IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

LEWIS T. BABCOCK, JUDGE

Civil Case No. 10-cv-01482-LTB-KLM (Consolidated w/11-cv-02321-RPM-MJW)

ONYX PROPERTIES LLC, a Colorado Limited Liability Company;

EMERALD PROPERTIES, LLC, a Colorado Limited Liability Company;

PAUL NAFTEL, an individual; 

SHAUNA NAFTEL, an individual;

LOCAL SERVICE CORPORATION, by and through its Chapter 11 bankruptcy trustee, 

Simon E. Rodriguez, 

Plaintiffs,

v.

BOARD OF COUNTY COMMISSIONERS OF ELBERT COUNTY, 

Defendant.

______________________________________________________________________________

ORDER

______________________________________________________________________________

This matter is before me on a Motion for Summary Judgment filed by Defendant, Board

of County Commissioners of Elbert County (the “BOCC”), seeking judgment in its favor on the

42 U.S.C. §1983 claim raised against it by Plaintiffs Onyx Properties LLC, Emerald Properties,

LLC, Paul & Shauna Naftel, and Local Service Corporation, by and through its Chapter 11

bankruptcy trustee Simon E. Rodriguez. [Doc #141] After consideration of the parties’ briefs

and attachments, as well as oral arguments by counsel in open court on March 16, 2015, I

GRANT the motion.

I. BACKGROUND

Plaintiffs owned large parcels of property in Elbert County, Colorado. During the 2004-

2006 time period, Plaintiffs sought to divide their respective properties into smaller 35-acre

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 1 of 16
parcels for development and sale. It is Elbert County’s position that the properties were zoned

“A-Agricultural” at the time of purchase and, in order to subdivide the properties, it required both

developments to proceed through a re-zoning process to an “A-1” zoning designation. The

property known as Wolf Creek Ranch & Wolf Creek Estates was subsequently re-zoned from

“A-Agriculture” to an “A-1” designation in October of 2004, and property known as Kiowa

Creek Estates was re-zoned from “A-Agriculture” to an “A-1” designation in September of 

2006.

In this lawsuit, Plaintiffs assert that Elbert County illegally enforced invalid zoning

regulations and maps when requiring them to re-zone their property. As such, Plaintiffs assert

claims under 42 U.S.C. §1983, for the loss of their individual property rights without due process

of law.

II. FACTS

The facts, unless otherwise noted, are undisputed. In 1983, the BOCC enacted zoning

regulations and identified zone districts on a map of Elbert County, known as the “1983 map.” 

Two of the zoning districts used to designate property at that time were “A-Agricultural” and “A1.” In January of 1986, the BOCC amended the zoning regulations to delete the A-1 zoning

designation. 

Then, in September of 1993, the BOCC voted in favor of re-establishing the A-1

designation, after a public hearing. Plaintiffs assert, however, that the BOCC did not hold a

public hearing and, so, the A-1 designation was not properly reinstated. A few months later – in

November of 1993 – the BOCC adopted Resolution 93-125 that amended the zoning regulations

(as discussed in September of 1993) to effectuate the re-adoption of the A-1 designation. Then,

2

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 2 of 16
at a public meeting in January of 1994, the BOCC adopted a Resolution 94-04, which set forth

the procedure to be used to re-zone property from an A-Agricultural designation to an A-1

designation. Resolution 94-04 provides, in relevant part, that:

The location of the zoning areas hereby established is shown on the map entitled

“Official Zoning map of Elbert County”, dated July 5, 1983, (the “1983 map”)

which is hereby made, along with explanatory matter thereon, a part of this

Regulation. 

The 1983 map was, at some point thereafter, lost. The BOCC was aware of the missing

map by, at the latest, August of 1997. As such, the Elbert County Planning Department, working

under Planning Director Ken Wolf, recreated the zoning map based on historical information. 

After a new map was created for each township located in Elbert County, Mr. Wolf would

approve the newly-created map(s) without conducting a public hearing or other process. 

Plaintiffs contend that these 1997 maps – which it asserts were illegally implemented

without due process – were thereafter improperly enforced against Elbert County property

owners, including themselves. They argue that the BOCC knowingly misrepresented to the

public that the re-created 1997 maps were the official zoning maps of Elbert County when, in

fact, the “official” 1983 map was missing. Plaintiffs argue that the BOCC misrepresented the

maps in order to avoid a public hearing and avoid the issue of grand-fathering in preexisting uses. 

As such, Plaintiffs contend that the BOCC enforcement of the zoning designations contained on

the 1997 maps was illegal. The BOCC asserts, in response, that the updated 1997 maps did not

change the pre-existing zoning of any property in Elbert County including that the properties

subsequently purchased by Plaintiffs. The BOCC further contends that it is undisputed that the

Plaintiffs’ properties were zoned “A-Agriculture” on the 1983 map, and continued to be zoned

3

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 3 of 16
“A-Agriculture” until they were re-zoned, at Plaintiffs’ request, in 2004 and 2006.

Plaintiffs also assert that only the first six pages of the 1983 zoning regulations were

contained in the official record, and that the remainder of the original document “was nowhere to

be found.” Thus, Plaintiffs claim that in 1997 Mr. Wolf drafted (and recorded) a new document,

entitled “Elbert County Zoning Regulations,” that was likewise not subjected to a public hearing

and was not officially approved by the BOCC in their entirety. Plaintiffs contend that the

BOCC’s subsequent enforcement of the 1997 zoning regulations – as well as the zoning

designations on the 1997 maps – was also illegal. 

In May of 2004, Plaintiff Local Service Corporation (“LSC”) purchased a 1600-acre

parcel of property – now known as Wolf Creek Ranches and Wolf Creek Estates (collectively,

the “Wolf Creek Properties”) – with the intention of subdividing the property into 35-acre

parcels. The Elbert County Planning Director informed the owner of LSC that the property was

zoned “A” and that it would have to be re-zoned “A-1” in order to be subdivided. As a result,

LSC submitted two applications to re-zone the property. The Elbert County Planning

Commission considered and voted to approve the application for Wolf Creek Ranches on

September 23, 2004, and the BOCC approved the application on October 27, 2004. The Elbert

County Planning Commission considered and voted to approve the application for Wolf Creek

Estates on October 28, 2004, and the BOCC approved the application on November 17, 2004.

Plaintiff Emerald Properties LLC purchased a 320-acre parcel of property – now known

as Kiowa Creek Estates – in October of 2005. Plaintiffs Paul and Shauna Naftel (collectively,

the “Naftels”) personally guaranteed the purchase loan. Shortly thereafter, the property was

deeded to Plaintiff Onyx Properties LLC. Paul Naftel – the manager and majority shareholder of

4

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 4 of 16
Onyx Properties – was told by the Elbert County Planning Department that in order to subdivide

the property into eight parcels (at least 35-acres in size) he would need to file an application to

re-zone it from “A” to “A-1.” Plaintiff Onyx Properties submitted an application to re-zone the

property. The Elbert County Planning Commission recommended approval of the application to

rezone Kiowa Creek Estates on August 24, 2006. After a hearing on September 20, 2006, the

BOCC approved the application.

Then, in 2007, the BOCC prevailed in a zoning enforcement action in Elbert County

District Court enjoining Kenneth, Karen and Paul Rohrbach (the “Rohrbachs”) from operating a

commercial composting business on their real property located in Elbert County because its “AAgriculture” zoning designation did not allow such use. The Rohrbachs appealed and, in

September 2009, a panel of the Colorado Court of Appeals overturned the trial court’s ruling that

the BOCC had proved the zoning designation of the Rohrbachs’ property in Board of County

Commissioners of Elbert County v. Rohrbach, 226 P.3d 1184 (Colo. App. Sept. 3, 2009). The

Court of Appeals determined that the applicable zoning regulation (Resolution 94-04) 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. [Thus,

b]ecause 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. Consequently, 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. 

5

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 5 of 16
The case was remanded for a determination of the Rohrbach’s counterclaims against the

BOCC, including its procedural due process claim pursuant to 42 U.S.C. §1983. On February

17, 2015, the trial court ruled, following a bench trial, that the Rohrbachs had not established a

§1983 violation of procedural due process. In so doing, the trial court ruled that the “appellate

court did not rule as a matter of law that the zoning of the[ir p]roperty could not be established

without the 1983 map.” Rather, it found that the evidence revealed that the Rohrbachs’ property

had always been zoned “Agriculture,” and there was also no evidence presented demonstrating

that commercial composting was a use of right. Hence, the trial court ruled that the Rohrbachs

had no constitutionally protected property interest. And, even if there was, the court further ruled

the Rohrbachs “failed to establish that they suffered any procedural due process violation related

to the creation of zoning regulations affecting the[ir p]roperty” as it “was zoned ‘A’ or

agricultural before the [Rohrbachs] purchased the property.” [Doc #181-1]

In the meantime, Plaintiffs filed this lawsuit in June of 2010, following the Colorado

Court of Appeals ruling, in which they allege that they were improperly forced to re-zone their

real property – from “A-Agriculture” to an “A-1” designation – by Elbert County when they

sought to divide the properties into 35-acre parcels for development in 2004 and in 2006. 

Specifically, Plaintiffs assert a §1983 claim for the loss of their property rights, without due

process of law, by the alleged improper enactment and subsequent enforcement of the illegal

zoning regulations and related zoning map(s) against them. The Rohrbachs also filed a federal

lawsuit against the BOCC seeking damages under §1983 for enforcement of unconstitutional and

non-existent zoning regulations against them, which was consolidated into this case and then

dismissed as it was filed outside of the applicable statute of limitations time period. [Doc #95]

6

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 6 of 16
III. MOTION FOR SUMMARY JUDGMENT

The BOCC now seeks judgment in its favor on Plaintiffs’ individual §1983 claims for

violation of their right to due process. Specifically, the BOCC argues that: (1) each individual

Plaintiff cannot establish that they have a property interest; (2) the right to “being able to

subdivide the property into smaller parcels without going through the re-zoning process” is not a

constitutionally protected property interest; (3) this Court has no jurisdiction to entertain state

law attacks upon local legislation (such as zoning regulations) under the guise of a due process

claim; (4) because Plaintiffs were allowed to re-zone, they were not deprived of being allowed to

divide their property into smaller parcels (which is their claimed property interest); and (5) the

BOCC’s actions did not violate Plaintiffs’ due process rights. The BOCC also argues that

Plaintiffs’ claims are barred by the statute of limitations. 

IV. STANDARD OF REVIEW

Summary judgment is appropriate when the moving party can demonstrate that there is no

genuine issue of material fact and it is entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). If

there is no genuine issue of material fact in dispute, then a court must determine whether the

movant is entitled to judgment in its favor as a matter of law. See, e.g., Jenkins v. Wood, 81 F.3d

988, 990 (10th Cir. 1996); Celotex v. Catrett, supra, 477 U.S. at 322. 

V. STANDING OF INDIVIDUAL PLAINTIFFS 

As an initial matter, the BOCC argues several of the Plaintiffs are unable to allege a

constitutionally protected property interest because they were not the owners of the properties at

7

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 7 of 16
the time they applied to be re-zoned from an “A” to and “A-1” designation. The BOCC concedes

that Plaintiff LSC was the owner of the Wolf Creek Properties and was the applicant for the rezoning of those properties in 2004. However, as to Kiowa Creek Estates, the BOCC argues that

Onyx Properties was the sole owner of the property at the time of the re-zoning application in

2006. As such, it claims that neither Emerald Properties nor the Naftels had a protected property

interest in Kiowa Creek Estates and, thus, they should be dismissed as Plaintiffs in this action.

Plaintiffs, in response, do not dispute that Onyx Properties was the only owner in 2006, but they

assert that the Naftels were the owners and controlling shareholders of Onyx Properties and that

the owners/shareholders of a corporation may bring a constitutional claim of their entity in their

own right because they have a “direct personal interest” in this cause of action. 

Generally, any conduct harming a corporation confers standing on the corporation, not its

shareholders. Bartel v. Kemmerer City, 482 Fed.Appx. 323, 326, 2012 WL 1925549, 2 (10th

Cir. 2012)(not selected for publication)(quoting Bixler v. Foster, 596 F.3d 751, 756 (10th Cir.

2010) and Diva’s Inc. v. City of Bangor, 411 F.3d 30, 42 (1st Cir. 2005)(citing cases and holding

standing requirement applies to actions brought to redress injuries to corporation under §1983)).

“There is, however, an exception to this rule where the actions of the third party that injure the

corporation also cause injury to the shareholder which is unique to himself . . . as a shareholder

of the corporation and not suffered by the other shareholders.” Guides, Ltd. v. Yarmouth Grp.

Prop. Mgmt., Inc., 295 F.3d 1065, 1072 (10th Cir. 2002). Thus, the rule “does not bar corporate

owners from bringing suit if they have a direct, personal interest in a cause of action . . . even if

the corporation’s rights are also implicated.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d

1114, 1156 (C.A.10 (Okla.),2013), affirmed by Burwell v. Hobby Lobby Stores, Inc., ___ U.S.

8

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 8 of 16
___, 134 S.Ct. 2751, 189 L.Ed.2d 675 (Jun 30, 2014)(quoting Franchise Tax Bd. of California v.

Alcan Aluminum Ltd., 493 U.S. 331, 336, 110 S.Ct. 661, 107 L.Ed.2d 696 (1990)).

In determining the standing of Plaintiffs, I first note that they do not make an argument as

to the standing of Emerald Properties – except that it had an interest in the property “at some

point” – and, as such, I will dismiss Emerald Properties as a plaintiff in this case. As to Paul and

Shauna Naftel, I disagree with Plaintiffs that the Naftels, as the controlling shareholders of Onyx

Properties, have a direct personal interest in the cause of action sufficient to provide them

separate standing in addition to the standing of Onyx Properties. The fact that the Naftels

directed the “outlays” or payments made by Onyx Properties to pay for the costs associated with

the application to re-zone Kiowa Creek Estates is not, as a matter of law, a direct personal

interest in the redress of the alleged procedural due process violation here. See Bartel v.

Kemmerer City, supra, 482 Fed.Appx. at 326 (ruling that officers of general contractor lacked

standing to sue city on their individual behalf as the did not assert injury separate from the due

process injury of the corporation). 

Thus, I conclude that Plaintiffs Emerald Properties and Paul and Shauna Naftel do not

have standing to pursue this lawsuit in their individual capacities and, hence, I dismiss their

claims against the BOCC and dismiss them as parties to this lawsuit. 

VI. PROPERTY INTEREST

As to the merits of Plaintiffs’ §1983 claim, the BOCC first contends that the property

interest at issue in this case is not cognizable as a constitutionally protected interest. The

Fourteenth Amendment states that no state shall “deprive any person of . . . property[] without

9

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 9 of 16
due process of law.” U.S. Const. amend. XIV, § 1. “Procedural due process ensures the state

will not deprive a party of property without engaging fair procedures to reach a decision.” Hyde

Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000).

In evaluating a procedural due process claim, I first determine whether the defendant’s

actions deprived the plaintiff of a constitutionally protected property interest. Id. (quoting Bd. of

Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). To establish such an

interest, a state-law rule or understanding must give the recipient “a legitimate claim of

entitlement to [the benefit].” Bd. of Regents v. Roth, supra, 408 U.S. at 577. Property rights

recognized by the Fourteenth Amendment “are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as state law, rules or

understandings that secure certain benefits and that support claims of entitlement to those

benefits.” Id. Thus, “constitutionally protected property interests are created and defined by

statute, ordinance, contract, implied contract and rules and understandings developed by state

officials.” Nichols v. Bd. of Cnty. Comm’rs, 506 F.3d 962, 970 (10th Cir. 2007); see also 

Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm’rs, 633 F.3d 1022, 1026 (10th Cir. 2011)(noting

that the “identification of those benefits and the ‘legitimate claim of entitlement’ to them is

determined not by the Constitution, but largely by state law”)(quoting Eason v. Bd. of Cnty.

Comm’rs, 70 P.3d 600, 604-5 (Colo. App. 2003)). “To have a property interest in a benefit, a

person clearly must have more than an abstract need or desire for it. He must have more than a

unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of

Regents v. Roth, supra, 408 U.S. at 577. 

At oral arguments, Plaintiffs asserted that the property interest they claim was deprived or

10

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 10 of 16
taken by Elbert County (via application of its illegal regulation and maps) was “their right to

subdivide their property” as a “subset of their right of use.” The BOCC argues Plaintiffs’

claimed interest – the unencumbered right to divide their real property into 35-acres lots – is not

a constitutionally protected property interest. I agree with the BOCC that, contrary to Plaintiffs’

argument, ownership of real property does not, in and of itself, provide a constitutionally

protected property interest as a landowner faces numerous restrictions on the full use and

alienability of land.

While “the right to use property is fully protected by the Due Process Clauses of the

federal and state constitutions, [it] is subject to a proper exercise of the police power.” JordanArapahoe v. Bd. of Cnty. Comm’rs, supra, 633 F.3d at 1026 (quoting Eason v. Bd. of Cnty.

Comm’rs, supra, 70 P.3d at 605). Zoning is the most prominent police power restriction on land

use, but a municipality’s power to zone must be balanced against landowners’ rights. Id. In the

context of municipal land use, “the entitlement analysis presents a question of law.” Id. (quoting

Nichols v. Bd. of Cnty. Comm’rs, supra, 506 F.3d at 970).

Plaintiffs are, in essence, arguing that their right to use (in the form of the unencumbered

ability to subdivide) their property is unlimited, in that the map and the zoning regulations

regulating it are improper. However, the law in Colorado is clear that a constitutionally protected

property interest in the context of land use must derive from and is defined by “statute,

ordinance, contract, implied contract and rules and understandings developed by state officials.”

Nichols v. Bd. of Cnty. Comm’rs, supra, 506 F.3d at 970 (quoting Hulen v. Yates, 322 F.3d 1229,

1240 (10th Cir. 2003)). Plaintiffs do not refer me to Colorado law providing them with the

property right to subdivide their property. Plaintiffs instead argue that a protectable property

11

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 11 of 16
right extends to the full rights contained in the property “bundle of sticks” under Bd. of Regents

v. Roth, supra, 408 U.S. at 572 (noting that property interests protected by procedural due

process “extend well beyond actual ownership of real estate”); see also Dickman v. Comm’r of

Internal Revenue, 465 U.S. 330, 336, 104 S.Ct. 1086, 79 L.Ed.2d 1086 (1984)(ruling that the use

of money is itself a legally protectable property interest in a non-constitutional gift tax case). 

While ownership in property provides a basis for a property interest, it does not – in and of itself

– create or define one for procedural due process purposes. Again, such interest is established, in

Colorado, by state law. Jordan-Arapahoe v. Bd. of Cnty. Comm’rs, supra, 633 F.3d at 1026

(court “must turn to state law in understanding the scope of property rights in land ownership”). 

Furthermore, I agree with the BOCC that the evidence is undisputed that the properties

were, at the time of purchase by Plaintiffs, zoned A-Agriculture. While it is clear that the BOCC

cannot produce the official 1983 map that would be definitive of that designation, it has provided

other undisputed evidence that the base zoning applicable to parcels sized 60 acres or larger

located in Elbert County (as the properties here) was “A-Agriculture” and, likewise, that the area

located north of Kiowa (as the properties here) was zoned Agriculture. Plaintiffs, in response, 

provide no evidence that any of the property at issue was designated differently or had been

re-zoned prior to the applications at issue in 2004/2006. 

Therefore, I conclude that Plaintff have not articulated a constitutionally protected

property interest they were deprived of by the BOCC’s action. Therefore, they are unable to

make a procedural due process claim under 42 U.S.C. §1983. Nichols v. Bd. of Cnty. Comm’rs,

supra, 506 F.3d at 969 (in order to prevail on a procedural due process claim under §1983, “a

plaintiff must first establish that a defendant’s actions deprived [the] plaintiff of a protectible

12

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 12 of 16
property interest”)(quoting Hyde Park v. Santa Fe City Council, supra, 226 F.3d at 1210)).

V. DUE PROCESS

However, even if Plaintiffs have articulated a cognizable property interest, I agree with

the BOCC that they have not shown that the BOCC’s actions deprived them of that property

interest, as a matter of law, by violating their rights to procedural due process. 

If a plaintiff can show a constitutionally protected property interest, the Court must then

consider whether the plaintiff was afforded the appropriate level of process in the depravation of

that interest. See Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). “The

fundamental requirement of due process is the opportunity to be heard at a meaningful time and

in a meaningful manner.” Stanko v. Maher, 419 F.3d 1107, 1115 (10th Cir. 2005)(citation

omitted).

The BOCC argues that Plaintiffs were provided due process in the consideration and

ruling on their application to re-zone their property from an “A-Agricultural” to “A-1”

classification. Plaintiffs, in response, do not dispute that the hearing and notice given to them in

the re-zoning application process was sufficient; rather, they argue that the BOCC violated their

right to due process by requiring them to re-zone their property via enforcement of zoning

regulations and maps that Elbert County knew were improper.

In this case, Plaintiffs take issue with the due process provided when the underlying

regulations and maps were adopted by Elbert County; specifically, the re-adoption of the A-1

zoning designation in 1993, and the creation of the replacement zoning maps in 1997. However,

those actions are quasi-legislative in nature – in that those acts applied to all property within a

13

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 13 of 16
particular district – and, as such, procedural due process does not apply. See Bi-Metallic Inv. Co.

v. State Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 60 L.Ed. 372 (1915). Furthermore,

to the extent that Plaintiffs aver that those actions did not comply with Colorado state statutes

(specifically, Colorado Revised Statutes §§30-28-111 though 116) such alleged violation is not

actionable under §1983. Moreover, Plaintiffs cannot use a due process violation claim to

challenge the validity of zoning legislation under state law. See Norton v. Village of Corrales,

103 F.3d 928, 933–34 (10th Cir. 1996)(affirming the district court’s dismissal of the due process

claims even assuming, arguendo, that the underlying ordinances were invalid for failure to

comply with state law publication requirements).

 In addition, Plaintiffs had available administrative and judicial remedies to challenge

Elbert County which provided adequate due process. First, Plaintiffs do not contest that the rezoning application process and hearing, which resulted in determinations in Plaintiffs’ favor,

provided sufficient due process. In addition, it is undisputed that Plaintiffs had judicial remedies,

under Colorado law, to redress any violation of their rights caused by Elbert County’s

requirement that they re-zone their properties. Specifically, Plaintiffs had the available remedies

of judicial review under Colo. R. Civ. P. 106(a)(4), as well as a declaratory judgment action

under Colo. Rule Civ. P. 57. See generally Native American Rights Fund, Inc. v. City of

Boulder, 97 P.3d 283, 287 (Colo. App. 2004).

Plaintiffs argue that existence of such remedies is irrelevant under Monroe v. Pape, 365

U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which ruled that a plaintiff’s state law remedies

need not be exhausted before pursuing a §1983 claim for unconstitutional search and seizure. To

the contrary, the existence of state remedies is, indeed, relevant to a §1983 procedural due

14

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 14 of 16
process claim because such constitutional violation is not complete “unless and until the State

fails to provide due process,” so then, “to determine whether a constitutional violation has

occurred, it is necessary to ask what process the State provided, and whether it was

constitutionally adequate,” including “any remedies for erroneous deprivations provided by

statute or tort law.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100

(1990). Based on this authority, I reject Plaintiffs’ unsupported argument that the remedies

provided by state law are insufficient in this case because they do not provide for damages or

monetary recovery.

Thus, I conclude that Plaintiffs have not articulated a cognizable property interest that

was deprived by the BOCC’s actions and, even if they had, those actions did not deprive them of

that property interest via violation of procedural due process. The BOCC is entitled to dismissal

of Plaintiffs’ procedural due process claim, under 42 U.S.C. §1983, as a matter of law.

VI. VOID FOR VAGUENESS

I note that to the extent that Plaintiffs’ complaint contains a constitutional void-forvagueness challenge, the parties agreed at oral arguments that any such challenge does not

constitute an independent legal claim or theory of recovery. Rather, such challenge “lives or

dies” on the procedural due process claim, which, I have concluded, is not legally cognizable

under these circumstances and undisputed facts.

VII. STATUTE OF LIMITATIONS

Finally, I do not reach BOCC’s final argument that it is entitled to summary judgment in

its favor because Plaintiffs’ §1983 claim for violation of procedural due process is time-barred

15

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 15 of 16
based on: 1) new deposition testimony that Plaintiff LCS knew or had reason to know of the

injury claimed here in 2004; and 2) the lack of evidence that Plaintiff Onyx Properties made any

attempt to investigate the zoning designation or the validity of the zoning regulations and maps in

2006. 

ACCORDINGLY, for the foregoing reasons, I GRANT the Motion for Summary

Judgment filed by Defendant, Board of County Commissioners of Elbert County (the “BOCC”).

[Doc #141] In so doing, I DISMISS Plaintiffs Emerald Properties LLC, and Paul and Shauna

Naftel, as parties for lack of standing. I ENTER JUDGMENT as a matter of law in favor of

Defendant, and against Plaintiffs Onyx Properties LLC and Local Service Corporation, by and

through its Chapter 11 bankruptcy trustee, Simon E. Rodriguez. I AWARD COSTS to

Defendant. 

Dated: March 24 , 2015, in Denver, Colorado.

BY THE COURT:

 s/Lewis T. Babcock 

Lewis T. Babcock, Judge

16

Case 1:11-cv-02321-LTB-KLM Document 16 Filed 03/24/15 USDC Colorado Page 16 of 16