UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

BOBBY G. WARDEN, 

 Plaintiff - Appellant, 

v. 

CITY OF GROVE, OKLAHOMA, 

 Defendant - Appellee. 

No. 14-5114 

(D.C. No. 4:13-CV-00398-CVE-PJC) 

(N.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges. 

 

 Bobby G. Warden appeals from the district court’s order dismissing his due 

process and equal protection claims because they are not ripe for judicial review. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. BACKGROUND 

 Mr. Warden sought to develop a mobile home park in Grove, Oklahoma (the 

City). He knew he needed to comply with a City ordinance requiring him to poll all 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 15, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-5114 Document: 01019431505 Date Filed: 05/15/2015 Page: 1 
- 2 - 

of the property owners within three-hundred feet of the proposed development and 

obtain project approval from at least 75 percent of them. Shortly before Mr. Warden 

began polling, the City passed an ordinance that potentially eliminated this 

requirement. Although Mr. Warden believed he was no longer required to poll, he 

nonetheless attempted to comply because the City allegedly told him that “nothing 

has changed.” Aplee. Supp. App., Vol. 4, at 430. The City said it told Mr. Warden 

that “[i]t was not clear” whether the polling requirement still existed. Id., Vol. 1, 

at 112. When Mr. Warden failed to poll all of the neighboring property owners, he 

ceased efforts to develop the property and instead sued the City, which had not even 

considered whether to approve the project. 

 In addition to the polling ordinance, Mr. Warden was required to file a site 

plan application with the Planning and Zoning Commission (the Commission), see id. 

at 128, which must be approved to seek a permit to commence construction, see id. 

at 129. If Mr. Warden believed his project should be excused from this requirement, 

he could seek a variance from the Board of Adjustment (the Board). See Aplt. App. 

at 94. Mr. Warden filed neither an application, see Aplee. Supp. App., Vol. 1, 

at 80-81, nor a request for a variance, see id. at 89-90. 

 The City moved for summary judgment. The district court dismissed 

Mr. Warden’s federal due process and equal protection claims challenging the polling 

requirement, finding them unripe because he “has not received a final decision 

regarding his proposed mobile home development.” Aplt. App. at 299. 

Appellate Case: 14-5114 Document: 01019431505 Date Filed: 05/15/2015 Page: 2 
- 3 - 

The district court noted Mr. Warden “has not even applied for a permit for his 

development, as [he] has not sought the approval of the Planning Commission, a 

prerequisite to applying for a permit[,]” nor were there any “evidentiary materials 

suggesting that [he] has sought a variance [from the Board].” Id. This failure 

“prevented [the City] from issuing a final decision on whether [he] would be allowed 

to develop his property.” Id. The court further found that seeking a permit or 

variance “could not be considered futile, given that [City] officials were unsure if the 

polling requirement was still in force or applicable.” Id. Thus, the court held that 

Mr. Warden’s “federal substantive due process and equal protection claims are unripe 

and should be dismissed.” Id. at 300. The court also dismissed his procedural due 

process claim because the City “has not even been given the opportunity to fail to 

provide [Mr. Warden] with due process.” Id.

1

 

II. ANALYSIS 

“The issue of ripeness is reviewed de novo.” Sierra Club v. U.S. Dep’t of

Energy, 287 F.3d 1256, 1263 (10th Cir. 2002). “A claim is not ripe for adjudication 

if it rests upon contingent future events that may not occur as anticipated, or indeed 

may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal 

quotation marks omitted). This is precisely the situation before us. 

 1

 Mr. Warden also alleged violation of his First Amendment rights and 

violations of the Oklahoma Constitution and state laws. The district court granted 

summary judgment on the merits of the First Amendment claim and declined to 

exercise supplemental jurisdiction over the state law claims. Mr. Warden does not 

appeal these rulings. 

Appellate Case: 14-5114 Document: 01019431505 Date Filed: 05/15/2015 Page: 3 
- 4 - 

Mr. Warden argues that but for “the offending ‘polling provision’ . . . [he 

would have been able] to proceed with the development of the desired residential 

mobile home park that otherwise would have been allowed by the zoning code of the 

City,” Aplt. Opening Br. at 8, and his claims are therefore ripe. 

Mr. Warden argues he would have been denied a permit because of the polling 

requirement, but that this is not clear for several reasons: (1) there may be grounds 

other than non-compliance with the polling requirement to deny a permit; (2) the 

Board might grant a variance; (3) the polling requirement may be determined to have 

been repealed; (4) the City has not denied Mr. Warden a permit; and (5) Mr. Warden 

has presented no evidence that he will in fact be denied a permit. 

We conclude that the claims were properly dismissed for lack of Article III 

ripeness. “‘Where a plaintiff’s action is based on a contingency, it is unlikely that 

the parties’ interests will be sufficiently adverse to give rise to a case or controversy 

within the meaning of Article III.’” Jordan v. Sosa, 654 F.3d 1012, 1032 (10th Cir. 

2011) (quoting Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 411-12 (3d 

Cir. 1992)). Mr. Warden’s claims were based on contingencies and properly 

dismissed. 

III. CONCLUSION 

 The judgment of the district court is affirmed. 

 Entered for the Court 

 Scott M. Matheson, Jr. 

 Circuit Judge 

Appellate Case: 14-5114 Document: 01019431505 Date Filed: 05/15/2015 Page: 4