Hatch vs. Boulder Town Council, No. 04-4124 (10th Cir. 2006)
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F IL E D United States Court of Appeals Tenth Circuit PUBLISH December 19, 2006 U N IT E D ST A T E S C O U R T O F A PP E A L S Elisabeth A. Shumaker Clerk of Court T E N T H C IR C U IT JULIAN HATCH, doing business as Freedom From R eligion; LY N NE M ITCHELL, doing business as M atch, Plaintiffs-Appellants, v. No. 04-4124 BO ULD ER TOW N C OU NC IL; B OU LD ER PLA N N IN G C OM M ISSIO N , Defendants-Appellees. A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T FO R T H E D IST R IC T O F D IST R IC T O F U TA H (D .C . N o. 2:01-cv-71-PG C ) Submitted on the briefs: * Budge W . Call, Salt Lake City, Utah, for Plaintiffs-Appellants. Craig T. W entz of Christensen & Jensen, P.C., Salt Lake City, Utah, for Defendants-Appellees. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Before T Y M K O V IC H , PO R FILIO , and B A L D O C K , Circuit Judges. T Y M K O V IC H , Circuit Judge. Plaintiffs Julian Dean Hatch and Lynn M itchell are residents of and property owners in the town of Boulder, Utah. They filed this civil rights complaint against defendants in January 2001, alleging a plethora of constitutional violations concerning zoning, perm itting and road maintenance issues. The district court concluded that m ost of plaintiffs claim s were barred by res judicata (claim preclusion) based on prior suits filed in the federal district and U tah state courts. The court further concluded that plaintiffs rem aining claim s should be dism issed for various other reasons, including lack of ripeness, conclusory allegations, and failure to state a claim under 42 U.S.C. § 1983. Plaintiffs now appeal from the court s order denying their motion for sum m ary judgm ent and granting the defendants cross m otion for sum m ary judgm ent. 1 Faced with a thirty-eight page, verified first amended com plaint containing sixty-nine separate paragraphs of factual allegations, the district court attempted to unravel the knot by essentially dividing plaintiffs lengthy factual allegations into two pieces. First, it determ ined that the doctrine of claim preclusion barred 1 Plaintiffs filed a Rule 59 motion after judgment, which the district court denied. Their notice of appeal does not purport to appeal from the denial of their Rule 59 motion. -2- all of plaintiffs claim s that were based on facts that arose prior to final judgment in the form er actions. Second, it determ ined that the remaining claim s, which arose after final judgment in the prior actions, could be resolved on the m erits. U nfortunately, this m ethod of applying claim preclusion created certain problem s w e cannot resolve on appeal. W e m ust therefore reverse the disposition of som e of plaintiffs claim s, and remand them for further consideration. 2 O ur four-part analysis begins by describing the issues litigated in the tw o prior actions. W e then set out the applicable U tah and federal law of claim preclusion. Next, we apply that law to the claim s asserted in plaintiffs current complaint. Finally, we review the district court s analysis of the claim s it found were not precluded by the prior actions. I. Issues litigated in prior actions A . Septem ber 26, 1996 § 1983 Suit In 1996, Hatch filed a 42 U.S.C. § 1983 civil rights suit in Utah federal district court against B oulder, its mayor, town clerk, and members of its town council. His complaint charged, among other things, that in June 1995, Boulder 2 As an alternative ground for affirmance of the district court s decision, defendants argue that plaintiffs claims, arising prior to final judgment, were actually litigated in the previous actions and hence are now barred either by claim preclusion or by issue preclusion. The record, however, is insufficient for us to determine whether plaintiffs current claims were actually litigated, to the extent necessary to result in preclusion. Defendants are of course free to re-assert this argument on remand, with appropriate support. -3- enacted a business license ordinance without complying with Utah s Open and Public M eetings Act, and that his business, Freedom from Religion (FFR), which had been engaged in selling beer prior to the enactm ent of this ordinance, should have been allowed to continue selling food and beer. Hatch further alleged that the Tow n Council passed a second ordinance restricting the sale of alcoholic beverages that lim ited to two the number of new class A liquor licenses that could be issued. Hatch contended that the Town Council failed to comply with the Open and Public M eetings Act when it passed this ordinance. He also contended that on July 31, 1995, the Town Clerk approved beer license applications on behalf of other businesses, but not FFR. On August 10, 1995, the Tow n Council m et and im posed a requirement on FFR that it obtain approval from the Departm ent of Agriculture and the Health Departm ent before selling food from its prem ises. Hatch contended that this requirement was essentially a pretext to run him out of business. Eventually, on Septem ber 22, 1995, the Council issued FFR a business license, authorizing it to conduct Retail sales of food and cam ping supplies. Aplee. Supp. App., Vol. I at S-199. Hatch contended that the unjustified delay in issuing him a business license, and the lim ited nature of the license ultim ately issued, deprived FFR of its constitutionally protected property right to m aintain its business, which includes the right to sell beer. Id. at S-200. -4- Apparently, Hatch later added a claim that Boulder violated his due process rights by interfering with his business sign. 3 Hatch s claims proceeded to jury trial. 4 O n A pril 14, 1999, a jury entered a special verdict, finding that the Tow n had failed to give Hatch due process in connection with his retail business, his cam ping business, and his business of selling beer. It rejected his claim , however, that the Tow n had violated due process in connection with the m aintenance of his sign. The jury awarded Hatch a total of $86,000 in actual damages for these alleged violations. It does not appear that either party appealed from this verdict. B . July 12, 1999 Petition for R eview Hatch and M itchell were petitioners in a Petition for Review of Decision on Conditional Use Perm its and Request for Injunctive Relief, filed in Utah state court against Boulder and its Town Planning Com m ission in 1999. They requested judicial review of the conditional use permits the Boulder Town Planning Com m ission granted on February 10, 1999, to their neighbors and adjacent land owners, Sam Stout and Rhea Thom pson, for their construction business. They complained that the perm its had been granted in an arbitrary, 3 The record does not contain a copy of this amendment. 4 In addition to a claim for civil rights violation pursuant to § 1983, Hatch included claims for deprivation of property and for assault and battery against Larry Davis, husband of the Tow n Clerk, who allegedly assaulted him during a Town Council meeting. -5- capricious, and illegal m anner, including the Com m ission s failure to adopt an official m ap setting forth com m ercial districts and a plan for future developm ent. The state district court determ ined that Boulder s zoning ordinance was not arbitrary, capricious, or illegal, that the comm ercial designations in the ordinance were legal and not ambiguous, and that the Tow n had properly awarded the challenged conditional use perm its. Hatch and M itchell appealed to the Utah Court of Appeals, which reversed the district court on the validity of the zoning ordinance, finding that the Tow n had failed to present any evidence that a proper zoning m ap had accompanied the text of the zoning ordinance when it was presented to the public and to the Town Council for approval. Hatch v. Boulder Town Council, 21 P.3d 245, 248 (U tah Ct. App. 2001). 5 In light of this holding, it found plaintiffs rem aining claim s m oot. Id. at 249. II. L aw of claim preclusion A . C laim -sp litting principle Before discussing the specific elem ents of U tah and federal law of claim preclusion, we narrow our focus to the key issue in this case. Although plaintiffs attack the district court s claim preclusion analysis on a number of points, we perceive the key issue to be whether plaintiffs current complaint represents an im perm issible attem pt to split their claim s. Stone v. Dep t of Aviation, 453 F.3d 5 Plaintiffs incorrectly state in their brief that this decision was reached by the Utah Supreme Court. -6- 1271, 1278 (10th Cir. 2006) ( A plaintiff's obligation to bring all related claim s together in the same action arises under the comm on law rule of claim preclusion prohibiting the splitting of actions. ). The Restatement (Second) of Judgm ents § 24 (1982) enunciates the general rule concerning claim splitting : (1) W hen a valid and final judgm ent rendered in an action extinguishes the plaintiff s claim pursuant to the rules of m erger or bar . . . the claim extinguished includes all rights of the plaintiff to rem edies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. (2) W hat factual grouping constitutes a transaction , and what groupings constitute a series , are to be determ ined pragmatically, giving weight to such considerations as whether the facts are related in tim e, space, origin, or m otivation, whether they form a convenient trial unit, and whether their treatm ent as a unit conform s to the parties expectations or business understanding or usage. (em phasis added). The question for us, then, is whether the facts that form the basis of plaintiffs current claim s (the 2002 am ended com plaint) are part of the sam e transaction they asserted in the previous actions. This question is determ ined by the m anner in which the facts constituting the transaction are grouped. As w ill be demonstrated, the district court grouped all facts arising prior to the final judgm ents in the previous actions as a single transaction. -7- B . C hoice of preclusion law In the case of a state court judgm ent, the state law where the judgm ent was entered (here, Utah) applies. See 28 U.S.C. § 1738 (full faith & credit statute); Fox v. M aulding, 112 F.3d 453, 456 (10th Cir. 1997) ( W e must, therefore, ascertain what preclusive effect [Utah] would give its own decision before we m ay know what effect it should be given in the federal court. ) (quotation om itted). In the case of the § 1983 suit, federal law of preclusion applies. Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir. 1999). C . U tah claim preclusion law U nder U tah law : In order for claim preclusion to bar a subsequent cause of action, a plaintiff m ust satisfy three requirem ents: First, both cases m ust involve the sam e parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or m ust be one that could and should have been raised in the first action. Third, the first suit m ust have resulted in a final judgm ent on the merits . . . . All three elements m ust be present for claim preclusion to apply. M acris & Assocs., Inc. v. Neways, Inc., 16 P.3d 1214, 1219 (Utah 2000). 1. Sam e parties or their privies It is uncontested that both plaintiffs were parties to the 1999 Utah action. This element of claim preclusion analysis is therefore satisfied. -8- 2. C laim s that could and should have been raised Plaintiffs advance three reasons w hy their claim s in this action either could not or should not have been raised in the earlier, state court action. First, the suits are not the same cause of action. Second, the action for judicial review they pursued in state court does not provide for damages or the relief contemplated under § 1983; and does not provide for the other claim s asserted, such as procedural due process and the right to a meaningful hearing under federal law. Aplt. Opening Br. at 41. Third, they were not obligated to raise claim s that arose after the filing of their com plaint in the earlier action. Only plaintiffs first and third argum ents have merit and therefore lim it the application of claim preclusion to their claim s. a. Sam e cause of action [F]or the doctrine of res judicata to preclude a subsequent cause of action . . . the cause of action in the present suit m ust be identical to the one brought in the prior suit. M acris, 16 P.3d at 1221. Identity does not refer to an exact identity between the legal theory of the claim s brought in the first and second actions; rather, the question is whether there is an identity of facts and evidence between the two claim s. Id. Here, the district court was m istaken in failing to recognize the lack of identity between the facts and evidence underlying som e of the claim s raised in the prior state court action and those raised in this -9- action, a factor that should have prevented the application of claim preclusion. 6 On rem and, therefore, the district court should carefully analyze this elem ent as it pertains to each of the claim s we remand for further consideration. b. A vailability of relief Plaintiffs second argum ent, once appropriately narrowed, is easily resolved. It is essential to notice the scope of plaintiffs argum ent on appeal. They are not arguing that the limited nature of a proceeding for review of a conditional use perm it under Utah law did not perm it them to raise unrelated claim s, such as their claim s about hindrance of subdivision developm ent, denial of a beer license, being excluded from the city library, etc. They sim ply argue that their federal constitutional claims pertaining to the conditional use perm it could not have been brought in a petition for review proceeding. A lthough the statute under which plaintiffs sought judicial review, Utah Code Ann. § 10-9-1001 (subsequently renumbered as Utah Code Ann. § 10-9a-801), does not expressly provide an opportunity to raise federal constitutional claims, the Utah courts have considered and determ ined both state and federal constitutional claim s in actions for review of, or challenging, 6 Claims to which claim preclusion does not appear to apply for this reason include plaintiffs complaint about subdivision development (complaint, ¶ 10-12); their complaint about conveyance of the adjacent cul-de-sac (complaint, ¶ 62); plaintiff M itchell s complaint about licensing issues (complaint, ¶ 12-14, 63); and M itchell s complaint about exclusion from the Town library (complaint, ¶ 42). -10- m unicipal land use decisions. See, e.g., Anderson v. Provo City Corp., 108 P.3d 701, 707-09, 710 (Utah 2005) (addressing state equal protection and federal right-to-travel claims); Patterson v. Am. Fork City, 67 P.3d 466, 473-76 (U tah 2003) (considering federal equal protection and due process claim s). Plaintiffs rely specifically on Utah Code Ann. § 10-9a-801(3)(a)(ii), which states that the courts shall . . . determ ine only whether or not the decision, ordinance, or regulation is arbitrary, capricious, or illegal. (emphasis added). The district court reasoned that this language refers only to the standard of review, and does not lim it the type of ancillary, constitutional m atters that a court conducting a review of a municipal land use decision m ay consider. W e agree. c. Filing date and claim -splitting The district court found that plaintiffs could have and should have included in the Utah case all of their claim s that arose from facts that occurred prior to the resolution of the Utah state court proceeding. See Aplt. App. at 450 (em phasis added) ( To the extent[] that a few of plaintiffs federal § 1983 claim s arise from alleged facts occurring subsequent to the resolution of the state court action, such claim s are not precluded under the court s claim preclusion analysis. ). This finding, how ever, does not follow from the applicable Utah law. In M acris, 16 P.3d at 1219, the defendant argued that the plaintiff s claim s were barred by claim preclusion because they had not been included in a prior action, and the plaintiff knew of its claims against [defendant] before the trial in -11- M acris I began and should therefore have amended its complaint in that action and asserted the claim s now pursued in the present action. Id. (em phasis in original). The Utah Supreme Court rejected this argum ent, holding instead that a plaintiff need only include claim s in a suit for res judicata purposes if the plaintiff was aware of the facts upon which the later claim s were based at the tim e the first suit was filed. Id. at 1220 (em phasis added). Plaintiffs filed their Utah state court action on July 12, 1999. Thus, any causes of action based on facts that occurred after that date need not have been included in the case for claim -preclusion purposes. This differs from the district court s conclusion, which would have barred any claim s that arose prior to Novem ber 10, 1999, when the state court ruled in favor of plaintiffs on their claim s. Although this is a difference of only four m onths, it is a difference required under U tah law . 3. Final judgm ent on the m erits Plaintiffs also contend that the prior state proceeding did not result in a final judgm ent on the merits of their claim s. The Utah Court of Appeals, after ruling in plaintiffs favor on the invalidity of Boulder s zoning ordinance, stated [t]he ordinance s invalidity renders m oot [plaintiffs ] other claim s. Hatch, 21 P.3d at 249. Defendants argue that this is in fact a judgm ent on the m erits, as to the invalidity of the zoning ordinance claim . Plaintiffs argue, however, that since the prior judgm ent did not adjudicate their other claim s on the m erits -12- (it m erely found them m oot), the judgm ent cannot have a preclusive effect on the claims that the court found m oot, or any other claims they might have raised. Had the state court resolved plaintiffs claim s entirely on m ootness grounds, there would be no final judgm ent from which claim preclusion could result, because Utah follows the general rule that a dism issal for lack of jurisdiction does not bar another action by the plaintiff on the sam e claim . Snyder v. M urray City Corp., 73 P.3d 325, 332-33 (Utah 2003); Gibson v. Utah State Teachers Ret. Bd., 105 P.2d 353, 355 (U tah 1940). See also Restatement (Second) of Judgm ents § 20(1)(a). A final judgm ent that found some claim s m oot, however, and resolved at least one of them on the merits, is different. The final judgm ent here, on one of plaintiffs claims, satisfied the requirem ent of a final judgm ent for claim -splitting rules. W e believe the Utah courts w ould conclude that the judgm ent had a preclusive effect as to any claim s that should have been brought, but were not. 4. C onclusion The disposition of the prior state court action bars Hatch and M itchell from bringing any claim involving identical facts or evidence that arose prior to the filing of their Utah state court action on July 12, 1999. D . Federal law of claim preclusion If the judgm ent reached in the prior federal suit only barred claim s that accrued prior to the filing of Hatch s September 1996 complaint, it would not -13- preclude any of plaintiffs claim s. Since the district court broadly determ ined that the judgm ent also barred any claim s that could have been raised prior to the April 1999 final judgment in the prior suit, however, we discuss the relevant law , to perm it the district court to apply the law m ore narrowly on rem and. Under federal law, the application of claim preclusion requires that three elements be satisfied: (1) a judgm ent 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. Yapp, 186 F.3d at 1226. The district court correctly noted that the prior federal court judgm ent involved only Hatch and therefore did not preclude any claim s by M itchell in this case. The only m eritorious argum ent that Hatch makes pertains to the third element: whether the cause of action sought to be precluded is identical with that raised in the prior action. Hatch makes two argum ents on this point. First, he argues that [t]he actions alleged by Hatch in this case could not have been raised in Hatch I [the § 1983 suit], because they occurred after September 1996 when Hatch I was filed. A plt. Opening Br. at 38. Second, he argues that the only issues actually presented in the first case were those involving Hatch s business license for beer sales and cam ping in 1995, and the destruction of his sign in 1995. In other words, Hatch asserts that the causes of action now advanced are not identical with -14- those that were litigated in the prior action, and that therefore claim preclusion should not apply. 1. A rising after Septem ber 1996 filing date This circuit has adopted the transactional test contained in the Restatement (Second) of Judgm ents § 24. Yapp, 186 F.3d at 1227. The transactional approach 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 judgm ent, will be precluded. Id. W hat constitutes the same transaction or series of transactions is to be determ ined pragmatically, giving weight to such considerations as whether the facts are related in tim e, space, origin, or m otivation, whether they form a convenient trial unit, and whether their treatm ent as a unit conform s to the parties expectations or business understanding or usage. Id. (quoting Restatem ent § 24). Just as in the case of Utah state preclusion law, a question is presented under federal claim preclusion law about the cutoff date for Hatch s responsibility to add all available claim s to his prior complaint. The district court concluded that the A pril 14, 1999, judgm ent in the prior § 1983 suit precluded any claim s based on facts that were available to Hatch before that date. Aplt. App. at 444 ( To the extent that the complaint in this case raises federal claim s by Hatch based on facts occurring prior to the conclusion of his previous § 1983 action, such claim s are dism issed with prejudice. (emphasis added)). The question, -15- however, is not whether the claim s raised in Hatch s new complaint are based on facts that occurred prior to the conclusion of his previous action. Instead, it is whether the new claim s arose out of the same transaction as the claim s in the prior action, and should therefore have been included in the prior action. Under the transactional test, a claim should not be precluded m erely because it is based on facts that arose prior to the entry of judgm ent in the previous action. See M itchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir. 2000) (stating in dicta we agree with those courts holding the doctrine of claim preclusion does not necessarily bar plaintiffs from litigating claim s based on conduct that occurred after the initial com plaint was filed in the previous suit.). The filing of the plaintiff s complaint frames the scope of litigation, establishing a transactional nexus into which facts and claim s are fitted or excluded for purposes of claim preclusion. New claims, arising after the complaint has been filed, but before judgm ent, m ay be excluded from this transactional nexus, and thus be litigated in a subsequent action. As the Second Circuit has explained: For purposes of res judicata, the scope of litigation is framed by the complaint [in the prior action] at the tim e it is filed. The res judicata doctrine does not apply to new rights acquired during the action which might have been, but which were not, litigated. Although a plaintiff may seek leave to file a supplem ental pleading to assert a new claim based on actionable conduct which the defendant engaged in after a lawsuit is com m enced, he is not required to do so. -16- Computer Assocs. Int l, Inc. v. Altai, Inc., 126 F.3d 365, 369-70 (1997) (citations and quotation om itted). See also M itchell, 218 F.3d at 1202-03 (suggesting, in dicta, that this court would follow Second Circuit s approach; and collecting cases). 7 See also, e.g., Rawe v. Liberty M ut. Fire Ins. Co., 462 F.3d 521, 530 (6th Cir. 2006) (following m ajority rule that the opportunity to file a supplemental complaint [to allege ongoing alleged wrongdoing] is not an obligation ); 18 Charles Alan W right, Arthur R. M iller, & Edward H. Cooper, Federal Practice & Procedure § 4409, at 213 (2d ed. 2002) (sam e). This does not mean, however, that a plaintiff can avoid supplem enting his com plaint with facts that are part of the same transaction asserted in the com plaint, in the hope of bringing a new action arising out of the sam e transaction on som e later occasion. Under the transactional test, a new action will be permitted only where it raises new and independent claim s, not part of the previous transaction, based on the new facts. See Storey v. Cello Holdings, LLC, 347 F.3d 370, 384 (2d Cir. 2003) ( W here the facts that have accumulated after the first action are enough on their own to sustain the second action, the new facts clearly constitute a new claim , and the second action is not barred by 7 Hatch s lack of any obligation to supplement his complaint with new and independent claims based on facts accruing after the complaint was filed should be distinguished from his duty to supplement with claims arising from the same transaction that matured (due to completion of an administrative process, for example) after the filing of his complaint. See Stone, 453 F.3d at 1278-79. -17- res judicata. ) (emphasis added). 8 Thus, any claim s that Hatch now asserts that are part of the same transaction asserted in his previous complaint should be precluded, while new and independent claim s m ay go forward. W e further note that even if H atch has raised a new and independent claim , this claim could still be precluded, if it falls under one of several exceptions to the rule that only claims related to the existing transaction are precluded. Such exceptions arise, for example, where the judgment entered in the prior action (1) incorporated a settlement intended to govern future, related transactions betw een the parties, see 18 W right, M iller & Cooper, Federal Practice & Procedure § 4409, at 220; (2) resolved claims for declaratory or injunctive relief dealing with conduct persisting through trial or into the future, see id. at 221; or where (3) the object of the first proceeding was to establish the legality of the continuing conduct into the future, id. at 232; see also M onahan v. N.Y. City Dep t of Corr., 214 F.3d 275, 288-89 (2d Cir. 2000). 2. Identity w ith previous causes of action 8 As a leading commentator explains, [a] subsequent action that simply alleges new facts in support of claims asserted in a prior action will usually not avoid application of the claim preclusion doctrine. However, if such [new] facts in themselves establish independent grounds for a claim against the defendants in the previous action, claim preclusion does not apply. See 18 James W illiam M oore, M oore s Federal Practice § 131.22[1], at 131-55 (3d ed. 2006) (emphasis added). -18- Hatch s second argum ent, that his new causes of action are not identical to those previously litigated, is also governed by the transactional test. The causes of action need not be identical in the sense that they raise the sam e claim s based on the same facts. All that is required is that they arise out of the same transaction, or series of connected transactions as [the] previous suit. Yapp, 186 F.3d at 1227. This also is a matter for the district court to resolve on remand. 3. C onclusion On remand, the district court should therefore consider whether the facts on which Hatch bases his new claim s are part of the sam e transaction as those asserted in his previous complaint, or whether they give rise independently to a new claim . If the new claim is independent, the district court should consider whether any of the above-m entioned exceptions applies to the prior judgm ent in favor of Hatch. If the claim s are not part of the same transaction and if no exception applies, then only those claim s that accrued prior to the filing of Hatch s complaint, in September 1996, should be considered precluded in the current action by the prior § 1983 suit. III. A pplication W e review the district court s application of the substantive law of claim preclusion de novo. W ilkes v. W yo. Dep t of Employment, 314 F.3d 501, 503 (10th Cir. 2003). The court concluded that plaintiffs were not precluded from -19- bringing claim s based on the factual allegations contained in paragraphs 57-61 and 66-69 of their complaint. It further concluded that plaintiffs claim s based on the remaining paragraphs of their complaint were barred by claim preclusion principles. W e conclude that the following claim s were precluded by the judgm ent reached in the prior state action, filed in July 1999: A . Land U se O rdinance (com plaint ¶ 14-19; 22; 24-30; 49; 51; 54-61; 66) Plaintiffs contend that defendants illegally passed an unconstitutional land use ordinance (LUO) to restrict their use and enjoym ent of their properties, and enforced the ordinance in an arbitrary and capricious m anner. Specifically, plaintiffs com plain that the LUO, adopted M ay 29, 1998, designates their properties (containing existing com m ercial developm ent) as residential areas, restricted to single family houses. They claim that the LU O does not perm it them to obtain a conditional use perm it for comm ercial use, does not allow any variances, and contains no provision for appeal. Finally, they assert that there is no actual, designated comm ercial zone in the town of Boulder to which they can relocate their businesses. Plaintiffs also assert that the M ay 1998 LU O was defective (among other reasons) because it was not accom panied by a map. They complain that the Boulder Planning Com m ission m ade changes to the LU O, without proper notice to plaintiffs or to the public. They further complain that they were not perm itted -20- to appeal to the Board of Adjustm ent from decisions m ade at two November 1998 Town Council hearings that m odified the LUO. Finally, plaintiffs contend that on M arch 8, 2000, the Tow n adopted a new LUO, which states that no actual Com m ercial zone physically exists, Aplt. App. at 35, and that any comm ercial developm ent would require a conditional use perm it. They claim that this effectively foreclosed their ability to develop their properties, because no conditional use perm its are perm itted in their zone for comm ercial use, and because non-conform ing uses are no longer perm itted under the LUO. A m ajor portion of this claim is precluded by plaintiffs prior state court action. Plaintiffs should have raised their existing zoning issues with Boulder at the same tim e as they raised their complaints about the issuance of conditional use perm its. Their complaint about the perm its in 1999 rested on the same types of assertions of illegalities by the Town that they com plain of now. The only exception appears to involve the Tow n s actions in M arch 2000, concerning the revised LU O, which could not have been raised in the prior action. B . G eneral Plan M ap (com plaint ¶ 16-19; 22; 47) Boulder adopted a General Plan in Decem ber 1997, using an existing use m ap that had been designated for official use by the Tow n in connection with the Plan. Plaintiffs contend that the designation of this m ap violated U tah statutes. Plaintiff M itchell complains that she attended a Boulder Planning Com m ission M eeting on January 22, 1998, at which she discovered that the -21- General Plan M ap had been colored in showing existing com m ercial properties. Plaintiffs properties, however, had not been colored in as existing com m ercial properties. On January 28, 1998, plaintiffs m ade a request to purchase a copy of the General Plan Existing Use M ap. Boulder responded on February 10, 1998, stating that the m ap would need to be copied, but that this w ould be difficult because it was a large map. Plaintiffs sent letters to various defendants on M arch 3, M arch 15, and M ay 27, 1998, concerning the m ap problem s and the failure to renew their business licenses. These letters were not answered. Plaintiffs state that at the February 10, 1999, Planning Com m ission m eeting, the Com m ission reviewed a different m ap, also known as the Boulder Town Existing Land Use M ap, created by the Five County Governm ent Association in January 1999. This m ap showed plaintiffs properties as existing com m ercial use. The Com m ission, however, refused to adopt this m ap because the Town Council stated it w as incorrect. Plaintiffs General Plan M ap claim s are precluded by the prior state court action. This is true for the same reasons we have stated in connection with the new LUO claim s. The General Plan M ap allegations could have and should have been raised at the same tim e as the conditional use perm it claim s in their prior state court action, filed in July 1999. -22- C . Boulder Excavating C om pany (com plaint ¶ 31-41; 43-46; 50; 52; 65; 67-68) Plaintiffs complain that since September 1998, Boulder has perm itted Boulder Excavating Com pany (BEC), a heavy construction business with buildings and a storage yard, to be located next to plaintiffs property in the m edium -density residential district, notwithstanding the Tow n Council s refusal to designate M itchell s property as existing com m ercial on the General Plan m ap. Plaintiffs also com plain that BEC was permitted to erect business signs, notwithstanding a lack of sign perm its, and was granted a business license in Novem ber 1998, notwithstanding the lack of a conditional use perm it. On February 10, 1999, the Planning Com m ission granted conditional use perm its to BEC. Plaintiffs assert that the Com m ission did not fully address their issues, and that the few lim itations placed on the perm it have not yet been im plemented. Plaintiffs filed an appeal from the grant of the perm its with the Town Clerk. They com plain that the Com m ission perm itted BEC to continue its operations even though their appeal was pending. They further contend that although they filed a governm ent records request for the perm its, they did not receive copies of the perm its until after the appeal period had expired. Plaintiffs state that when they received the perm its, they discovered that Boulder had waived item s required by the LUO, without any discussion at the m eetings, effectively sandbagging their appeal. -23- On June 1, 1999, Boulder m ailed plaintiffs notice of a Tow n m eeting set for the next day, at which their appeal of BEC s conditional use perm it would be discussed. Plaintiffs were out of town, did not know that their appeal would be discussed, and were unable to attend the meeting. BEC s attorney was perm itted to speak about the appeal, in plaintiffs absence. Plaintiffs were perm itted to tell their side of the story at a June 17, 1999 Town m eeting, at which BEC s attorney was not present. They complain, however, that copies of the LU O, the zoning m ap, and the General Plan existing use m ap w ere not available at the m eeting. The Tow n Council denied plaintiffs appeal and upheld the Planning Com m ission s decision to issue BEC conditional use perm its. Plaintiffs com plain that on July 14, 1999, BEC filed a building perm it application to construct a building to house a com pany backhoe and other equipm ent. They contend that the perm it application was defective because it was not properly filled out for a comm ercial building, but that the Tow n Building Official nevertheless allowed the construction to go forward. They also com plain that the building was built in a public right of way blocking the street leading to the M itchell property. Plaintiffs contend that the Tow n, knowing that their LUO had been declared unconstitutional by the Utah Supreme Court and that a new LUO was about to be passed, contacted BEC and obtained applications from them for a -24- wide variety of businesses, including an RV park, lodging, cabins, tent sites, a gift shop, an arcade, a swim m ing pool, a com m ercial greenhouse, and a hog farm . Plaintiffs contend that these uses are inconsistent with the General Plan and the LU O . The applications w ere accepted in late February 2001, and the Town passed a temporary LU O on February 28, 2001. Plaintiffs contend that the Town violated Utah law by approving these applications, when a tem porary LUO is designed only to preserve the status quo. Nearly all of this claim is precluded, because it is essentially identical to the claim plaintiffs previously litigated in state court, or because it involves allegations that could have and should have been m ade in the previous action. The only exception appears to be the allegations involving the July 14, 1999 perm it applications and other perm it applications approved in February 2001, which could not have been raised in the previous action. D . R em aining claim s The remaining claim s contained in plaintiffs complaint do not appear, on the record before us, to be subject to claim preclusion. 9 This is true either to the 9 These claims include, but may not be limited to, the following: Hindrance of subdivision development (complaint ¶ 10-12); Conveyance of adjacent cul-de-sac (complaint ¶ 62); Denial of business license applications (complaint ¶ 12-14; 63); Boulder business brochure (complaint ¶ 20); Sign ordinance violations (complaint ¶ 23); (continued...) -25- extent they arose after the filing of the complaint in the previous actions, or because there is not a sufficient factual nexus between those claim s and the previous actions that the claim s should have been brought in the prior actions. It m ay be, however, that the district court would conclude otherwise after careful application of the rules set forth in this opinion. It m ay also be true that these claim s actually were litigated in either or both of the previous actions, thus precluding either Hatch or both plaintiffs from bringing them now. If defendants can establish this with appropriate evidence, these claim s would also be precluded. Additionally, defendants m ay also have other defenses that the district court did not reach as to these claim s, such as the statute of lim itations, or plaintiffs failure to state a claim for constitutional violations. IV . A nalysis of non-precluded claim s The district court determ ined that the allegations contained in nine paragraphs of plaintiffs complaint (paragraphs 57-61 and 66-69) were not precluded by either of the prior suits. The court granted sum m ary judgm ent to the defendants on these allegations, however, finding that they were in reality, local 9 (...continued) C omplaints about obtaining town records, and hours of operation of tow n buildings, to the extent arising after plaintiffs complaint in prior litigation; and M itchell s exclusion from tow n library (complaint ¶ 42). -26- land disputes which are better reviewed under state law rather than § 1983 claim s. Aplt. A pp. at 452. W e review the district court s grant of summary judgment de novo, applying the same legal standard that should have been used by the district court. Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (quotation and alteration omitted). Summary judgment is appropriate if the pleadings, depositions, answ ers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A . Paragraphs 57 to 61 Plaintiffs contend that they attem pted on m any occasions, from January 1998 forw ard, to obtain a copy of the G eneral Plan M ap. They claim they were finally provided a copy in February 2000. They assert, however, that this m ap is flawed and inaccurate and should not be viewed as an appropriate zoning m ap for the LU O. They further assert that defendants have failed to m ark their properties in red on the General Plan map; that defendants clarified the LU O after claim ing that it was already clear during the course of the prior litigation brought by plaintiffs; that Boulder has im properly classified their property as high-density residential; and that this zoning classification prohibits them from applying for -27- comm ercial conditional use perm its. They further assert that without a designated com m ercial zone in the town, they cannot relocate their businesses. W e agree with the district court s analysis. These claim s should be exhausted administratively and/or pursued through appropriate zoning appeals and other m easures, rather than being brought initially as § 1983 claims. Plaintiffs also failed to show that they attem pted to apply for a conditional use perm it. Thus, their claim s appear to be unripe and/or premature. B . Paragraphs 66 through 69 In these paragraphs of their first amended com plaint, plaintiffs assert that after the Utah Court of Appeals ruled that the existing LUO was illegal, Boulder passed a temporary LUO. They assert that prior to passage of the new LUO, the Town contacted BEC and the Stouts and accepted business license applications from them for a wide variety of businesses, in order to grandfather these businesses in before the new LUO was in place. Plaintiffs further assert that the Town subverted the purpose of a temporary LUO, which is to preserve the status quo, by issuing conditional use perm its under the emergency ordinance, and by deciding that conditional use perm its provided under the form er LUO were still valid. The district court found that these allegations were conclusory and did not state a claim for relief under § 1983. W hen asked at his deposition whether he had any specific knowledge of Boulder s having encouraged BEC and Stout to -28- file the applications, Hatch adm itted that he did not. Aplee. Supp. App., Vol. I at S-74 (depo. p. 140). Similarly, M itchell denied any personal knowledge that it was Boulder that urged the Stouts to file the applications. Id. at S-133, 134 (depo. pp. 136-37). W e agree with the district court that sum m ary judgm ent was properly granted as to these claim s. The judgm ent of the district court is A FFIRM ED in part, REVERSED in part, and REM ANDED for further proceedings in accordance with this opinion. -29-
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