Onyx Properties LLC et al v. Board of County Commissioners of Elbert County

Filing 54

ORDER. Defendants Motion to Hold Briefing in Abeyance or Alternatively to Defer Ruling on Summary Judgment Motion. 44 , is DENIED, and I LIFT the STAY on the Rohrbachs Motion for Summary Judgment on Liability Only [Doc #3 in 11-cv-02321-RPM]. I so doing, I ORDER that Elbert County has up to and including 1/4/2012, to file responses to: 1) Plaintiffs Onyx Properties, LLCs Motion for Summary Judgment Liability Only Individual Claim [Doc # 39]; and 2) the Rohrbachs Motion for Summary Judgment on Liability Only. [Doc #3 in 11-cv-02321-RPM]. Plaintiffs has up to and including 1/18/2012 to file replies thereto. By Judge Lewis T. Babcock on 12/14/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 10-cv-01482-LTB-KLM (Consolidated w/11-cv-02321-RPM-MJW)
ONYX PROPERTIES LLC, a Colorado Limited Liability Company;
EMERALD PROPERTIES, LLC, a Colorado Limited Liability Company;
VALLEY BANK AND TRUST, a Colorado State Bank;
PAUL NAFTEL, an individual; and
SHAUNA NAFTEL, an individual,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY,
Defendant.
______________________________________________________________________________
KENNETH G. ROHRBACH,
KAREN L. ROHRBACH,
PAUL K. ROHRBACH, and
COMPOST EXPRESS, INC., a Colorado Corporation,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY, in its official capacity,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on Motion to Hold Briefing in Abeyance or Alternatively to
Defer Ruling on Summary Judgment Motion, filed by Defendant Board of County
Commissioners of Elbert County (“Elbert County”)[Doc #44], asking that I stay briefing and
ruling on the Motion for Summary Judgment on Liability Only – Individual Claim, filed by
Plaintiff Onyx Properties LLC (“Onyx”). [Doc #39] In addition, I address the stay related to the

pending Motion for Summary Judgment on Liability Only filed by Plaintiffs Kenneth G.
Rohrbach, Karen L. Rohrbach Paul K. Rohrbach, and Compost Express, Inc. (collectively, the
“Rohrbachs”). [Doc #3 - filed in 11-cv-02321] Oral arguments would not materially assist me in
my determination of these matters. After consideration of the parties’ arguments, and for the
reason stated, I DENY the motion and LIFT the STAY. As such, I set a briefing scheduling on
both pending motions for summary judgment on liability.
I. Background
Plaintiffs Onyx Properties LLC, Emerald Properties LLC, Valley Bank and Trust, and
Paul & Shauna Naftel, are landowners in Elbert County, Colorado, who sought to divide their
respective properties into 35-acre parcels for development and sale. Plaintiffs assert class claims
against Elbert County for the taking of property rights without due process of law in violation of
their constitutional rights pursuant to 42 U.S.C. § 1983. These Plaintiffs also assert individual
claims under § 1983 for the loss of their individual property rights by Elbert County’s
enforcement of its allegedly invalid zoning regulations. Plaintiffs seek damages as well as
injunctive relief enjoining Elbert County “from any further use of their invalid Zoning
Regulations against” Plaintiffs and all other members of the public. The Rohrbachs also own
property in Elbert County, and have filed a separate complaint – which has subsequently been
consolidated with this case – in which they assert an individual § 1983 claim seeking damages
for the losses they incurred when Elbert County improperly required them to stop composting on
their property. At issue is whether the enforcement of alleged illegal zoning regulations
constitutes a violation of procedural due process.

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II. Elbert County Motion Re: Onyx’s Summary Judgment Motion
In this motion, Elbert County first argues that Plaintiff Onyx’s pending motion for
summary judgment – which seeks a liability judgment in its favor on its individual § 1983
procedural due process claim – is premature as it comes before any discovery on the merits of
Plaintiffs’ claims and before the time contemplated by the Partial Scheduling Order. As a result,
Elbert County asks that I hold briefing on Plaintiff Onyx’s summary judgment motion in
abeyance.
In support of its request, Elbert County asserts that it was the intent of the Magistrate
Judge to first litigate the issue of class certification before reaching the merits of the Plaintiff’s
claims and, thus, timing of Onyx's motion for summary judgment is “inconsistent with and
undermines the Court's case schedule.” Elbert County refers me to the Partial Scheduling Order
[Doc # 25] in which the Magistrate expressly declined to establish a schedule for discovery or
dispositive motions on the merits until after the class certification issue was resolved. Under the
heading “Other Planning or Discovery Orders” in that scheduling order, a handwritten note
indicates that:
Parties’ discovery will be limited to class certification issues only prior to a class
certification hearing to be held by the District Judge. All deadlines and
limitations herein relate to class certification only. W/in 10 days after the class
certification hearing, the parties will file a joint status report to inform the court
about the need for additional discovery. [Doc #25, page 13]
Elbert County also asserts that ruling on Onyx’s motion for summary judgment at this point in
the litigation could interpose procedural complexities into this case. It refers me to the various
motions that are currently pending in this case – including two motions in which Plaintiffs seek
to amend their complaint to expand the class definition and add a party [Docs # 30, 32]; and

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Plaintiffs’ Motion for Class Certification filed after Onyx’s motion for summary judgment was
filed. [Doc # 42]
In response, Onyx agrees that the Magistrate Judge bifurcated the discovery in this
matter, but argues there is nothing in the Partial Scheduling Order that precludes the filing of a
dispositive motion on their individual claim. See Fed. R. Civ. P. 56(a)(1)(which allows a party
to file a motion for summary judgment any time after 20 days have passed from the
commencement of the action). In addition Onyx notes, that the pending motions to amend and
the class certification motion in no way impact or change Onyx’s individual claim upon which it
is seeking summary judgment. Based on the foregoing, I agree that Elbert County’s request to
hold the briefing in abeyance on the pending summary judgment motion filed by Onyx – based
on the procedural posture of this case – should be denied.
Elbert County also asks, in the alternative, that I defer ruling on Onyx’s motion seeking
summary judgment (or deny it without prejudice) pending discovery on the merits pursuant to
Fed. R. Civ. P. 56(d). Fed. R. Civ. P. 56(d) – formerly Fed. R. Civ. P. 56(f) – provides that “[i]f
a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” See also West v. Yeaton, 2011 WL 42140, 2 (D.Colo. Jan. 6, 2011) (ruling
that there is no apparent substantive difference between the former Rule 56(f) and the current
Rule 56(d), making it appropriate to consider case law applying Rule 56(f)).
A party seeking to defer a ruling on summary judgment under Rule 56(d) must “file an
affidavit that explain[s] why facts precluding summary judgment cannot be presented.”

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Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1308 (10th Cir. 2007) (citations omitted).
This includes identifying (1) the probable facts not available, (2) why those facts cannot be
presented currently, (3) what steps have been taken to obtain these facts, and (4) how additional
time will enable the party to obtain those facts and rebut the motion for summary judgment.
Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir.2010)
(quoting Committee for First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992)).
“[T]he nonmovant also must explain how additional time will enable him to rebut movant’s
allegations of no genuine issue of fact.” Comm. for First Amendment v. Campbell, supra, 962
F.2d at 1522 (citation omitted). A party may not invoke Rule 56(d) “by simply stating that
discovery is incomplete but must ‘state with specificity how the additional material will rebut the
summary judgment motion.’” Libertarian Party v. Herrera, supra, 506 F.3d at 1308-09 (quoting
Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 987 (10th Cir. 2000)). The court
has wide discretion when ruling on a Rule 56(f) motion. Burke v. Utah Transit Auth. & Local
382, 462 F.3d 1253, 1263 (10th Cir. 2006)(quotations and citations omitted).
With its motion, Elbert County has filed an affidavit from its attorney indicating that no
discovery on the merits has yet been conducted. The affidavit then asks court to either deny
without prejudice or defer ruling on the summary judgment motion filed by Onyx “in order to
allow [it] to conduct discovery on the issue of liability” under § 1983. Specifically, the affidavit
indicates that:
The Motion for Summary Judgment is premised in part on Plaintiff Paul Naftel’s
testimony that he relied upon [Elbert County’s] representations as to the zoning
and upon his failure to understand that the [C]ounty lacked the proper zoning
map. The Plaintiffs in their initial disclosures did not produce their files related to
the land use approvals. In addition, Onyx was represented through the approval
process by an attorney as well as an applicant representative. Reviewing Onyx’s
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files as well as deposing Onyx’s representatives could very well provide evidence
that Onyx may have done its own independent research into the status of the
zoning and hence did not rely upon the [C]ounty’s staff representations for
purposes of establishing a protected property interest. . . . [T]he County also
needs to conduct factual investigation regarding what representations, if any, the
County made to Onyx regarding the uses allowed on its property; the impact, if
any, that the County’s alleged unconstitutional zoning enforcement had on their
property; and what process was available or utilized by Onyx.
The affidavit concludes that “this discovery is likely to produce facts showing that no
deprivation of a protected property interest occurred without due process.” [Doc # 44-1]
In response Onyx maintains that the questions at issue in the summary judgment ruling
are of law and, thus, discovery will not lead to evidence generating a genuine issue of material
fact. I agree.
In its motion for summary judgment, Onyx argues that it is entitled to judgment as a
matter of law on its individual claim that Elbert County violated its due process rights when it
illegally forced Onyx to re-zone its property based on zoning regulations and policies adopted
without due process of law. As such, the issue is not whether due process was violated in the
taking of property by Elbert County in the form of a vested property right – see generally
Eason v. Board of County Comm'rs of County of Boulder, 70 P.3d 600, 605 (Colo. App.
2003)(ruling that “Colorado law recognizes a protected property interest in a zoning
classification when a specifically permitted use becomes securely vested by the landowner’s
substantial actions taken in reliance, to his or her detriment, on representations and affirmative
actions by the government) – but rather whether due process was violated in the enactment and
enforcement of regulations/policy that deprived of certain uses of its land without providing
adequate process. In ruling on Elbert County’s motion to dismiss, I ruled that Plaintiffs’
procedural due process claim was not a claim that the zoning determination to an “A-1”
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classification was deficient, but rather that “due process was violated in the adoption and
enforcement of the underlying zoning laws and regulations.” [Doc # 19, page 9]
To the extent that Elbert County argues that it needs discovery to reveal possible issues
of material facts related to whether Onyx had a protectable property interest, based on the extent
of its reliance on any representations or zoning determinations made by Elbert County, I find that
this determination is – under the specific circumstances presented here – an issue of law, not
fact; specifically, whether Onyx had the right to divide its property into 35 acre parcels. See
Colo. Rev. Stat. § 30-28-101(10)(b)(“[t]he terms “subdivision” and “subdivided land”. . . shall
not apply to any division of land which creates parcels of land each of which comprises thirtyfive or more acres of land and none of which is intended for use by multiple owners”);
Pennobscot, Inc. v. Board of County Commissioners of Pitkin County, Colo., 642 P.2d 915, 919
(Colo. 1982) (ruling that § 30-28-101(10)(b) provided counties no authority to impose
subdivision regulations on these larger tracts). This question is one of law and, as such, I
conclude that there are no material facts which need discovery on this issue.
Therefore, I conclude that Elbert County has failed to met its burden under Fed. R. Civ.
P. Rule 56(d) in that it has not set forth probable facts that would raise a genuine issue of
material fact necessary to oppose Plaintiff Onyx’s Motion for Summary Judgment on its
individual claim under 42 U.S.C. § 1983. I exercise my discretion and rule that Elbert County’s
Rule 56(d) motion seeking deferral of the summary judgment motion filed by Onyx will be
denied at this time. However, in the event that issues are revealed in the briefing of the summary
judgment motion that require determination of fact, and probable conflicting facts are deemed to
be discoverable, a deferral under Rule 59(d) might be readdressed by the court.

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III. Stay of Rohrbach’s Summary Judgment Motion
Prior to the consolidation of these cases, the Rohrbachs filed a Motion for Summary
Judgment on Liability Only. [Doc #3 in 11-cv-02321-RPM] Elbert County responded by filing
a Motion to Suspend Briefing on Plaintiffs’ Motion for Summary Judgment on Liability Only,
based on the pending motions for class certification and for consolidation. [Doc #10 in 11-cv02321-RPM] In its subsequent order on the motion, the Court noted that “judicial economy and
avoidance of inconsistent results warrant a stay of this action.” As such, it ordered that “further
proceedings in this civil action, including the [D]efendant’s response to the motion for summary
judgment as to liability only are stayed until a ruling on the [P]laintiffs’ motion to consolidate.”
[Doc #12 in 11-cv-02321-RPM]
The motion to consolidate has been granted and, as such, I now lift the stay and briefing
on the Rohrbachs’ Motion for Summary Judgment on Liability Only [Doc #3 in 11-cv-02321RPM] is resumed. I note that Elbert County’s response to this motion, as scheduled below, must
address the arguments made in the Rohrbachs’ Notice of Defendant’s Failure to Respond to
Plaintiffs’ Motion for Summary Judgment and Motion for Court to Hold That Defendant Has
Waived its Right to Respond. [Doc #9 in 11-cv-02321-RPM]

ACCORDINGLY, I DENY the Defendant’s Motion to Hold Briefing in Abeyance or
Alternatively to Defer Ruling on Summary Judgment Motion. [Doc #44], and I LIFT the STAY
on the Rohrbachs’ Motion for Summary Judgment on Liability Only [Doc #3 in 11-cv-02321RPM]. I so doing, I ORDER that Elbert County has up to and including January 4, 2012, to file
responses to: 1) Plaintiffs Onyx Properties, LLC’s Motion for Summary Judgment Liability Only

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– Individual Claim [Doc # 39]; and 2) the Rohrbachs’ Motion for Summary Judgment on
Liability Only. [Doc #3 in 11-cv-02321-RPM]. Plaintiffs has up to and including January 18,
2012 to file replies thereto.

Dated: December

14 , 2011 in Denver, Colorado.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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