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

295 F.R.D. 506
CourtDistrict Court, D. Colorado
DecidedJanuary 17, 2013
DocketCivil Case Nos. 10-cv-01482-LTB-KLM, 11-cv-02321-RPM-MJW
StatusPublished

This text of 295 F.R.D. 506 (Onyx Properties LLC v. Board of County Commissioners of Elbert County) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Onyx Properties LLC v. Board of County Commissioners of Elbert County, 295 F.R.D. 506 (D. Colo. 2013).

Opinion

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

This matter is before me on Plaintiffs’ Motion for Class Certification Pursuant to Rule 23, Fed.R.Civ.P., in which Plaintiffs Onyx Properties, Emerald Properties, Valley Bank & Trust, Paul & Shauna Naftel, and the Estate of Local Service Corporation seek to have this ease certified as a class action. [Doc. # 42] Defendant Board of County Commissioners of Elbert County (the “BOCC”) opposes this request. Oral argument would not materially assist me in the determination of this motion. For the following reasons, I DENY the motion seeking class certification.

[509]*509I. BACKGROUND

Plaintiffs in this case owned large tracts of property in Elbert County, Colorado, that they sought to divide into 35-acre parcels for development and sale in 2004-2006. The property known as Kiowa Creek Estates was owned by Plaintiffs Onyx Properties, Emerald Properties, and Paul & Shauna Naftel. The property know as Wolf Creek Ranches & Wolf Creek Estates was owned by Plaintiff Local Service Corporation and, later, by Plaintiff Valley Bank and Trust. The BOCC, via the Elbert County Planning Department, required both developments proceed through a re-zoning process in order to be subdivided. Ultimately, in two separate applications, Wolf Creek Ranches & Wolf Creek Estates was re-zoned from “A-Agriculture” to an “A-l” designation on October 27, 2004 and November 17, 2004. Kiowa Creek Estates was subsequently re-zoned from “A-Agriculture” to an “A-l” designation on September 20, 2006.

Thereafter, in 2006/2007, the BOCC brought and prevailed on a zoning enforcement action in Elbert County District Court enjoining property owners Kenneth, Karen and Paul Rohrbach from operating a commercial composting business on their property located in Elbert County. The Rohrbachs appealed and, in September 2009, a panel of the Colorado Court of Appeals reversed by overturning the trial court’s ruling that the BOCC had proved that the Rohrbachs’ property was zoned “A-Agriculture.” Board of County Commissioners of Elbert County v. Rohrbach, 226 P.3d 1184 (Colo.App.2009). The Court of Appeals determined that the applicable zoning regulation, which purported to establish zoning areas in Elbert County, could not be used to ascertain the zoning of the Rohrbachs’ property because it:

established zoning areas by showing them on the map ‘dated July 5, 1983.’ The [BOCC] was not able to find and did not introduce that map into evidence. Because the text of the regulation relied on the map to establish the zoning and the map was not produced, the [trial] court could not ascertain the zoning adopted by the [BOCC] ...

Id. at 1188. As such, the Court concluded that “because the [BOCC] did not introduce a copy of the July 5, 1983 map in this case, it failed to prove that the Rohrbachs’ property was zoned agricultural [and t]hus, the trial court erred in granting the injunction.” Id. at 1189. A Petition for Writ of Certiorari was subsequently denied by the Colorado Supreme Court on March 15, 2010. See 2010 WL 893813 (Colo.2010).

Following the Colorado Court of Appeals ruling, Plaintiffs filed this lawsuit against the BOCC in June 2010. They assert that the BOCC violated their constitutional rights to due process by improperly enacting and subsequently enforcing illegal or non-existent zoning regulations, and the related zoning map, against them and other property owners in Elbert County. Plaintiffs raise individual claims under 42 U.S.C. § 1983 for the loss of their individual property rights without due process of law.

They also assert class claims under § 1983 against the BOCC seeking damages and injunctive relief. With respect to the damages relief, Plaintiffs seek certification of a “Damages Class” consisting of:

all persons who have on or after August 28, 1997:(1) submitted one o[r] more land use applications pursuant to the Zoning Regulations; and (2) all persons who have had the Zoning Regulations as amended by Wolf (inclusive of the Wolf Maps) and the BOCC enforced against them.

With respect to the injunctive relief, Plaintiffs seek an injunction against the BOCC enjoining it from “any further uses of these invalid Zoning Regulations” against the proposed class, “inclusive of any resolutions passed in accordance or furtherance of the Zoning Regulations.” As a result, Plaintiffs request that I certify an “Injunction Class” consisting of:

the plaintiffs, all other members of the class, the citizens of Elbert County as well as other members of the public. [Doc. #58]

In this motion, Plaintiffs seek an order certifying this case as a class action pursuant to Fed.R.Civ.P. 23. The BOCC opposes this request on the basis that Plaintiffs are unable to demonstrate the requirements of class certification.

[510]*510II. LEGAL STANDARDS — CLASS CERTIFICATION

As the parties seeking class certification, Plaintiffs must first demonstrate that all four prerequisites of Fed.R.Civ.P. 23(a) are clearly met. Shook v. El Paso County, 386 F.3d 963, 971 (10th Cir.2004); see also Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir.2013). These threshold elements are that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative party are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a).

If Plaintiffs prove they have met these threshold requirements, they must then demonstrate that the action falls within one of the three categories set forth in Fed.R.Civ.P. 23(b). Shook v. El Paso County, supra, 386 F.3d at 971. Here, Plaintiffs seek certification as to the proposed Damages Class pursuant to Rule 23(b)(3), which requires that “questions of law or fact common to the members of the class predominate over any questions affecting individual members” and that the class action “is superior to other available methods for the fair and efficient adjudication of the controversy.” Plaintiffs also seek certification as to the Injunctive Class pursuant to Rule 23(b)(2), and must therefore show that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole.”

The party seeking to certify a class bears the strict burden of proving the requirements of Rule 23. Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir.2006).

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Cite This Page — Counsel Stack

Bluebook (online)
295 F.R.D. 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/onyx-properties-llc-v-board-of-county-commissioners-of-elbert-county-cod-2013.