Bruce v. Ogden City Corporation

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 1, 2023
• Docket: 22-4114
• Status: Unpublished

Opinion

Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 1, 2023 _________________________________ Christopher M. Wolpert Clerk of Court DOUGLAS BRUCE, an individual,

Plaintiff - Appellant,

v. No. 22-4114 (D.C. No. 1:20-CV-00034-DBB) OGDEN CITY CORPORATION, an (D. Utah) incorporated city in the State of Utah; MICHAEL P. CALDWELL, in his official capacity as the Mayor of Ogden City Corporation,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, BRISCOE, and McHUGH, Circuit Judges. _________________________________

Plaintiff Douglas Bruce is a Colorado resident who owns a tract of land within

the city limits of Ogden, Utah (the City), that contains two duplexes and one cottage.

In early 2020, the City’s building official directed Bruce to rehabilitate or demolish

one of the buildings on the property that had been damaged by a fire in 2018. Bruce

failed to respond to that directive. The building official then petitioned the City’s

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 2

mayor to issue a demolition order. Following a hearing, the mayor ordered the

building to be demolished at Bruce’s expense.

Bruce responded to the demolition order by filing this action against the City

and its mayor. Bruce’s complaint included a Fifth Amendment takings claim, a

procedural due process claim, and a substantive due process claim, all asserted

pursuant to 42 U.S.C. § 1983, as well as a state law tort claim. The district court

granted summary judgment in favor of defendants on all of the claims. Bruce now

appeals the district court’s grant of summary judgment in favor of the City.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the

district court.

I

Factual background

a) Bruce’s Property in Ogden

Bruce, a Colorado resident, has owned a tract of land (the Property) in the City

since 1983. The Property contains three residential buildings—two duplexes and one

cottage—which together contain a total of five residential living spaces. The

Property also has two street addresses: 3166 Grant Avenue and 3172 Grant Avenue.

The building assigned the address of 3166 Grant Avenue is a side-by-side duplex

with two residential living spaces. The buildings assigned the address of 3172 Grant

Avenue include a side-by-side duplex with two residential living spaces, and a two-

bedroom cottage that is located in the rear of the property. The five residential

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spaces on the Property have a combined total of five kitchens, five bathrooms, five

gas meters, five electric meters, and three water meters.

The Property is treated as one tax parcel.

b) Zoning history of the Property

The three buildings on the Property were built in approximately 1907, prior to

any zoning by the City.

The City first implemented zoning regulations in 1951. At that time, the

Property was zoned as “R-5,” which permitted the number and types of structures

that exist on the Property. Aplt. App., Vol. 2 at 14–15.

In 1984, the area in which the Property is located was rezoned as “R-2A.” Id.

at 15. R-2A zones generally “allow[ed] single family and duplex-type development,”

as well as “subdivisions for senior housing and . . . other typical accessory residential

uses such as churches, schools, [and] public facilities.” Id. at 96. City officials

deemed Bruce’s property nonconforming because the number of structures on the

property exceeded the density limits of the new zone. Id. at 105. The City, however,

undertook no enforcement measures against the Property during the time that the

Property was zoned as R-2A. Id.

According to City records, R-2 zoning areas “[t]raditionally . . . had more

single family homes than duplexes.” Id., Vol. 1 at 65. “This allowed [for] the

creation of neighborhoods with a good mixture of housing styles and market ranges.”

Id. Over time, however, new development in R-2 zoning areas came to be dominated

by “duplex only style neighborhoods.” Id. Further, owners of new duplexes

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typically occupied only a small percentage of those duplexes. Id. at 75. City

officials considered “[t]his type of land use [a]s eliminating” the City’s “ability to

provide different market levels of housing” and instead “create[ed] a starter home

only type of community.” Id. at 65. City officials also considered “[t]his [to be]

detrimental to neighborhood stability because” such neighborhoods were “always in

transition,” which in turn impacted local schools. Id. at 155. In addition, city

officials expressed concern that “[t]his . . . threaten[ed] to create areas of future slum

and blight.” Id. at 88.

These trends in the R-2 zoning areas led the City, on July 18, 2000, to adopt

Ordinance No. 2000-44. That ordinance prohibited the development of two-family

dwellings, i.e., duplexes, within all existing two-family zones, including zone R-2A,

from July 18, 2000, to January 18, 2001, so that the City could review and consider

the downzoning of all or a portion of the R-2 zones to single-family zone

classification.

On January 16, 2001, after lengthy consideration, public notice, 1 and public

input, the City adopted Ordinance No. 2000-73 (the Ordinance). The Ordinance

amended the City’s zoning map and, in relevant part, reclassified the R-2A two-

1 The public notice took two forms. First, the city “mail[ed] a letter or postcard to each individual property owner, to each tenant of property within [the] area being considered for a zone change, notifying them of the meeting[s], notifying them of staff to contact if they have questions about it, and also notifying them that they c[ould] either attend the meeting[s] or send . . . letter[s] regarding their concerns.” Aplt. App., Vol. 2 at 92, 171. Second, the City placed a notice in the local newspaper informing the public of any upcoming meetings at which the issue would be discussed. Id. at 92. 4 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 5

family residential zones as “R-1-5,” meaning single-family residential. Id. at 49.

The Ordinance stated, however, that “legally established duplexes, currently located

in the areas subject to rezoning, should not be treated as non-conforming uses and

that such uses, if allowed to continue as legal confirming uses, will not have a

significant impact on the goals for rezoning.” Id. Consistent with this statement, the

Ordinance resulted in the following provision being added to the City’s code: “Any

two-family dwelling or duplex that was in legal existence prior to January 16, 2001,

shall be considered legal conforming.” 2 Id., Vol. 2 at 5, 28.

It is undisputed that Bruce did not judicially challenge the Ordinance at the

time of its adoption. It is also undisputed that the City complied with all applicable

state laws and local regulations in adopting the Ordinance.

c) The Property’s history of noncompliance with City codes

On or about March 7, 2005, Greg Montgomery, the City’s Manager of Current

Planning, issued a certificate of noncompliance regarding the Property. The

certificate stated that the Property was inspected on February 15, 2005, and that

“[t]he following conditions and/or use of the building and/or premises render[ed] the

property in violation of Ogden City Ordinances”: “Having a group dwelling (three

buildings with dwelling units) on a lot that allows only one dwelling unit. Approval

must be obtained to continue a use as a group dwelling.” Id., Vol. 1 at 238.

2 This provision did not operate to render Bruce’s Property as a whole legal conforming because the number of structures on the Property exceeded the density limits that existed both before and after passage of the 2001 Ordinance. 5 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 6

Beginning in late January of 2009, the City increased its efforts to enforce

ordinance violations at the Property. On January 27, 2009, a City code enforcement

officer visited the Property and notified Bruce that the Property was in violation of

Ordinance 12-4-2 due to the presence of waste materials or junk on the Property. On

February 10, 2009, a City code enforcement officer again visited the Property and

advised Bruce that the Property was in violation of Ordinance 12-4-2 due to the

presence of waste materials or junk on the Property. The City also advised Bruce on

that date that “[d]ocuments still ha[d] not been provided” by him “for a legal

Nonconforming use” of the Property “with the down zone from R-2 to R-1-5.” Id. at

242. On March 4, 2009, a City code enforcement officer visited the Property and

again advised Bruce of the waste and nonconforming use issues. The City noted that

because notice of nonconformance “was given in 2004,” some of “the rights were

lost,” but that it was aware “that the south duplex has been occupied and may have

some rights.” Id. at 243. The City advised Bruce that it was up to him “to go

through the approval process” for a nonconforming use, and it advised him of who to

contact in the City’s planning department. Id.

According to Bruce, at some point in 2009, the city mailed him a notice

notifying him that the Property had been downzoned to single-family residential (the

2009 Notice). Bruce alleges that, after receiving this 2009 Notice, he attempted to

file an administrative appeal. Bruce alleges that the City ignored his appeal and

ordered that the two units in the duplex at 3166 Grant Avenue and the unit in the rear

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of 3172 Grant Avenue (the cottage) remain unoccupied indefinitely. Bruce also

alleges that the City instructed him to board up those units.

City code enforcement officers conducted seventeen additional inspections of

the Property between April 13, 2009, and May 7, 2010. Following each of those

visits, the City sent notices to Bruce advising him of the Property’s nonconformance

with zone R-1-5, encouraging him to utilize the City’s approval process for

nonconforming uses, and asking him to advise the City of his plans for the Property.

The City also issued six citations to Bruce in 2009 due to ordinance violations at the

Property.

Bruce met with Greg Montgomery, the City’s Planning Manager, in early May

2010. Following the meeting, Montgomery sent a letter to Bruce noting, in relevant

part, (a) that the City mailed notices to property owners prior to the enactment of the

Ordinance, (b) how the process of applying for a nonconforming use certificate

works, and (c) emphasizing that a nonconforming certificate can be lost or revoked.

On eleven occasions between July 1, 2015, and November 14, 2019, the City’s

Code Services Department “sent abatement crews to secure the [P]roperty, remove

discarded junk and debris from the yard, and/or cut the weeds.” Id. at 268.

Beginning on June 2, 2015, the City sent sixteen Notices of Violation, fourteen

Citations, and eleven Abatement Citations to Bruce regarding the Property.

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d) Bruce’s failure to establish the legal existence of a noncomplying structure and/or a nonconforming use

Utah law provides that “a nonconforming use or noncomplying structure may

be continued by the present or future property owner.” Utah Code Ann.

§ 10-9a-511(1)(a). Utah law also, however, affords municipalities with substantial

regulatory authority over nonconforming uses. More specifically, Utah law provides

that municipalities “may provide for”:

(a) the establishment, restoration, reconstruction, extension, alteration, expansion, or substitution of nonconforming uses upon the terms and conditions set forth in the land use ordinance; (b) the termination of all nonconforming uses, except billboards, by providing a formula establishing a reasonable time period during which the owner can recover or amortize the amount of his investment in the nonconforming use, if any; and (c) the termination of a nonconforming use due to its abandonment.

Id. § 10-9a-511(2). In addition, Utah law provides that “[u]nless [a] municipality

establishes, by ordinance, a uniform presumption of legal existence for

nonconforming uses, the property owner shall have the burden of establishing the

legal existence of a noncomplying structure or nonconforming use through

substantial evidence.” Id. § 10-9a-511(4)(a).

Consistent with Utah law, the City’s Municipal Code “allows for the

preservation of nonconforming uses of land, provided that the use legally existed

before its current land use designation and has been continuously maintained since

the time of the adoption of the land use ordinance changing the permitted use.” Aplt.

App., Vol. 1 at 27 (citing City Municipal Code § 15-6-3). The City issues

nonconforming certificates and in turn records those in the county records.

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It is undisputed that the Property was noncompliant with City ordinances

because multiple dwelling units were located on the Property, which was zoned for

only one dwelling unit. Id. at 26, 238. As noted, the City repeatedly urged Bruce to

seek a certificate for a nonconforming use for the Property. 3 Bruce, however, neither

sought nor received a certificate for any nonconforming use for the Property.

e) The demolition order

On June 25, 2018, there was a fire in the building on the north side of the

Property, i.e., the side-by-side duplex located at 3166 Grant Avenue. This building

“ha[d] been vacant for an extended period of time,” “lack[ed] sanitation facilities,”

and had been the subject of “38 calls” to the police. Id. at 267. “The fire damaged

the exterior south wall window header and framing, and the fascia on the south side.”

Id. at 266. “The interior structure was [also] damaged from the fire, including

damage to the door framing and headers as well as wall framing . . . and coverings,”

which “compromised the structural integrity of the building.” Id. “The interior

ceiling . . . partially collapsed from fire damage and firefighting efforts.” Id. at 266–

267.

On January 8, 2020, Steve Patrick, the City’s Building Official, “declared the

structure on the north side of the [Property] . . . to be a dangerous building and a

3 According to the record, “a nonconformance certificate is to help people understand what their rights are, that the nonconformity exists, and that it can be lost through certain neglect items.” Aplt. App., Vol. 2 at 129. In addition, “the certificate allows them to make sure that if they’re selling the property, the new buyer can know that it does have those rights,” i.e., “that the city actually recognizes those rights and it specifies what those rights are.” Id. 9 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 10

public nuisance” under the City’s ordinances. Id. at 265–266. On or about January

9, 2020, Patrick sent a letter to Bruce that was titled “NOTICE OF DANGEROUS

BUILDING AND ORDER TO ABATE.” Id. at 222. The letter listed the “Property

Address” as “3166 Grant Avenue.” Id. The letter stated, under the title

“DESCRIPTION”:

That certain parcel with three separate structures. The structures are non-complying group dwellings, and have not been permitted by the city. The structure subject to this notice and order, henceforth referred to as “the structure” is located on the north side of the parcel with address number 3166. The structure being a wood framed two story structure facing west to the street, with wood siding, and two entrances on the west side, and an attached wood framed covered porch, and an entrance on the east and north side of the house, with a cement foundation, and cement cellar. The second structure, which is not subject to this notice and order, being a wood framed two story structure with address number 3172 located on the south side of the lot, with wood siding, and two entrances on the west side, and an attached wood framed covered porch, and an entrance on the east and north side of the house, with a cement foundation, and cement cellar. The third structure, which is not subject to this notice and order, located on the east side of the lot, being one level, with no visible house number, with an entrance on the south side of the building, with an attached lean to shed on the east side of the property, the parcel is located at 3166 Grant Ave., Ogden City, Weber County, Utah[.]

***

You, and each of you, are hereby notified that pursuant to the provisions of Section 16-8A-7[] of the Code for the Abatement of Dangerous Buildings, the undersigned, as the officer charged with the administration and enforcement of said Ordinance, has caused to be inspected the buildings herein above described and has determined that said buildings are a Dangerous Buildings within terms of Ordinance 16-8A-6 A & B and particularly by reason of the following, to wit:

16-8A-6: B4. Whenever any portion thereof has been damaged by fire, earthquake, wind, flood, or by any other cause, to such an extent that the natural strength or stability thereof is materially less than it was before

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such catastrophe and is less than the minimum requirements of the Building Code for new buildings or similar structure, purpose or location.

On June 25, 2018, there was a fire in the structure. The fire damaged the exterior south wall window header and framing, and the fascia on the south side “Figure 1”. The interior structure was damaged from the fire. The fire damage to the door framing and headers as well as wall framing and coverings have compromised the structural integrity of the building “Figure 2”. The interior ceiling has collapsed from fire damage and firefighting efforts “Figure 3”.

16-8A-6: B12. Whenever the building or structure has been so damaged by fire, wind, earthquake or flood, or has become so dilapidated or deteriorated it has become: a) an attractive nuisance to children; b) a harbor for vagrants, criminals or immoral persons; or as to c) enable persons to resort thereto for the purpose of committing unlawful or immoral acts.

The structure has been vacant for some time and lacks sanitation facilities. The water service has been off since May 21, 2003. Individuals have entered and illegally resided in the structure on numerous occasions. Since March, 2017, Ogden City Police Department has responded to 38 calls to the property “Figure 4”.

16-8A-6: B19. Whenever any building or structure, or portion thereof, is vacant or open and: a. One or more of the doors, windows, or other openings are missing or broken; b. One or more of the doors, windows, or other openings are boarded up or secured by any means other than conventional methods used in the design of the building or permitted for new type, unless boarded in accordance with an approved vacant building plan pursuant to article B of this chapter; or c. In such condition that it constitutes an attractive nuisance or hazard to the public.

The doors and windows of the structure have been broken down numerous times. The owner does not respond to requests from Ogden City Code Enforcement to close and secure the structure, remove junk from the yard, and remove people living in the

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structure. These actions constitute an attractive nuisance and hazard to the public.

On the following dates Ogden City Code Services sent abatement crews to secure the property, remove discarded junk and debris from the yard, and/or cut the weeds: 1. July 1, 2015 2. September 14, 2015 3. August 19, 2016 4. June 16, 2017 5. July 28, 2017 6. October 20, 2017 7. October 31, 2017 8. November 22, 2017 9. January 25, 2018 10. June 12, 2018 11. November 14, 2019

YOU ARE HEREBY ORDERED to immediately vacate the premises, if the premises are not already vacant. YOU ARE FURTHER ORDERED to obtain the proper permits as required and secure the building and to cause the building to be secured immediately. YOU ARE FURTHER ORDERED not to lease or rent any of the buildings, and to maintain the buildings at the above address VACANT and SECURE against entry until it has been determined that said buildings are no longer dangerous by the Ogden City Building Department.

YOU ARE HEREBY ORDERED to obtain the proper demolition permits and commence to completion with reasonable diligence, demolition of said building not later than FIFTEEN (15) DAYS FROM THE DATE OF SERVICE OF THIS NOTICE, and to have said work of abatement completed within the limits of required permits. If you fail to do so, your non-compliance will result in the buildings being abated at the direction of Ogden City, and the total cost of said abatement shall be levied as a special assessment against said property.

YOU ARE HEREBY ADVISED that all other persons having an interest in said building or land are hereby notified that they may, at their own risk and expense, so abate said buildings not later than the date herein above provided, so as to prevent the levy by Ogden City of the aforesaid special assessment on said property.

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YOU ARE HEREBY FURTHER ADVISED that failure to abate (correct) the nuisance within the time specified is a misdemeanor.

YOU ARE HEREBY FURTHER ADVISED that the building or structure identified in this Notice and Order has deteriorated to a condition that has rendered it uninhabitable. Any nonconforming use pertaining to the building or structure will be lost if the building or structure is not repaired or restored within six (6) months after the date this notice is mailed to you.

YOU ARE HEREBY FURTHER ADVISED that any person having any record title or legal interest in the building may appeal the Notice and Order to the Ogden City Board of Building and Fire Code Appeals, provided the appeal is made in writing, within 10 days from the DATE OF SERVICE of such notice and order. Failure to do so constitutes a waiver of all rights to an administrative hearing and determination of the matter. SERVICE by mail in the manner herein provided shall be effective five (5) days after the date of mailing of this notice and order.

YOU ARE HEREBY FURTHER ADVISED that non-compliance of this notice and order of the appeal process, within the time specified, will result in the recordation of this order with the County Recorders Office for permanent record on the property abstract.

Id. at 222–26 (emphasis in original).

A notice of the declaration was sent to Bruce on January 9, 2020, ordering him

to “commence with the demolition/rehabilitation of the building not later than fifteen

(15) days from the date of the Notice.” Id. at 266. Bruce failed to respond to the

notice. More specifically, Bruce failed to commence demolition or rehabilitation

work on the Property, did not seek to “obtain permits for either the repair or

demolition of the building within the required period,” and did not appeal the

declaration and notice. Id. at 266.

On February 4, 2020, Patrick petitioned Michael Caldwell, the Mayor of the

City, “to hold a hearing and order” Bruce “to show cause why [the City] should not

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abate the dangerous building.” Id. at 265. A hearing was scheduled for March 6,

2020, and Bruce was notified of the hearing. “Bruce appeared at the hearing via

telephone and was also represented in person through his attorney, Aaron C. Garrett.”

Id. On April 8, 2020, Caldwell determined that “the building [wa]s in fact dangerous

as defined in the Ogden Municipal Code and [was] a public nuisance.” Id. at 268.

Caldwell also found that Bruce “ha[d] not shown valid reasons why the city should

not proceed with the demolition of the building.” Id. Caldwell therefore ordered the

building to be demolished and “the cost of such demolition” to “be recovered by a tax

lien on the property.” Id. at 269.

II

Procedural history

On March 16, 2020, Bruce initiated these proceedings by filing a complaint in

federal district court against the City and Caldwell in his official capacity as Mayor

of the City. Bruce alleged in his complaint that he first received notice from the City

in 2009 “that it had changed the zoning of the Property to a single family residential

zone.” Id. at 11. Bruce further alleged that “[b]efore 2009 [he] had spent tens of

thousands of dollars on renovations and upgrades to the residential units located on

the Property.” Id. Bruce alleged that he “received no hearing or other proper due

process before the Property was down-zoned.” Id. Bruce alleged that “[h]e

attempted an administrative appeal” of the down-zoning, but the “City ignored his

appeal,” “ordered that the two units at 3166 Grant Avenue and the unit in the rear of

3172 Grant Avenue must remain unoccupied and empty forever,” and “instructed

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[him] to board up the units and otherwise close them from residential use.” Id. at 11–

12. Bruce alleged that, “[a]gainst his will, [he] complied with this order even though

it meant he had lost the substantial income he could generate from these three units.”

Id. at 12. Bruce also alleged that he “had two tenants in the side-by-side duplex

located at 3172 Grant Avenue, who [the] City agreed could remain in the homes until

they moved.” Id. “After that, however, [the] City [allegedly] mandated that [Bruce]

could only lease one of the two units at 3172, and only one of his five units on the

Property, at any given time.” Id.

The first three causes of action alleged in the complaint sought relief under 42

U.S.C. § 1983 for various constitutional violations allegedly committed by the City

and/or Caldwell. The first of those three causes of action, titled “DEPRIVATION

OF PROPERTY UNDER FIFTH AMENDMENT RIGHTS,” alleged that

“Defendants maintain[ed] a policy, practice, custom, or procedure through which

[they] downzone[d] multi-unit parcels to single-family dwellings without providing

owners proper notice, reasonable ability to contest the zoning change before a neutral

party, and the right to appeal.” Id. at 15. It further alleged that “[a]s a result of this

policy, practice, custom, or procedure, Defendants ha[d] unlawfully deprived [Bruce]

of his private property.” Id.

The second cause of action, titled “VIOLATION OF PROCEDURAL DUE

PROCESS—FOURTEENTH AMENDMENT,” alleged that Bruce’s “legitimate

property interest . . . in the Property was abridged, under color of state law, without

appropriate due process.” Id. at 16. More specifically, the cause of action alleged

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that Defendants “ha[d] unlawfully deprived [Bruce] of his private property” “[a]s a

result of [their] policy, practice, custom, or procedure” by which they “downzone[d]

multi-unit parcels to single-family dwellings without providing owners proper notice,

reasonable ability to contest the zoning change before a neutral party, and the right to

appeal.” Id.

The third cause of action, titled “VIOLATION OF SUBSTANTIVE DUE

PROCESS,” alleged that due to defendants’ “policy, practice, custom, or procedure

which prefer[red] single family units to the multi-family unit property maintained by

[Bruce],” defendants “ha[d] unlawfully deprived [Bruce] of his private property” and

“violated [his] substantive due process rights under the United States Constitution.”

Id. at 16–17.

The fourth cause of action alleged in the complaint was titled

“INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS UNDER

UTAH STATE LAW.” Id. at 18. This cause of action alleged that “Defendants

intentionally interfered with [Bruce’s] existing or potential economic relations with

respect to the Property” and “did so with the improper and predominant purpose of

injuring [him] and his financial interest in the Property.” Id.

On February 15, 2022, defendants filed a motion for summary judgment with

respect to all of the claims asserted in Bruce’s complaint. Defendants argued that

Bruce’s Fifth Amendment takings claim failed as a matter of law because the subject

ordinance did not deprive Bruce of all economically viable uses of the Property, there

was no evidence of diminution in value, and any alleged diminution in value did not

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amount to a taking. Defendants in turn argued that Bruce’s “claim of a procedural

due process violation should be dismissed as a matter of law because the challenged

Ordinance was the result of legislative action.” Id., Vol. 2 at 160. As for Bruce’s

substantive due process claims, defendants argued those should be dismissed because

the challenged government action was not arbitrary and capricious, or capable of

shocking the judicial conscience. Finally, defendants argued that Bruce’s tortious

interference claim was fatally flawed because he “failed and refused to provide any

evidence concerning the damages sustained by him as a result of [the] City’s

actions.” Id., Vol. 1 at 46.

Bruce opposed the motion, in part. Specifically, Bruce argued that genuine

issues of material fact precluded summary judgment on his constitutional claims

against the City, but he “d[id] not dispute dismissal of . . . Caldwell in his official

capacity [as Mayor] or the dismissal of the interference with business relations

claim.” Id., Vol. 2 at 23 n.4.

Defendants filed a reply brief in support of their motion for summary

judgment. In it, defendants argued, in relevant part, that some of the statements and

admissions contained in Bruce’s response to the motion for summary judgment

established that his claims arose long before his complaint was filed and that, as a

result, his constitutional claims were untimely. Bruce filed a surreply arguing, in

relevant part, that his claims were not time-barred.

On November 8, 2022, the district court issued a written order granting

defendants’ motion for summary judgment. The district court concluded, as an initial

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matter, that to the extent Bruce was alleging the existence of any constitutional

violations stemming from the enactment of the Ordinance and the issuance of the

2009 Notice, those claims were time-barred. The district court next considered

“whether a reasonable jury could find that the 2020 Demolition Order and its related

proceedings were a Fifth Amendment taking without just compensation, a denial of

procedural due process, or a violation of substantive due process.” Id., Vol. 4 at 25.

The district court concluded that “[b]ecause [Bruce] d[id] not allege a permanent

physical invasion of the Property,” it only needed to consider “whether [he] ha[d]

sufficient evidence to show that either . . . the City completely deprived [him] of ‘all

economically beneficial use’ of his property under Lucas[ v. South Carolina Coastal

Council, 505 U.S. 1003 (1992)] or” that “the evidence [wa]s sufficient to satisfy the

Penn Central[ Transp. Co. v. New York City, 438 U.S. 104 (1978)] analysis.” Id. at

26. The district court concluded that Bruce’s evidence was insufficient to show a

taking under Lucas because it did not show that defendants denied him all

economically beneficial use of the Property. Id. at 27–29. The district court also

concluded that Bruce’s evidence was insufficient to show a taking under Penn

Central because he provided no evidence of economic impact or a distinct,

investment-backed expectation to maintain a nuisance; lastly, the district court

concluded that regulating a nuisance is quintessential government action.

As for Bruce’s procedural due process claim, the district court concluded that

“[i]t [wa]s undisputed that [Bruce] ha[d] a property interest in the Property.” Id. at

32. The district court in turn concluded that the record evidence established that

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Bruce received notice from the City that it was considering demolishing one of the

buildings on the Property, that Bruce was afforded a hearing, that Bruce appeared

remotely at the hearing and was represented in-person through his attorney, and that

the mayor rendered a decision after hearing the evidence and the arguments from

both sides. Id. at 33. Although the district court noted that Bruce’s position was that

“the mayor’s role as arbiter violated procedural due process,” it rejected that view,

noting that Bruce “fail[ed] to offer any evidence that the City’s mayor faced any

circumstances that would lead him not to be impartial and fair.” Id. at 33, 34.

Finally, as for Bruce’s substantive due process claim, the district court noted

that the “City Code authorizes the City to abate dangerous buildings that ‘endanger

the life, limb, health, morals, property, safety or welfare of the general public or their

occupants,’” and the “[r]ecord evidence show[ed] that the . . . City Building Official

reviewed the condition and history of the structure at 3166 Grant Avenue,”

“observ[ed] that the structure had been vacant for years, had experienced a fire in

2018, and was the location of 38 calls to the police over the last three years,” and

“concluded that the property was dangerous.” Id. at 36. The district court further

noted that “[a]fter hearing from the building official and from [Bruce], the mayor

also concluded that the building was dangerous and should be demolished.” Id. The

district court concluded that “[n]o reasonable jury could find that this constitutes

‘outrageous’ conduct.” Id.

Final judgment was entered in the case on November 8, 2022. Bruce filed a

timely notice of appeal on November 22, 2022.

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III

In his appeal, Bruce challenges the entirety of the district court’s decision

granting summary judgment in favor of the City. Specifically, Bruce argues that the

district court erred in concluding that (1) many of his claims were time-barred, (2) he

could not establish a Fifth Amendment takings claim, (3) the mayor was a neutral

decision-maker, and (4) the City’s actions did not shock the conscience so as to give

rise to a substantive due process claim.

“We review the district court’s rulings on summary judgment de novo.” Deer

Creek Water Corp. v. City of Okla. City, 82 F.4th 972, 979 (10th Cir. 2023) (quoting

Hamric v. Wilderness Expeditions, Inc., 6 F.4th 1108, 1121 (10th Cir. 2021) (internal

quotation marks omitted)). “Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Id. (quoting Fed. R. Civ. P. 56(a) (internal quotation marks omitted)).

1) Statute of limitations

In his first issue on appeal, Bruce argues that the district court erred in

concluding that the statute of limitations had run on his § 1983 claims to the extent

they related to downzoning. “We review whether a district court properly applied a

statute of limitations de novo.” Allen v. Envtl. Restoration, LLC, 32 F.4th 1239, 1243

(10th Cir. 2022).

Because § 1983 itself contains no statute of limitations, § 1983 claims are

governed by the statute of limitations generally applicable to personal injury actions

in the state where the claims arose. Thus, in this case, Utah’s four-year residual

20 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 21

statute of limitations governs Bruce’s § 1983 claims. See Fratus v. DeLand, 49 F.3d

673, 675 (10th Cir. 1995).

The district court concluded, in addressing the timeliness of Bruce’s § 1983

claims, that to the extent Bruce was alleging the existence of any constitutional

violations stemming from the enactment of the Ordinance or the issuance of the 2009

Notice, those claims were time-barred, but to the extent Bruce’s alleged

constitutional violations stemmed from the 2020 Demolition Order and the related

proceedings, those claims were not time-barred. More specifically, the district court

noted that “by 2009, [Bruce] had notice of the . . . Ordinance . . . and was injured by

it.” Aplt. App., Vol. 4 at 24. Because he “did not file this complaint until 2020, the

four-year statute of limitations had long since run.” Id. As for the 2009 Notice, the

district court noted that Bruce “knew about the [notice],” “attempted to appeal it,”

“and then complied with it” all in 2009, “which [allegedly] caused him injury in the

form of lost rental income.” Id. “By 2013,” the district court concluded, “the

applicable four-year statute of limitations had expired.” Id. Finally, the district court

concluded that, to the extent Bruce’s alleged constitutional violations stemmed from

the 2020 Demolition Order and the related proceedings, those claims were not

time-barred because Bruce “filed his complaint in March 2020, well within the

four-year statute of limitations.” Id. at 25.

Bruce argues in his appeal that “the touchstone for [his] takings and due

process claims was the demolition order issued by” the Mayor “on March 6, 2020.”

Aplt. Br. at 11. He argues that “[i]t was through this order that [the] City ordered his

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building demolished, which constitutes a taking under the 5th Amendment.” Id.

More specifically, Bruce argues that “[t]he regulations” he now “challenge[s] . . .

with his lawsuit did not rise to the level of a total taking until Appellees ordered the

demolition of the building at 3166 Grant Avenue on the Property.” Id. at 8 (emphasis

in original). “Prior to that point,” Bruce asserts, “there was some theoretical residual

value for use of the Building.” Id. Consequently, he argues, “no statute of

limitations began to run on any of [his] claims until that order for demolition was

issued, in January 2020.” Id. at 8–9.

We begin with Bruce’s assertion that the demolition order resulted in a “total

taking” of the Property. For the reasons we shall discuss below in our analysis of

Bruce’s Fifth Amendment takings claim, Bruce has failed to demonstrate that the

demolition order resulted in a “total taking” of the Property. We therefore reject his

statute-of-limitations arguments to the extent that they rest on this “total takings”

theory.

Notably, Bruce does not otherwise challenge any of the conclusions that

underpin the district court’s statute of limitations rulings. Specifically, he has not

challenged the district court’s determinations that he “received notice of the

[Challenged Ordinance] no later than 2009, when Defendants mailed him [the 2009

Notice],” or that “Defendants began enforcing the ordinance on the Property” in

2009. Aplt. App., Vol. 4 at 24. Nor does Bruce challenge, at least directly, the

district court’s conclusion that because he “did not file this complaint until 2020, the

four-year statute of limitations had long since run,” meaning that “[a]ny

22 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 23

constitutional violations resulting from the . . . Ordinance are time-barred.” Id.

Lastly, Bruce does not challenge the district court’s conclusion that “[b]y 2013, . . .

the applicable four-year statute of limitations had expired” on any claim arising out

of the 2009 Notice. Id.

We therefore affirm the district court’s statute-of-limitations rulings.

2) The Fifth Amendment Takings claim

Bruce argues that the district court erred in granting summary judgment in

favor of the City on his Fifth Amendment takings claim. Bruce argues in support that

“all economically beneficial use of” the Property “has been eliminated by the

municipal demolition order.” Aplt. Br. at 13. According to Bruce, “[n]o additional

or replacement building will be permitted to be built” on the Property at 3166 Grant

Avenue, “as it is considered [by the City to be] one in the same with the buildings

located at 3172 Grant Avenue,” “and the revised local ordinances do not allow

multiple units on one parcel.” Id. at 14. “As such,” Bruce argues, “by ordering the

demolition of the Building at 3166 Grant Avenue, [defendants] have forced [him] to

hold the ground fallow and unused, and have erased any economic use of that

property.” Id.

“The Fifth Amendment’s Takings Clause provides that ‘private property [shall

not] be taken for public use, without just compensation.’” N. Mill St., LLC v. City of

Aspen, 6 F.4th 1216, 1224 (10th Cir. 2021) (quoting U.S. Const. amend. V). “The

Supreme Court has recognized that government regulation of private property may, in

some instances, be so onerous that its effect is tantamount to a direct appropriation or

23 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 24

ouster—and that such regulatory takings may be compensable under the Fifth

Amendment.” Id. (quoting Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 537 (2005)

(internal quotation marks omitted)). “The Court has identified two categories of

regulatory action that are per se takings: (1) where government requires an owner to

suffer a permanent physical invasion of her property—however minor, and (2)

regulations that completely deprive an owner of all economically beneficial use of

her property.” Id. (quoting Lingle, 544 U.S. at 538) (internal quotation marks

omitted).

In addition to these two categories of per se takings, “a taking still may be

found” “when a regulation impedes the use of property without depriving the owner

of all economically beneficial use.” Murr v. Wisconsin, 582 U.S. 383, 393 (2017).

In such situations, “a taking . . . may be found based on a complex of factors,

including (1) the economic impact of the regulation on the claimant; (2) the extent to

which the regulation has interfered with distinct investment-backed expectations; and

(3) the character of the governmental action.” Id. (internal quotation marks omitted).

“A central dynamic of the Court’s regulatory takings jurisprudence . . . is its

flexibility,” by which courts “reconcile two competing objectives central to

regulatory takings doctrine.” Id. at 394. “One is the individual’s right to retain the

interests and exercise the freedoms at the core of private property ownership.” Id.

Second “is the government’s well-established power to ‘adjus[t] rights for the public

good.’” Id. (quoting Andrus v. Allard, 444 U.S. 51, 65 (1979)). In balancing these

two competing objectives, “the analysis must be driven by the purpose of the Takings

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Clause, which is to prevent the government from forcing some people alone to bear

public burdens which, in all fairness and justice, should be borne by the public as a

whole.” Id. (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617–18 (2001))

(internal quotation marks omitted).

In determining whether a regulatory taking has occurred, a reviewing court

must determine “the proper unit of property against which to assess the effect of the

challenged governmental action.” Id. at 395. That is “[b]ecause [the] test for

regulatory taking requires” a reviewing court “to compare the value that has been

taken from the property with the value that remains in the property.” Id. (quoting

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987)) (internal

quotation marks omitted). “To the extent that any portion of property is taken, that

portion is always taken in its entirety; the relevant question, however, is whether the

property taken is all, or only a portion of, the parcel in question.” Id. (quoting

Concrete Pipe & Products of Cal., Inc v. Constr. Laborers Pension Trust for

Southern Cal., 508 U.S. 602, 644 (1993)).

In this case, Bruce effectively argues that the proper unit of property against

which to assess the effect of the challenged governmental action is the “building and

property located at 3166 Grant Avenue,” i.e., the specific building that is the subject

of the demolition order. Aplt. Br. at 12 (capitalization omitted). The City argues, in

contrast, that the proper unit of property for purposes of analysis is “the entire subject

parcel,” i.e., the Property. Aple. Br. at 17.

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We conclude that the City has the better of the argument. In Murr, the

Supreme Court noted that it “has declined to limit the parcel in an artificial manner to

the portion of property targeted by the challenged regulation.” 582 U.S. at 396. The

Court also held that “courts should give substantial weight to the treatment of the

land, in particular how it is bounded or divided, under state and local law.” Id. at

397. In this case, it is undisputed that, although the Property encompasses two street

addresses, it is a single parcel of real estate that the state and the City have long

treated as one tax parcel, and that the City has treated as a single unit for purposes of

zoning. Thus, in assessing whether the demolition order resulted in a taking for

purposes of the Fifth Amendment, we conclude we must treat the Property as a whole

as the “proper unit of property against which to assess the effect of the challenged

governmental action,” rather than simply the building that is the subject of the

demolition order. Id. at 395.

As the Supreme Court has noted, defining the proper unit of property is often

“outcome determinative.” Id. That is because “the relevant question . . . is whether

the property taken is all, or only a portion of, the parcel in question.” Id. (quoting

Concrete Pipe, 508 U.S. at 644). And that is true here, at least in part. Even

assuming that the demolition order resulted in a taking by the City of the portion of

the Property associated with 3166 Grant Avenue, that portion represents only part of

the Property. More specifically, there is no evidence that the demolition order

required Bruce “to suffer a permanent physical invasion” of the Property or

“completely deprive[d]” him “of all economically beneficial use of” the Property.

26 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 27

N. Mill St., 6 F.4th at 1224 (quoting Lingle, 544 U.S. at 537). Indeed, as the district

court correctly noted, Bruce may still rent, occupy, or sell the Property after the

offending duplex is demolished. Thus, the Property in its entirety was not taken by

the demolition order. Consequently, that eliminates the possibility that the

demolition order resulted in a per se taking of the Property.

That leaves only the possibility of a taking “based on a complex of factors,

including (1) the economic impact of the regulation on the claimant; (2) the extent to

which the regulation has interfered with distinct investment-backed expectations; and

(3) the character of the governmental action.” Murr, 582 U.S. at 393. With respect

to the first of these factors, the district court concluded that Bruce “provided no

evidence of the value that remains in the Property or of the value that has been taken

by the demolition order.” Aplt. App., Vol. 4 at 30. With respect to the second factor,

the district court concluded that when Bruce purchased the Property in 1983, he had

no distinct, investment-backed expectation in maintaining a nuisance. Id.

(capitalization omitted). Consequently, the district court concluded that “the 2020

Demolition Order did not interfere with [Bruce]’s distinct investment-backed

expectations.” Id. at 31. Lastly, with respect to the third factor, the district court

concluded that “[r]egulating a nuisance is quintessential government action.” Id.

The district court further noted that Bruce “offer[ed] no evidence that the duplex at

3166 Grant Avenue is not a nuisance,” and that, “[i]nstead, the unrebutted evidence

show[ed] that the building is dangerous because it is structurally deficient and left

unsecured.” Id. Notably, Bruce does not discuss these three factors at all in his

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opening appellate brief, let alone make any attempt to rebut the district court’s

conclusions regarding these factors.

We therefore conclude that the district court correctly granted summary

judgment in favor of the City on Bruce’s Fifth Amendment Takings claim.

3) The procedural due process claim

Bruce next argues that the district court erred in granting summary judgment

in favor of the City on his procedural due process claim. Bruce asserts that he “was

not provided notice of the zoning changes as they were being considered and enacted

in the 2000–2001 time period, and in the summary judgment briefing, Appellees

presented no admissible evidence to contradict his sworn statement.” Aplt. Br. at 16.

Bruce also challenges the hearing that preceded the demolition order, arguing that

“[d]ue process requires a neutral and detached decision maker; and in these

circumstances using the executive officer of the municipal body bringing the claim

against [him] as the presiding judge does not meet this basic due process

requirement.” Id. at 17.

Bruce’s argument that he failed to receive notice of the zoning changes to the

Property fails for at least three reasons. First, the district court found that Bruce

“admit[ted] that he received notice of the [2001] ordinance by no later than 2009,

when Defendants mailed him a notice.” Aplt. App., Vol. 4 at 24. Bruce does not

dispute this finding in his opening appellate brief. Second, and relatedly, the district

court concluded that “by 2009, [Bruce] had notice of the . . . Ordinance . . . and was

injured by it,” but “did not file this complaint until 2020.” Id. As a result, the

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district court concluded that “the four-year statute of limitations had long since run”

when Bruce filed his complaint in 2020, and “[a]ny constitutional violations resulting

from the 2001 Ordinance [we]re time-barred.” Id. Again, Bruce does not dispute

this conclusion in his opening appellate brief, and therefore, to the extent his

procedural due process claim is based upon failure to receive notice of the Ordinance,

it is time-barred. Third, even if the claim was not time-barred, it clearly lacks merit.

That is because the Supreme Court long ago “held that constitutional procedural due

process does not govern the enactment of legislation,” and we in turn have held that

“the adoption of a general zoning law is a legislative action.” 4 Onyx Props. LLC v.

Bd. of Cnty. Comm’rs of Elbert Cnty., 838 F.3d 1039, 1045–46 (10th Cir. 2016).

As for Bruce’s arguments regarding the propriety of the Mayor presiding over

the demolition hearing, it is well established that due process requires an “impartial

and disinterested” adjudicator, Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980),

and prohibits procedures that “might lead” “the average [person] as a judge . . . not to

hold the balance nice, clear, and true between” the opposing parties, Tumey v. State

of Ohio, 273 U.S. 510, 532 (1927). That said, we have held that “a substantial

showing of personal bias is required to disqualify a hearing officer or tribunal.”

4 In Onyx, this court “recognize[d] that not all actions by municipal boards are legislative,” and that “[w]hen 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.” 838 F.3d at 1046. That exception clearly does not apply to the 2001 Ordinance in this case, because it applied generally to all R-2 zoning areas in the City. 29 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 30

Corstvet v. Boger, 757 F.2d 223, 229 (10th Cir. 1985). Further, a person claiming

bias on the part of a hearing officer or tribunal “must overcome a presumption of

honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S.

35, 47 (1975). In applying this presumption, we have held that “[d]ue process is

violated only when ‘the risk of unfairness is intolerably high’ under the

circumstances of a particular case.” Mangels v. Pena, 789 F.2d 836, 838 (10th Cir.

1986) (quoting Withrow, 421 U.S. at 58). We have also held that “[b]ecause honesty

and integrity are presumed on the part of a tribunal, there must be some substantial

countervailing reason to conclude that a decisionmaker is actually biased with respect

to factual issues being adjudicated.” Id. (citations omitted).

The Supreme Court has, over the past century, applied these same procedural

due process principles to three cases, two of which Bruce cites in his opening brief,

involving mayor’s courts, i.e., where the mayor of a town served both in an executive

capacity and a judicial capacity overseeing certain crimes and alleged ordinance

violations. In Tumey, the mayor was authorized to try certain crimes and fine those

persons whom he found guilty. 273 U.S. at 516–17. Notably, any fines that were

paid partly supplemented the mayor’s salary, and the remainder was deposited into

the village’s general fund, which the mayor had substantial control over. Id. at 517–

19. The Supreme Court held in Tumey that the mayor was not an impartial

adjudicator because of his personal and official interests in securing convictions and

in turn imposing fines. Id. at 523.

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A year later, in Dugan v. Ohio, the Court heard an appeal from a conviction

“before the mayor’s court of the city of Xenia, Greene county, Ohio.” 277 U.S. 61,

62 (1928). The defendant was convicted by the mayor of possessing intoxicating

liquor and fined $1,000. Id. at 63. “The defendant . . . raised the question of the

constitutional impartiality of the mayor to try the case.” Id. at 62. In addressing this

question, the Supreme Court noted that “[t]he mayor ha[d] no executive, and

exercise[d] only judicial, functions,” and his “salary [wa]s fixed by the votes of the

members of the [city] commission other than the mayor, he having no vote therein.”

Id. at 63. The Court also noted that the mayor “receive[d] no fees” from fines

imposed on criminal defendants. Id. In addition, the Court distinguished the case

from Tumey because “[t]he mayor of Xenia receive[d] a salary which [wa]s not

dependent on whether he convict[ed] in any case or not,” and even though “his salary

[wa]s paid out of a fund to which fines accumulated from his court,” that was “a

general fund, and he receive[d] a salary in any event, whether he convict[ed] or

acquit[ted].” Id. at 65. The Court therefore rejected the defendant’s procedural due

process argument.

The third and most recent case involving a mayor’s court was Ward v. Village

of Monroeville, 409 U.S. 57 (1972). Although the mayor’s salary in that case did not

depend on fines from convictions, the mayor did perform executive functions in

addition to his judicial functions, and the revenue from fines constituted a

“substantial portion of [the] municipality’s funds.” Id. at 59. The Supreme Court

held that, because the mayor exercised “executive responsibilit[i]es for village

31 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 32

finances,” this created an impermissible incentive for him “to maintain the high level

of contribution from [his] court” to the village’s general fund. Id. at 60. The Court

therefore reversed the defendant’s conviction on procedural due process grounds.

The case at hand differs substantially from all three of these Supreme Court

cases involving mayor’s courts. To begin with, the case at hand does not involve the

Mayor acting in a judicial capacity in criminal proceedings, but rather involves the

Mayor acting in an adjudicatory capacity in a demolition proceeding. Further, unlike

all three of the Supreme Court cases, the Mayor in this case did not impose any fines

on Bruce. Thus, there was no possibility in the instant case that ruling against Bruce

in the demolition proceeding would have financially benefited the City’s Mayor,

either personally or professionally. To be sure, the Mayor in this case did order that

the city’s cost to conduct the demolition be recovered by a tax lien on the Property.

But, again, there is no evidence that such a tax lien would benefit the Mayor either

personally or professionally.

Although Bruce cites to Tumey and Ward in his opening appellate brief, he

makes no attempt to explain how they support his procedural due process claim. Nor

does he offer any explanation as to why the Mayor in this case was biased, other than

to generally state that the Mayor was “the executive officer of the municipal body

bringing the claim against” Bruce. Aplt. Br. at 17. That general assertion, standing

alone, is insufficient to allow a reasonable jury to find that the Mayor was biased

against Bruce or to otherwise find that there was a substantial risk of unfairness in

the demolition proceedings due to the Mayor’s role as adjudicator.

32 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 33

For these reasons, we affirm the district court’s grant of summary judgment in

favor of the City on Bruce’s procedural due process claim.

4) The substantive due process claim

Finally, Bruce argues that the district court erred in granting summary

judgment in favor of the City on his substantive due process claim. To understand

this claim and Bruce’s appellate arguments regarding it, it is useful to turn first to the

allegations in Bruce’s complaint. Bruce alleged in his complaint, in support of his

substantive due process claim, that “Defendants . . . acted in an arbitrary and

capricious manner with respect to [his] rights in the Property, including but not

limited to their improper downzoning of the Property inconsistent with the historical

use of the Property and factual reality on the ground, as well as . . . its inconsistent

treatment of nearby properties that should have been similarly downzoned, but were

not.” Aplt. App., Vol. 1 at 17. Bruce further alleged that “Defendants maintain[ed] a

policy, practice, custom, or procedure which prefer[red] single family units to the

multi-family property maintained by [him], particularly where the owners are not

local residents.” Id. Bruce alleged that he had been “unlawfully deprived . . . of his

private property” as a result of these actions, and that “[t]hese actions [we]re

outrageous and of such a magnitude . . . that it truly shock[ed] the conscience.” Id.

In his brief in opposition to defendants’ motion for summary judgment, Bruce

argued, in discussing his substantive due process claim, that he “was stripped of the

right to rent three of the five units on his Property immediately, and it w[ould]

ultimately become four of the five units once one of the tenants vacate[d].” Id., Vol.

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2 at 20. Bruce further argued that “[h]e was not provided notice of the zoning

changes as they were being considered and enacted in the 2000–2001 time period,

and Defendants . . . presented no admissible evidence to contradict his sworn

statement.” Id. Bruce also argued that “Defendants . . . used their administrative

authority to order him to keep the units unoccupied while at the same time requiring

him to maintain and upkeep the Property.” Id. Lastly, Bruce alleged that

“Defendants appointed themselves judge, jury, and executioner in the form of an

administrative hearing in which [the] City’s mayor decided whether or not [the] City

had presented sufficient evidence to permit [the] City to order the demolition of [his]

buildings, thereby furthering the city’s policy and custom against multifamily

housing and entitling it to a tax lien.” Id. at 20–21.

The district court did not address most of the arguments on the merits because

it concluded that any claims arising out of the enactment of the 2001 Ordinance and

the 2009 Notice were time-barred. Thus, it only ruled on the merits of Bruce’s

arguments pertaining to the Mayor’s demolition order. As to those arguments, the

district court noted that (a) the City Code authorizes the City to abate dangerous

buildings, (b) the City’s Building Official concluded that the structure at 3166 Grant

Avenue was dangerous (based on its long-term vacancy, a fire, and numerous police

calls to the building over a multi-year period), and (c) after hearing from the Building

Official, the Mayor “also concluded that the building was dangerous and should be

demolished.” Aplt. App., Vol. 4 at 36. The district court concluded that “[n]o

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reasonable jury could find that this constitutes ‘outrageous’ conduct” sufficient to

give rise to a substantive due process violation. Id.

In his opening appellate brief, Bruce repeats the same arguments he made in

his brief in opposition to defendants’ motion for summary judgment. Aplt. Br. at 16.

In other words, he does not discuss, let alone challenge, the district court’s rationale

for rejecting his substantive due process challenge to the demolition order. Thus, for

that reason alone, we could summarily reject Bruce’s appellate arguments and affirm

the district court’s decision regarding his substantive due process claim. See Nixon v.

City and Cnty. of Denver, 784 F.3d 1364, 1369 (10th Cir. 2015) (affirming district

court’s dismissal of due process claim because appellant’s “opening brief contains

nary a word to challenge the basis of the dismissal”).

Out of an abundance of caution, however, we will proceed to address Bruce’s

challenge to the demolition order on the merits. To state a valid Fourteenth

Amendment substantive due process claim challenging executive action such as the

Mayor’s demolition order, a plaintiff must plausibly allege that “the government

action deprive[d] [the plaintiff] of life, liberty, or property in a manner so arbitrary it

shocks the judicial conscience.” Halley v. Huckaby, 902 F.3d 1136, 1153 (10th Cir.

2018). To be conscience shocking, a defendant’s behavior must lack “any reasonable

justification in the service of a legitimate governmental objective.” Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Further, “[f]or executive action to

shock the conscience requires much more than mere negligence.” Halley, 902 F.3d at

1155. “Conduct that shocks the judicial conscience is deliberate government action

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that is arbitrary and unrestrained by the established principles of private right and

distributive justice.” Id. (quoting Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th

Cir. 2013) (internal quotation marks omitted). “To show a defendant’s conduct is

conscience shocking, a plaintiff must prove a government actor arbitrarily abused his

authority or employed it as an instrument of oppression.” Id. (quoting Hernandez,

734 F.3d at 1261) (internal quotation marks omitted). “The behavior complained of

must be egregious and outrageous.” Id. (quoting Hernandez, 734 F.3d at 1261)

Nothing in the record in this case comes close to establishing that the City or

Mayor acted egregiously or outrageously in seeking or issuing the demolition order.

As the district court noted, municipalities have an important interest in controlling

blight by demolishing buildings that are deemed a nuisance or threat to public health

or safety. See Harris v. City of Akron, 20 F.3d 1396, 1405 (6th Cir. 1994) (“So far as

we know, or have been informed, no court has held that it shocks the conscience for

municipal authorities, acting pursuant to an unchallenged ordinance, to order the

destruction of a building found by responsible officers to be a nuisance or threat to

public health or safety.”). In this case, the City’s code recognizes as much because it

contains an entire chapter dedicated to the abatement of dangerous buildings and

structures, i.e., “buildings or structures which from any cause endanger the life, limb,

health, morals, property, safety or welfare of the general public or their occupants.”

Ogden City Code § 16-8A-2. That chapter provides, in relevant part, that “[a]ll

buildings or portions thereof which are determined after inspection by the building

36 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 37

official to be ‘dangerous’, as defined in Subsection B of this section, are hereby

declared to be public nuisances and shall be abated by repair, rehabilitation,

demolition or removal in accordance with the procedures specified herein.” Id.

§ 16-8A-6(A).

It is undisputed that City officials acted pursuant to the City code when, on

February 21, 2020, the City’s Building Official, Steve Patrick, sent a letter to Bruce

notifying him that Patrick had, for a number of stated reasons, deemed the structure

located on the north side of the parcel with street address 3166 Grant a dangerous

building under the City’s code. In that same letter, Patrick ordered Bruce to

rehabilitate or demolish the building within fifteen days. Bruce failed to do so,

prompting Patrick on February 4, 2020, to petition the Mayor of the City to hold a

hearing and order Bruce to show cause why the City should not abate the building.

Bruce received notice of, appeared, and was represented by counsel, at the hearing

before the Mayor. After the hearing, the Mayor determined that the building was in

fact dangerous, as defined by the City’s code, and was a public nuisance.

Consequently, the Mayor ordered the building to be demolished and that a tax lien for

the cost of the demolition be imposed on the Property.

Notably, Bruce does not dispute that the City code authorized these activities,

and he does not dispute any of those code provisions. Nor does Bruce seriously

challenge the determinations of both the City’s Building Official and the Mayor that

the structure at 3166 Grant was dangerous, as defined under the City’s code.

37 Appellate Case: 22-4114 Document: 010110961687 Date Filed: 12/01/2023 Page: 38

In sum, Bruce offers nothing, either evidence or argument, that remotely

establishes that the City’s actions could be deemed to shock the conscience. We

therefore affirm the district court’s grant of summary judgment in favor of defendants

on Bruce’s substantive due process claim.

IV

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge