code Ann. § 10-9-1001.
Dairyland Ins. Corp. v. Smith, 646 P.2d 737, 740 (Utah 1982) (discussing Rules 13, 18, and 20 of the Utah Rules of Civil Procedure).
Id.
See e.g. Spencer v. Pleasant View City, 80 P.3d 546 (Utah 2003) (adjudicating federal and state claims arising from municipal land use decisions).
Hatch and Mitchell argue that the language of Utah Code Ann. § 10-9-1001 somehow limited their ability to bring related claims in the prior state court action. The court disagrees. The statute says nothing about joinder of claims and only limits the method by which a challenged decision is reviewed. The statutory language requires the reviewing state court to "presume the land use decisions and regulations are valid and determine only whether or not the decision is arbitrary, capricious, or illegal." Nothing in the language forbids the court from simultaneously considering related statutory and constitutional claims. On its face, the language appears to allow consideration of any legitimate basis for determining whether a decision is "illegal." This would presumably include consideration of both state and federal statutory and constitutional law while likely excluding other irrelevant factors such as personal policy preferences.
Utah Code Ann. § 10-9-1001(3)(a) and (b) (internal punctuation and lettering omitted).
The circumstances of this case are very similar to Crocog Co. v. Reeves, where, as in Bolling, the Tenth Circuit upheld the district court's dismissal of federal § 1983 claims not raised in a prior state court action. In Crocog Co., the plaintiffs had petitioned the Colorado state court for review of an adverse county administrative decision under a statute allowing the state court to determine whether "the agency action is arbitrary or capricious, . . . contrary to constitutional right, power privilege or immunity, . . . or otherwise contrary to law." In upholding dismissal of § 1983 claims later brought in federal court, the court stated: "It would appear from the foregoing language that Plaintiff probably could have brought its federal claim . . . in its state action that reviewed the administrative determination. At a minimum, Plaintiff should have attempted to bring its § 1983 claim before the state court." The court then explained:
992 F.2d 267, 269 (10th Cir. 1993).
Id. at 268-269.
Id. at 269 (quoting Colo. Rev. Stat. § 24-4-106(6) (1988)) (quotations omitted).
Id.
Given the plain language of [the administrative appeal statute], which authorizes relief if the administrative ruling was "otherwise contrary to law," a holding that the present constitutional claim could not be heard in the state court proceeding would be surprising. The point for res judicata purposes, however, is that Plaintiff made no attempt to bring its 1983 claim in that forum. If it had sought unsuccessfully to join the 1983 claim, or if Colorado had a clear rule against such joinder that made the attempt futile, we might have a different case. A plaintiff, however, cannot claim he lacked a full and fair opportunity to litigate a legal theory based on speculation of what might have happened if he had raised it in the prior proceeding.
Id. at 269-270.
Id. at 269-270.
As in Crocog Co., here Hatch and Mitchell never even attempted to raise any of their related claims in the state court action, including § 1983 claims, despite the fact that Utah Code Ann. § 10-9-1001 appears to authorize it, Utah certainly does not have a rule against such joinder, and Utah policy expressly favors joinder of related claims.
Nearly all alleged facts purporting to give a basis for plaintiffs' § 1983 claims in this case involve Boulder's actions (or inaction) relative to the plaintiffs and their businesses occurring before the filing of the petition for review and dismissal of the case at the state court hearing. Dismissal in this case is thus appropriate as to all those federal claims available at the time of Hatch and Mitchell's state court proceeding which were not raised. The court does not reach the issue of whether summary judgment is appropriate on the merits of the barred claims. Claim preclusion bars nearly all plaintiffs' federal claims, leaving only a few claims which survive claim preclusion analysis to be considered next.
II. SUMMARY JUDGMENT ON NON-PRECLUDED CLAIMS.
To the extent, that a few of plaintiffs' federal § 1983 claims arise from alleged facts occurring subsequent to the resolution of the state court action, such claims are not precluded under the court's claim preclusion analysis. Dismissal of the remaining claims is nonetheless appropriate on other grounds, consistent with defendants' motion for summary judgment.
A. Summary Judgment Standard
Summary judgment is appropriate when there is "no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." In deciding a motion for summary judgment, this court reviews all the evidence in the record, construing it and drawing all inferences therefrom most favorably to the non-moving party. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment on the mere hope that something will turn up at trial." While a party opposing summary judgment "has no burden of proof, as such," it "may not rely on mere allegations, or denials, contained in its pleadings or briefs. Rather, [it] must set forth specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegations."
Rule 56(c), Fed.R.Civ.Proc.
See Guides, Ltd. v. Yarmouth Group Property Management, Inc., 295 F.3d 1065 (10th Cir. 2002) (citations omitted).
Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).
Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 982 (10th Cir. 2002).
In defending against defendants' motion for summary judgment in this case, Hatch and Mitchell have relied heavily, at times exclusively, on specific facts asserted in the verified complaint. Under the Federal Rules of Civil Procedure, the court may view a verified complaint as an affidavit at the summary judgment stage, as the Tenth Circuit has explained:
Although a nonmoving party may not rely merely on the unsupported or conclusory allegations contained in his pleadings, a verified complaint may be treated as an affidavit for summary judgment if it satisfies the standards for affidavits set out in Rule 56(e) [which] requires that the affidavit be based on personal knowledge, contain facts which would be admissible at trial, and show that the affiant is competent to testify on the matters stated therein.
Conaway, 853 F.2d at 792 (emphasis added); see also Van Riper v. Wexford Health Sources, Inc., (unpublished) 67 Fed. Appx. 501 (10th Cir. 2003).
Conaway, 853 F.2d at 792 (emphasis added); see also Van Riper v. Wexford Health Sources, Inc., (unpublished) 67 Fed. Appx. 501 (10th Cir. 2003).
Even if the court treats the complaint as an affidavit, the Circuit has indicated that conclusory allegations do not state a valid § 1983 claim, and the court should not have to sort through extensive pleadings in an attempt to identify the saliant facts and theories of the complaint. B. Potential § 1983 Claims Based on Facts Subsequent to the Prior Litigation
See Howard v. Dickerson, 34 F.3d 978, 980 (10th Cir. 1994); Smith v. Plati, 258 F.3d 1167, 1176 (10th Cir. 2001), cert. denied, 537 U.S. 823 (2002).
Reviewing the complaint in this case, paragraphs 57-61 and 66-69 contain facts which are alleged to have occurred after the previous litigation. These facts potentially provide a basis for § 1983 claims that were unavailable in the prior litigation. In order to satisfy the required elements of a valid § 1983 claim, plaintiffs must establish (1) the violation of aright or the deprivation of a property interest protected by the Constitution or federal laws, and (2) the deprivation of that right by defendants acting under color of state law. While the defendants in this case appear to have been acting under color of state law, plaintiffs factual allegations fail to establish the requisite federal constitutional or statutory violation. Having carefully reviewed the complaint and the undisputed facts on record, the court finds that Hatch and Mitchell's remaining § 1983 claims are without merit or unripe and should be dismissed.
See Buckley Const., Inc. v. Shawnee Civic Cultural Development Authority, 933 F.2d 853, 857 (10th Cir. 1991); Southern Disposal, Inc. v. Texas Waste Management, a Div. of Waste Management of Texas, Inc., 161 F.3d 1259, 1265 (10th Cir. 1998); Jacobs, Visconsi Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111, 1115-16 (10th Cir. 1991).
The court agrees with defendants' that at their essence, Hatch and Mitchell's remaining claims are, in reality, local land use disputes which are better reviewed under state law. "It is not enough simply to give state law claims constitutional labels such as `due process' or `equal protection' in order to raise a substantial federal question under section 1983." As the First Circuit has explained, "the conventional planning dispute — at least when not tainted with fundamental procedural irregularity, racial animus, and the like — which takes place within the framework of an admittedly valid state subdivision scheme is a matter primarily of concern to the state and does not implicate the Constitution. [The] federal court, after all, `should not sit as a zoning board of appeals,'" Under § 1983, plaintiffs "are not permitted to build their case on mere `opprobrious epithets' of malice, or `the gossamer threads of whimsy, speculation, and conjecture.'" As with all the factual allegations throughout their confusing complaint, plaintiffs have failed to associate their post-litigation allegations with discrete causes of action. The court has made an attempt to the best of its ability to decipher the complaint, and on that basis proceeds to analyze the remaining federal claims based on the underlying fact paragraphs.
Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982), cert. denied, 459 U.S. 989 (1982).
Id. (quotation and internal ellipses omitted).
Id. at 830, quoted in Patterson v. American Fork City, 67 P.3d 466, 474-475 (Utah 2003).
Paragraphs 57-59 essentially allege that Boulder failed to produce a requested copy of the "General Plan existing use map," and that the "zoning map" is inaccurate with respect to plaintiffs properties. These paragraphs fail to support a cognizable federal cause of action. Issues concerning existence and production of the town map were specifically addressed by the decision of the Utah Court of Appeals in Hatch and Mitchell's favor. Paragraphs 58 and 59 appear to allege that Boulder produced an inaccurate zoning map and clarified its land use ordinance, perhaps as some sort of retaliation against Hatch and Mitchell. Such bare allegations cannot survive summary judgment under § 1983 because they are conclusory, speculative, lacking in foundation, and wholly unsupported by the factual record.
Paragraph 60 and 61 also fail to support a federal cause of action. These paragraphs call into question the validity of another land use ordinance, Ordinance No. 39B, which temporarily replaced the invalid ordinance at issue in the petition for review. Paragraph 60 specifically alleges that the town of Boulder has refused to develop or abandon the Brooks subdivision, and concludes that there is "no reason" for classifying the subdivision as High-Density Residential. Paragraph 61 specifically alleges that under Ordinance 39B, plaintiffs' properties are the only ones with pre-existing commercial businesses located in an area that does not allow for conditional use permits and that plaintiffs have been restricted in developing their businesses.
With respect to Ordinance No. 39B, the court notes that Hatch and Mitchell failed to challenge the ordinance in state court as provided under Utah law, and there is nothing in the complaint that states a federal cause of action based on its adoption. As for the town's alleged failure to "develop or abandon" the Brooks subdivision, the court is unaware of any valid § 1983 claim based solely on a municipality's refusal to develop or abandon roads or subdivisions. Such a claim theory, if accepted, would inevitably subject local municipalities to constant federal litigation. That is inconsistent with the ripeness doctrine, as interpreted by the Tenth Circuit, which states that the court should not prematurely adjudicate "disputes involving administrative policies or decisions not yet formalized and felt in a concrete way by the challenging parties." Here, there is no evidence that the valid preexisting uses of Hatch or Mitchell's property have been infringed upon in any concrete manner, and Hatch and Mitchell have not established a vested right in having the Brooks subdivision "developed or abandoned" at their bidding. In order to have a property interest entitled to Fourteenth Amendment protection "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."
Roe No. 2 v. Ogden, 253 F.3d 1225, 1231 (10th Cir. 2001) (citations and internal quotation omitted).
Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
Lastly, paragraphs 66-69 also fail to support a federal claim. Hatch and Mitchell allege that after the Utah Court of Appeals decision on February 23, 2001, the town contacted the Stouts and BEC, who were party to the state case, and accepted business license applications from them for a variety of businesses just before the enactment of the temporary land use ordinance. Hatch and Mitchell thus allege that the town "acted in an attempt to allow Stout and BEC . . . to use their land without any regard to the Land Use Ordinance, while strictly enforcing it against the Plaintiffs," and that "[s]uch action was done maliciously because of the ruling of the Utah Supreme Court [sic] against the Town on its passage of its prior Land Use Ordinance."
First Amended Verified Complaint, ¶ 68.
These allegations are again conclusory and without sufficient foundation to survive a support motion for summary judgment. There is no evidence in the record that Stout and BEC were "allowed to use their land without regard to Ordinance 39B" or that it was ever "strictly enforced" against Hatch and Mitchell. Additionally, the undisputed facts on record refute the allegations because Hatch and Mitchell have both admitted they have no personal knowledge on which to base such allegations, and they have produced no supporting evidence. As a result, these paragraphs fail to raise any cognizable federal claim under § 1983.
Compare Affidavit of Judith Davis, (Boulder City Recorder), at ¶ 15 with Deposition of Julian Hatch, p. 140; Deposition of Lynn Mitchell, p. 136-37.