Onyx Properties, et al v. Board of County Commissioner

Filing

[10410447] Affirmed. Terminated on the merits after oral hearing. Written, signed, published; Judges Hartz, authoring judge, Ebel and Moritz. Mandate to issue. [15-1141, 15-1197]

Appellate Case: 15-1141

Document: 01019699183

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PUBLISH

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FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

October 3, 2016

FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

ONYX PROPERTIES LLC, a Colorado
limited liability company; EMERALD
PROPERTIES, LLC, a Colorado limited
liability company; PAUL NAFTEL;
SHAUNA NAFTEL,
Plaintiffs - Appellants,
and
LOCAL SERVICE CORPORATION, the
Estate of Chapter 11 Bankruptcy in re:
Simon E. Rodriquez, Trustee; KENNETH
G. ROHRBACH; KAREN L.
ROHRBACH; PAUL K. ROHRBACH;
COMPOST EXPRESS, INC., a Colorado
corporation,
Plaintiffs,
v.

No. 15-1141

BOARD OF COUNTY
COMMISSIONERS OF ELBERT
COUNTY, in its official capacity,
Defendant - Appellee.
-----------------------------NATIONAL ASSOCIATION OF HOME
BUILDERS,
Amicus Curiae.
–––––––––––––––––––––––––––––––––––

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ROBERT QUINN, an individual; KAREN
QUINN, an individual; PATRICIA
RODENZ, an individual; MICHAEL
MCCLENDON, an individual; DAVID
AKSLAND, an individual; SEAN
MULVIHILL, an individual; STEPHEN
MULVIHILL, an individual; EDWIN
BAKER, an individual; VIRGINIA
BAKER, an individual; STAN LYNN, an
individual; EDWARD LOVELACE, an
individual; DONNA LOVELACE, an
individual; EJL ENTERPRISES, INC., a
Colorado corporation; PRAIRIE LAND,
LLC, a Colorado limited liability company;
CRAIG CLAUSEN, an individual;
KENLOU, LLC, a dissolved Colorado
corporation; GARY LEVIN, an individual;
FIDDLEBACK RANCH, LLC, a Colorado
limited liability company; WILLIAM
PAUL SUMMERS, an individual;
EUGENE ERICKSON, an individual;
ANNE ERICKSON, an individual; LORA
KRISTA, an individual; REBECCA
ARNOLD, an individual; DENNIS
LEONARD, an individual; THOMAS
MARONEY, an individual; STATION
GULCH RANCH, LLC, a Colorado
limited liability company; RICHARD
O'LEARY, an individual; LINDA
O'LEARY, an individual;
MORNINGSTAR DEVELOPMENT,
LLC, a Colorado limited liability company;
AMANDA PINES, LLC, a Colorado
limited liability company; AMANDA
PINES NORTH, LLC, a Colorado limited
liability company; LADERO LAND
DEVELOPMENT, INC., a Colorado
corporation,
Plaintiffs - Appellants,
v.

No. 15-1197
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BOARD OF COUNTY
COMMISSIONERS OF ELBERT
COUNTY,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. Nos. 1:13-CV-02818-CMA-NYW and
1:10-CV-01482-LTB-KLM)
_________________________________
James D. Thorburn, The Law Office of James D. Thorburn, LLC, Greenwood Village,
Colorado, for Plaintiffs-Appellants.
Josh A. Marks (Melanie B. Lewis with him on the briefs), Berg Hill Greenleaf &
Ruscitti, LLC, Boulder, Colorado; for Defendant-Appellee.
Troy R. Rackham, Fennemore Craig, P.C., filed an Amicus Curiae brief for National
Association of Home Builders, Denver, Colorado, in support of Appellants.
_________________________________
Before HARTZ, EBEL, and MORITZ, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
The plaintiffs in the two cases before us on appeal complain that they were denied
due process when the Board of County Commissioners of Elbert County (the Board)
required them to rezone their properties before they could subdivide them. They allege
that after the Board lost the documents reflecting the prior comprehensive zoning
ordinance, it created new documents without following proper procedures for enacting an
ordinance and covered up their misconduct. Perhaps these allegations state a claim under
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Colorado law. We hold, however, that the plaintiffs were not deprived of their right to
due process under the United States Constitution.
I.

BACKGROUND
The essential facts are undisputed. The Board enacted comprehensive zoning

regulations on July 5, 1983. The regulations referred to an official county zoning map.
By 1997, however, the Board had discovered that its files contained only six pages of the
regulations and no zoning map. It therefore authorized Planning Director Kenneth Wolf
to research historical zoning information and report his findings in a series of
replacement maps and zoning regulations (the Wolf Documents). Although no public
proceedings were conducted to approve the Wolf Documents, county officials treated
them as authoritative.
Between 1997 and 2008 a number of landowners in the county sought to
subdivide their properties into parcels of 35.00 to 59.99 acres. They were informed by
county officials that their properties were zoned A-Agriculture and that county
regulations required such land to be rezoned as A-1 to be subdivided. The landowners
therefore applied to the Board for rezoning, paid the required fees, and obtained approval
of their applications. Only after incurring substantial expenses did they become aware
that the Board had not formally adopted the regulations and maps in the Wolf Documents
that required the rezoning.
The first landowners to file suit were Onyx Properties, LLC and its coplaintiffs,
who brought a putative class action in the United States District Court for the District of
Colorado (the Onyx Litigation). They sought injunctive relief and damages under 42
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U.S.C. § 1983, on the grounds that the Board’s actions violated their rights to substantive
and procedural due process. The district court denied class certification, and this court
declined to grant a petition for permission to appeal that decision. Robert Quinn and 31
other landowners who had been members of the putative class then jointly filed suit
against the Board in the same court (the Quinn Litigation) raising the same claims.
The district court in Onyx dismissed the substantive-due-process claim on the
pleadings and granted summary judgment in the Board’s favor on the procedural-dueprocess claim. See Onyx Properties v. Bd. of Cty. Comm’rs, No. 10-cv-01482-LTB-KLM
(Consolidated w/ 11-cv-02321-RPM-MJW), 2015 WL 1361393, at *7 (D. Colo. Apr. 20,
2015). In Quinn another judge of the district court initially dismissed the first amended
complaint without prejudice for failure to state a claim upon which relief could be
granted. See Quinn v. Bd. of Cty. Comm’rs, No. 13-cv-02818-CMA-BNB, 2015 WL
3457732, at *1 (D. Colo. June 11, 2015). The plaintiffs responded with a motion to
permit them to submit a second amended complaint, but the court concluded that the
amendment would be futile and dismissed both the procedural- and substantive-dueprocess claims with prejudice. See id. at *1, *3; Jefferson Cty. Sch. Dist. No. R-1 v.
Moody’s Inv’rs Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (leave to amend may be
denied as futile if the complaint as amended would be subject to dismissal).
The Quinn plaintiffs appeal the district court’s dismissal of both their proceduraland substantive-due-process claims. The Onyx plaintiffs do not pursue their substantivedue-process claim on appeal, but argue that summary judgment was improperly granted
on their procedural-due-process claim.
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We have jurisdiction under 28 U.S.C. §1291. We have consolidated the two cases
for disposition on appeal and affirm both judgments. We hold that the Board’s adoption
of the Wolf Documents as the official zoning regulations and maps was a legislative act,
so the Due Process Clause required no hearing. And the conclusory allegations of coverup and misrepresentation in the Quinn Litigation do not present a plausible substantivedue-process claim.1
II.

DISCUSSION
We review de novo a district court’s order granting summary judgment, “applying

the same standards that the district court should have applied.” Schanzenbach v. Town of
Opal, Wyo., 706 F.3d 1269, 1272 (10th Cir. 2013) (internal quotation marks omitted).
“Summary judgment is appropriate if the pleadings and the record establish that there is
no genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law.” Id. “We [likewise] review the district court’s order of dismissal de novo,
accepting the complaint[‘s] well-pleaded factual allegations as true.” Hyde Park Co. v.
Santa Fe City Council, 226 F.3d 1207, 1209 (10th Cir. 2000). To survive a motion to
dismiss under Fed. R. Civ. P. 12(b)(6), a claim for relief must plead sufficient facts to

1

In light of this disposition, we need not address the Onyx plaintiffs’ arguments
concerning denial of class certification or the prudential standing of a coplaintiff because
any potential claims based on the same alleged due-process violations must also fail. See
In re Krause, 637 F.3d 1160, 1168 (10th Cir. 2011) (“Unlike certain other statutory or
constitutional jurisdictional questions, the resolution of a sticky prudential standing
question may be bypassed in favor of deciding the case on the merits when it’s clear that
the appellant will lose there anyway.”); Wiesmueller v. Kosobucki, 513 F.3d 784, 787
(7th Cir. 2008) (the question of class certification is moot when the claim is resolved on
grounds that would be equally applicable to any other class member).
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support a reasonable inference that the defendant is liable as alleged. See JordanArapahoe, LLP v. Bd. of Cty. Comm’rs, 633 F.3d 1022, 1025 (10th Cir. 2011).
The Due Process Clause of the Fourteenth Amendment prohibits the state from
depriving any person “of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “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
regardless of the procedures used to reach that decision.” Hyde Park, 226 F.3d at 1210.
The Board argues that plaintiffs have no constitutional claim because their interest in how
their land is zoned is not a “property” interest protected by the Due Process Clause. But
it is unnecessary for us to decide this issue because even assuming all plaintiffs possessed
a constitutionally protected property interest, they must still be denied relief.2
A.

Procedural Due Process

“The essence of procedural due process is the provision to the affected party of
some kind of notice and . . . some kind of hearing.” Moore v. Bd. of Cty. Comm’rs, 507

2

Federal Lands Legal Consortium v. United States, 195 F.3d 1190, 1195 (10th Cir.
1999), suggested that American Manufacturers Mutual Insurance Co. v. Sullivan, 526
U.S. 40, 59 (1999), requires us always to address the existence of a protected property
interest when considering a due-process claim. “We are bound by the precedent of prior
panels absent en banc reconsideration or a superseding contrary decision by the Supreme
Court.” United States v. Killion, 7 F.3d 927, 930 (10th Cir. 1993). But there is now
contrary Supreme Court authority. See City of Cuyahoga Falls v. Buckeye Cmty. Hope
Found., 538 U.S. 188, 198 (2003) (declining to decide whether respondents possessed a
property interest in building permits because their substantive-due-process claim would
fail anyway). Therefore, neither Federal Lands nor Nichols v. Board of Cty. Comm’rs,
506 F.3d 962, 969 n.2 (10th Cir. 2007), which relied on Federal Lands without
discussing City of Cuyahoga Falls, remains binding on this point.
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F.3d 1257, 1259 (10th Cir. 2007) (internal quotation marks omitted). The plaintiffs do
not clearly articulate what notice or what hearing they should have received, but we
understand their arguments as focusing on the failure of the Board to follow required
state procedures for the enactment of a zoning ordinance before it implemented the Wolf
Documents as if they were validly promulgated.3 Colorado law requires that “before the
adoption of any zoning resolutions, the board of county commissioners shall hold a
public hearing thereon, the time and place of which at least fourteen days’ notice shall be
given.” Colo. Rev. Stat. § 30-28-112.
Violation of state procedural requirements, however, does not in itself deny
federal constitutional due process. See Guttman v. Khalsa, 669 F.3d 1101, 1115 (10th
Cir. 2012) (“A failure to comply with state or local procedural requirements does not
necessarily constitute a denial of federal due process; the alleged violation must result in
a procedure which itself falls short of standards derived from the Due Process Clause.”
(brackets and internal quotation marks omitted)); Rector v. City & Cty. of Denver, 348

3

The Onyx plaintiffs argue, “Since the Wolf Maps and Wolf Regulations were adopted
without any process, and these documents were enforced against the [plaintiffs], the
documents took away the [plaintiffs’] property rights to develop their properties in
violation of the due process clause.” Onyx Properties, et al. v. Board of County
Commissioners of Elbert County, No. 15-1141, Aplt. Br. at 8. The Quinn plaintiffs’
proposed second amended complaint alleges: “Rather than taking the constitutional route
in holding a due process hearing to adopt the maps. . . , the [Board] implemented a
clandestine policy that [Wolf] would create zoning maps and then sign them himself
. . . . The County then represented that the Wolf Maps were the ‘official’ 1983 maps of
the County’s 1983 zoning regulations.” Robert Quinn, et al. v. Board of County
Commissioners of Elbert County, No. 15-1197, Proposed Second Am. Compl., Aplt. App.
Vol. II at 365 ¶ ¶ 30-31.
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F.3d 935, 947 (10th Cir. 2003) (“It is well established . . . that a state’s violation of its
own laws does not create a claim under § 1983.”); Norton v. Vill. of Corrales, 103 F.3d
928, 930 (10th Cir. 1996) (“[T]he result of error in the administration of state law [the
failure to properly publish an ordinance], though injury may result, is not a matter of
federal judicial cognizance under the due process clause of the fourteenth amendment.”
(internal quotation marks omitted)); see also Gryger v. Burke, 334 U.S. 728, 731 (1948)
(“We cannot treat a mere error of state law, if one occurred, as a denial of due process;
otherwise, every erroneous decision by a state court on state law would come here as a
federal constitutional question.”). Hence, two cases relied on by the plaintiffs—Carter v.
City of Salina, 773 F.2d 251, 255 (10th Cir. 1985), and Bd. of Cty. Comm’rs v. Rohrbach,
226 P.3d 1184, 1186 (Colo. App. 2009)—are irrelevant to our analysis because they
decided only the requirements of state law.
We therefore turn to what the federal Constitution requires. As the following
analysis shows, the plaintiffs have failed to present a federal violation because the
adoption of a general zoning law is a legislative act, and the Supreme Court long ago
established that the federal Constitution does not require a hearing on the adoption of
legislation.
Early in the last century the Supreme Court held that constitutional procedural due
process does not govern the enactment of legislation. See Bi-Metallic Inv. Co. v. State
Bd. of Equalization, 239 U.S. 441, 445 (1915). In Bi-Metallic the Colorado Tax
Commission and the State Board of Equalization had ordered a 40% increase in the
valuation of all taxable property in Denver. See id. at 443. The plaintiff sued to enjoin
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enforcement of the order on the ground that it had been denied its due-process right to be
heard. See id. at 444. The Court held that a hearing was not constitutionally required for
each affected landowner before the adoption of a generally applicable tax increase. See
id. at 445. It explained that such a requirement would be too burdensome, and the public
had other means of influencing legislative decisions:
Where a rule of conduct applies to more than a few people, it is
impracticable that everyone should have a direct voice in its adoption. The
Constitution does not require all public acts to be done in town meeting or
an assembly of the whole. General statutes within the state power are
passed that affect the person or property of individuals, sometimes to the
point of ruin, without giving them a chance to be heard. Their rights are
protected in the only way that they can be in a complex society, by their
power, immediate or remote, over those who make the rule. If the result in
this case had been reached, as it might have been by the state’s doubling the
rate of taxation, no one would suggest that the 14th Amendment was
violated unless every person affected had been allowed an opportunity to
raise his voice against it before the body intrusted by the state Constitution
with the power. . . . There must be a limit to individual argument in such
matters if government is to go on.
Id. As the Supreme Court wrote decades after Bi-Metallic:
In altering substantive rights through enactment of rules of general
applicability, a legislature generally provides constitutionally adequate
process simply by enacting the statute, publishing it, and, to the extent the
statute regulates private conduct, affording those within the statute’s reach a
reasonable opportunity both to familiarize themselves with the general
requirements imposed and to comply with those requirements.
United States v. Locke, 471 U.S. 84, 108 (1985); see Logan v. Zimmerman Brush Co.,
455 U.S. 422, 433 (1982) (a “legislative determination [terminating a welfare program or
granting defenses and immunities to state officials] provides all the process that is due”).
“[T]he general theory of republican government is not due process through individual
hearings and the application of standards of behavior, but through elective representation,
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partisan politics, and the ultimate sovereignty of the people to vote out of office those
legislators who are unfaithful to the public will.” Rogin v. Bensalem Twp., 616 F.2d 680,
694 (3d Cir. 1980). 4
We recognize that not all actions by municipal boards are legislative. When the
action has a limited focus (only a few people or properties are affected) and is based on
grounds that are individually assessed, it may be more adjudicative than legislative and
therefore subject to traditional procedural requirements of notice and hearing. Thus, BiMetallic distinguished the Court’s earlier decision in Londoner v. City and Cty. of
Denver, 210 U.S. 373 (1908), which held that constitutional due process required a
hearing, because in the earlier case the “board had to determine whether, in what amount,
and upon whom a tax for paving a street should be levied . . . [and a] relatively small
number of persons was concerned, who were exceptionally affected, in each case upon
individual grounds.” Bi-Metallic, 239 U.S. at 446 (internal quotation marks omitted). In
such circumstances the need for additional procedural protections is greater because

4

The following sentence in Bi-Metallic may be misleading if read out of context: “In
considering this case in this court we must assume that the proper state machinery has
been used, and the question is whether, if the state Constitution had declared that Denver
had been undervalued as compared with the rest of the state, and had decreed that for the
current year the valuation should be 40 per cent higher, the objection now urged could
prevail.” 239 U.S. at 445 (emphasis added). This might be taken as a suggestion that
there could have been a due-process violation had the tax assessment been promulgated
contrary to state law. But earlier in the opinion the Court had said, “With these
suggestions [based on state law] we have nothing to do. They are matters purely of state
law.” Id. at 444. Thus, the “we must assume” language appears to be no more than a
statement that the Court assumes that state law was followed because compliance with
state law was not pertinent to its analysis. We are aware of no authority that has
interpreted the Bi-Metallic sentence as stating that a violation of state law constitutes a
denial of due process.
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political remedies are often unattainable by individuals or small groups, see Ind. Land
Co., LLC v. City of Greenwood, 378 F.3d 705, 710 (7th Cir. 2004), and the grant of
procedural safeguards to a few does not impose as great a burden on government. See
Kaahumanu v. Cty. of Maui, 315 F.3d 1215, 1220–21 (9th Cir. 2003) (decision to grant or
deny conditional-use permit was administrative action distinguishable from legislative
enactment of a general zoning ordinance).
Bi-Metallic controls here because adoption of a general zoning ordinance is
legislative action. In distinguishing between legislative and administrative action, some
courts have considered “the nature of the decisionmaking body” as elected or appointed;
the type of decision (the adoption of a “comprehensive plan” or just the grant of a
variance); and whether the action involves “general policy formulations, which are
considered legislative, [or] specific applications of previously formulated policy, which
are considered administrative.” Developments in the Law—Zoning, 91 Harv. L. Rev.
1427, 1509 (1978). Others have focused on (1) the “particularity of the impact of the
state action,” and (2) the factual basis for the action—legislation is typically based on
“generalizations concerning a policy or state of affairs” that “do not usually concern the
immediate parties but . . . help the tribunal decide questions of law, policy, and
discretion,” whereas administrative action is typically based on adjudicative facts that
“relate with greater specificity to individuals or particular situations.” Id. at 1510−11; see,
e.g., Hughes v. Tarrant Cty., 948 F.2d 918, 921 (5th Cir. 1991) (using these two factors
to assess whether action was legislative for purposes of legislative immunity); Crymes v.
DeKalb Cty., 923 F.2d 1482, 1485 (11th Cir. 1991) (same); see also L C & S, Inc. v.
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Warren Cty. Area Plan Comm’n, 244 F.3d 601, 604 (7th Cir. 2001) (“[T]he generality
and consequences[] of an enactment determine whether it is really legislation or really
something else.”); Harris v. Cty. of Riverside, 904 F.2d 497, 501–02 (9th Cir. 1990)
(“[T]he character of the action, rather than its label, determines whether those affected by
it are entitled to constitutional due process.”); Cherry Hills Resort v. Cherry Hills Vill.,
757 P.2d 622, 625 (Colo. 1988) (“Legislative action is usually reflective of some public
policy relating to matters of a permanent or general character, is not normally restricted
to identifiable persons or groups, and is usually prospective in nature.”).
Under any of these standards, the adoption of a comprehensive zoning ordinance
is a legislative act. A zoning plan is based on community-wide development goals, not
on the particular facts of individual situations. See Developments, 91 Harv. L. Rev. at
1512–13. It involves the discretionary implementation of prospective policies rather than
the application of an existing policy to a specific landowner. See Rogin, 616 F.2d at 693.
Zoning plans are generally applicable even though their impact may be felt differently by
specific landowners. See id. at 693 & n.60.
The case law in our fellow circuits reflects this view. See, e.g., Smithfield
Concerned Citizens v. Town of Smithfield, 907 F.2d 239, 245 (1st Cir. 1990) (enactment
of zoning ordinance is a legislative act); Cty. Concrete Corp. v. Town of Roxbury, 442
F.3d 159, 169 (3d Cir. 2006) (municipal body’s act of recommending or voting for
change in permitted uses in a zoning district is legislative in character); Jackson Court
Condos., Inc. v. City of New Orleans, 874 F.2d 1070, 1072, 1076 (5th Cir. 1989)
(moratorium on establishment of time-share condominiums in residential area was a
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legislative zoning decision of broad applicability to which no procedural-due-process
rights attached); Dennis v. Vill. of Tonka Bay, 156 F.2d 672, 674 (8th Cir. 1946)
(enactment of zoning ordinance is “legislative in character”); Kuzinich v. Santa Clara
Cty., 689 F.2d 1345, 1349 (9th Cir. 1982) (“[T]he enactment of a general zoning
ordinance is a legislative act.”); Kentner v. City of Sanibel, 750 F.3d 1274, 1280 (11th
Cir. 2014) (generally applicable, prospective, policy-making zoning ordinance restricting
building of docks and piers is a legislative act); see also Calvert v. Safranek,
209 F. App’x 816, 819 (10th Cir. 2006) (“In Colorado, adopting zoning ordinances is a
legislative function entrusted to the boards of county commissioners.”).
To be sure, state-required enactment procedures may not have been followed when
the Board endorsed the Wolf Documents. But failure to comply with these procedures
does not make the Board’s action nonlegislative. When the issue is whether a hearing
was constitutionally required before taking official action, the focus is on the nature of
that action. A procedural failure in the approval process may render legislation invalid
under state law but does not change its character as legislation. See Hoffman v. City of
Warwick, 909 F.2d 608, 620–21 (1st Cir. 1990) (uniform policy decision not to enforce
statute that provided seniority benefits “was a legislative-type decision for which no
individual hearing was necessary” despite the failure to follow proper state procedures to
repeal the statute before ceasing to provide the entitlement); Smith v. City of Picayune,
795 F.2d 482, 488 (5th Cir. 1986) (enactment of zoning ordinance without notice or
hearing required by state law did not support a procedural-due-process claim). We do not
read Abraham v. Pekarski, 728 F.2d 167, 174 (3d Cir. 1984), relied on by the plaintiffs,
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as holding to the contrary because it involved a clearly nonlegislative act—the firing of
an employee. See Acierno v. Cloutier, 40 F.3d 597, 614 (3d Cir. 1994) (“We reject the
notion that our decision in Abraham stands for the broad proposition that a mere technical
violation of the statutory procedures specified for legislative action, by itself, converts an
otherwise legislative action into an administrative action.”).
The plaintiffs point to circuit-court decisions requiring notice and a hearing before
a zoning change that affects only one or a few parcels. But those decisions do not cast
doubt on the legislative nature of general zoning decisions, and at least one other circuit
court has held that even such limited zoning changes may be legislative in nature so that
no hearing is required. Compare Nasierowski Bros. Inv. Co. v. City of Sterling Heights,
949 F.2d 890, 896 (6th Cir. 1991) (notice and a hearing were required before amending a
zoning map that impacted only a few landowners and was targeted at the plaintiff’s
property, even though a generally applicable policy-based zoning law would not warrant
such protections), and Harris, 904 F.2d at 502, 504 (although a general zoning plan
amendment is a legislative act that “would not ordinarily give rise to constitutional
procedural due process requirements,” individualized notice was required before a
decision to rezone that affected only two landowners, was distinct from the general
amendment, and specifically targeted the plaintiff’s property), with L C & S, 244 F.3d at
604–05 (amendment to zoning ordinance requiring taverns to obtain permission to open
in commercial district, which was enacted to prevent plaintiffs from opening a bar, was
legislative because the imposition of greater regulation on taverns was a policy decision
that would apply to any would-be tavern owners).
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In any event Nasierowski and Harris do not assist the plaintiffs here. The
plaintiffs do not argue that the Wolf Documents were targeted at them or that the
documents were not generally applicable statements of county policy regarding
development. On the contrary, they contend that the documents constitute a zoning
ordinance subject to state requirements for the adoption of such ordinances. The zoning
requirements imposed by the Wolf Documents were of the type that all courts recognize
would not be subject to a due-process hearing requirement. We hold that the Board’s
adoption of the Wolf Documents was a legislative act and that the federal Constitution
did not afford the plaintiffs the right to a hearing. This does not mean that they have no
remedy for the alleged violation of state procedures. It is just that they must seek that
remedy under state law.
B.

Substantive Due Process

The Due Process Clause contains a substantive component that bars “certain
governmental actions regardless of the fairness of the procedures used to implement
them.” Daniels v. Williams, 474 U.S. 327, 331 (1986). The plaintiffs allege that the
Board’s misrepresentation of the Wolf Documents as the official zoning regulations and
its cover-up of the manner of their adoption were violations of substantive due process.
They are not complaining that a properly enacted zoning ordinance identical to what
appears in the Wolf Documents would violate substantive due process. Cf. Lingle v.
Chevron, 544 U.S. 528, 540–41 (2005) (“[A] municipal zoning ordinance [will] survive a
substantive due process challenge so long as it [is] not clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety, morals, or general welfare.”
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(emphasis and internal quotations marks omitted)). Rather, they focus on the alleged
misrepresentations and cover-up that the Board employed to enforce the Wolf
Documents. These alleged acts were clearly executive, so we apply principles of
substantive due process that govern executive action.
When analyzing executive action, “only the most egregious official conduct can be
said to be arbitrary in the constitutional sense.” Cty. of Sacramento v. Lewis, 523 U.S.
833, 846 (1998) (internal quotation marks omitted). Intentionally or recklessly causing
injury through the abuse or misuse of governmental power is not enough. See Klen v.
City of Loveland, Colo., 661 F.3d 498, 513 (10th Cir. 2011). The actions “must
demonstrate a degree of outrageousness and a magnitude of potential or actual harm that
is truly conscience shocking.” Id. (internal quotation marks omitted).
The restricted scope of substantive-due-process claims reflects “the concern that
§ 1983 not replace state tort law” and “the need to give deference to local policymaking
bodies’ decisions.” Id. This restricted scope is readily apparent in cases involving land
use. The plaintiffs in Klen, who were developers attempting to obtain building permits,
see id. at 501–02, alleged “that the defendants ‘engaged in a continuous campaign of
harassment, deceit, and delay . . . intended to injure [the plaintiffs] . . . in a way
unjustifiable by any government interest,’” id. at 511. They claimed that they had
suffered malicious delay in the issuance of building permits, the imposition of conditions
and fees not authorized by law, and retaliatory citations and further delay after they
complained. See id. at 511–12 & n.6. We acknowledged that arbitrary deprivation of a
property right may violate substantive due process if the arbitrariness is extreme, but we
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concluded that the alleged misconduct was not conscience shocking, noting that “[m]any
of their complaints are examples of the kind of disagreement that is frequent in planning
disputes.” Id. at 512–13 (internal quotation marks omitted).
Other circuits have made clear how high the substantive-due-process bar is in this
context. The First Circuit has “consistently held that the due process clause may not
ordinarily be used to involve federal courts in the rights and wrongs of local planning
disputes” and has limited relief to “truly horrendous situations.” Nestor Colon Medina &
Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992) (political manipulation of the
permitting process did not violate substantive due process); see also Mongeau v. City of
Marlborough, 492 F.3d 14, 19–20 (1st Cir. 2007) (allegations of hostility and animus
motivating the denial of a building permit were not conscience shocking); cf. Nestor
Colon, 964 F.2d at 47 (suggesting that bribery or threats may violate substantive due
process).
Eichenlaub v. Township of Indiana, 385 F.3d 274, 286 (3d Cir. 2004), affirmed the
dismissal of a substantive-due-process claim based on allegations of unnecessary
inspections and enforcement actions, unequal application of subdivision requirements,
delayed permits and approvals, and improperly increased tax assessments. The court said
that the described misconduct did not “rise sufficiently above that at issue in a normal
zoning dispute to pass the ‘shocks the conscience test.’” Id. It noted that there were no
allegations of corruption or self-dealing, interference with constitutionally protected
activity on the property, bias against an ethnic group, or a virtual taking of property
rights. See id.
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Two circuits have set especially strict standards. The Sixth Circuit has held that in
the zoning context even allegations of corruption are insufficient. See EJS Props., LLC v.
City of Toledo, 698 F.3d 845, 851, 862 (6th Cir. 2012) (denial of rezoning because
plaintiff refused to give large donation to local retirement fund did not shock the
conscience). And in Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d
1102, 1103–05 (8th Cir. 1992), the Eighth Circuit held that there was no violation of
substantive due process when the city enforced a comprehensive zoning ordinance that
was invalid under state law because the city had failed to provide proper notice before
adopting it and had failed to properly file the plan. Although the city did not know the
ordinance was invalid at the time, the court stated that “[o]ur decision would be the same
even if the City had knowingly enforced the invalid zoning ordinance in bad faith . . . . A
bad-faith violation of state law remains only a violation of state law.” Id. at 1105.
We need not go so far. There is no allegation here of corruption, self-dealing, or
bias against any protected group or activity. The proposed second amended complaint
conclusorily alleges clandestine activity and a cover-up, but quotes a transcript of a
public Board meeting in August 1997 where the loss of the zoning map is disclosed.
The Quinn plaintiffs assert that, at a minimum, the question of whether the
Board’s conduct was sufficiently arbitrary to violate substantive due process was a
factual issue that should have gone to a jury. But “[t]he ultimate standard for determining
whether there has been a substantive due process violation is whether the challenged
government action shocks the conscience of federal judges.” Klen, 661 F.3d at 513. The

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district court properly dismissed the substantive-due-process claim and refused to permit
the second amended complaint.
III.

CONCLUSION
We AFFIRM the judgments of the district court.

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