NORTH MILL STREET, LLC, Plaintiff - Appellant, v. THE CITY OF ASPEN; THE ASPEN CITY COUNCIL, Defendants - Appellees.
No. 20-1130
United States Court of Appeals for the Tenth Circuit
July 27, 2021
PUBLISH. FILED United States Court of Appeals Tenth Circuit July 27, 2021 Christopher M. Wolpert Clerk of Court. Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-00188-PAB-GPG)
Josh A. Marks, Berg Hill Greenleaf & Ruscitti, Boulder, Colorado, for Defendants - Appellees.
Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
MATHESON, Circuit Judge.
North Mill Street, LLC (NMS) owns commercial property in Aspen, Colorado. It sued the City of Aspen and the Aspen City Council (collectively, the City) in federal court. The complaint alleged several claims, including that the City‘s changes to Aspen‘s
I. BACKGROUND
A. Factual History
NMS owns Mill Street Plaza (MSP), a parcel of commercial real estate in Aspen, Colorado. MSP is located within a Service Commercial Industrial (SCI) zoning district. When NMS‘s predecessor in interest purchased the property in 2007, free
1. Ordinance 29
In 2017, the Aspen City Council adopted Ordinance 29. Ordinance 29 amended Chapter 26.710 of the Aspen Land Use Code (LUC) to eliminate FMR housing as a permitted conditional use within the SCI zoning district.3
Section 26.310.040 of the LUC provides the standards the City must consider when amending the LUC, as it did with Ordinance 29. The standards include:
- Whether the objectives of the proposed amendment further[] an adopted policy, community goal, or objective
of the City including, but not limited to, those stated in the Aspen Area Community Plan, and - Whether the objectives of the proposed amendment are compatible with the community character of the City and in harmony with the public interest and the purpose and intent of this Title.
LUC § 26.310.040.
In the resolution adopting Ordinance 29, the City Council found that the amendments to the LUC prohibiting FMR development in the SCI zone met or exceeded these standards. App., Vol. 1 at 101.
2. Rezoning Application
After Ordinance 29 was adopted, NMS filed a rezoning application with the City‘s Community Development Department (CDD).4 The application requested that the City rezone MSP to a Mixed Use zoning district. Parcels that are zoned for Mixed Use may combine commercial uses with FMR and affordable housing units.
The CDD staff prepared a report (the CDD Report) recommending denial of the rezoning application. The CDD Report considered the review criteria for rezoning set forth in Section 26.310.090 of the LUC. That section provides, In reviewing an amendment to the Official Zone District Map, the City Council and the Planning and Zoning Commission shall consider, among other things:
Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land uses and neighborhood characteristics; and - Whether the proposed amendment is consistent and compatible with the community character in the City and in harmony with the public interest and the intent of [the LUC].
LUC § 26.310.090(a), (d). The staff found that the rezoning proposal failed to meet either criterion. App., Vol. 2 at 38-41.
The CDD Report also found the loss of SCI-zoned land would run counter to the goals of the Aspen Area Community Plan (AACP) and the Civic Center Master Plan (CCMP). According to the Report, [t]hough not a regulatory document, the [AACP] provides aspirational guidance for long term goals of the Aspen community. Id. at 30. The CCMP, which was adopted by the City Council in 2006, is a regulatory document that contains a section relating to sustainable locally serving businesses. Id. at 30.
The City‘s Planning and Zoning (P&Z) Commission, having considered the CDD Report, adopted a resolution recommending that the City Council should deny the rezoning application (the P&Z Resolution). The P&Z Resolution agreed with and adopted the CDD Report‘s findings. It found:
[P]ursuant to Land Use Code Section 26.310.090(A) the rezoning proposal is not compatible with surrounding zone districts and land uses, when considering existing land use and neighborhood characteristics; and, the Planning and Zoning Commission further finds that the proposed rezoning is inconsistent with the goals and statements of the Aspen Area Community Plan (AACP), the 2006 Civic Center Master Plan, and the 2018 Commercial, Lodging, and Historic
District Design Standards and Guidelines—River Approach Area . . . .
Id. at 52. The City Council, acting on the P&Z Commission‘s recommendation, denied the rezoning application.
3. PD Review
Planned Development (PD) review is a process that allows for the site specific development of mixed land uses in circumstances that warrant variation from the standard permitted zone district land uses. App., Vol. 1 at 96-97.
The purpose of Planned Development review is to encourage flexibility and innovation in the development of land which, [among other things,] [p]romotes the purposes, goals and objectives of applicable adopted regulatory plans, [and] [a]chieves a more desirable development pattern, a higher quality design and site planning, a greater variety in the type and character of development and a greater compatibility with existing and future land uses than would be possible through the strict application of the zone district provisions.
LUC § 26.445.010. The LUC sets out a detailed procedure through which a landowner may submit a proposal for a specific Planned Development. See id. ch. 26.445.
In PD review, [a] development application may request variations in the allowed uses permitted in the zone district. Id. § 26.445.060. Section 26.445.060 of the LUC provides that the City shall consider the following four criteria in determining whether to vary existing zoning restrictions for a Planned Development:
(a) The proposed use variation is compatible with the character of existing and planned uses in the project and surrounding area. In meeting this standard, consideration shall be given to the existence of similar uses in the immediate vicinity, as well as how the proposed uses may enhance the project or immediate vicinity.
(b) The proposed use variation is effectively incorporated into the project‘s overall mix of uses. In meeting this standard, consideration shall be given to how the proposed uses within a project will interact and support one another.
(c) The location, size, design, and operating characteristics of the proposed use variation minimizes adverse effects on the neighborhood and surrounding properties.
(d) The proposed use variation complies with applicable adopted regulatory plans.
Id. Section 26.445.060 further specifies that [t]he permitted and conditional uses allowed on the property according to its zoning shall be used as a guide, but not an absolute limitation, to the land uses which may be considered during the review. Id.
Although NMS applied to rezone MSP for Mixed Use, it has not submitted a development application for PD review.
B. Procedural History
Rather than seek PD review, NMS sued the City of Aspen and the Aspen City Council in federal district court.5 NMS‘s amended complaint asserted Fifth and Fourteenth Amendment substantive due process, equal protection, and regulatory takings claims under
The City moved to dismiss the amended complaint under
The district court agreed with the City and dismissed the amended complaint without prejudice for lack of subject matter jurisdiction under Rule 12(b)(1).7
A. Legal Background
1. Regulatory Takings
The
Outside of these categories, when a regulation
impedes the use of property without depriving the owner of all economically beneficial use, a taking may still 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.
Murr v. Wisconsin, 137 S. Ct. 1933, 1942 (2017) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). The general rule . . . is that while property may be regulated to a
2. Ripeness of a Takings Claim
a. The finality requirement
Ripeness doctrine draws both from Article III limitations on judicial power and prudential reasons for refusing to exercise jurisdiction. Utah Republican Party v. Cox, 892 F.3d 1066, 1092 (10th Cir. 2018) (quotations omitted). Article III and prudential ripeness are both concerned with whether a case has been brought prematurely, but they protect against prematureness in different ways and for different reasons. Simmonds v. I.N.S., 326 F.3d 351, 357 (2d Cir. 2003).
Until recently, the Supreme Court recognized two independent prudential hurdles to a regulatory takings claim brought against a state entity in federal court. Suitum v. Tahoe Reg‘l Plan. Agency, 520 U.S. 725, 733-34 (1997). In Williamson County, the Court held that a regulatory takings claim is not ripe until the plaintiff has (1) received a final decision regarding the application of the [challenged] regulations to the property at issue from the government entity charged with implementing the regulations, and (2) sought compensation through the procedures the State has provided for doing so. Id. at 186, 194. In 2019, the Court overruled the second requirement in Knick, 139 S. Ct. at 2167. But Williamson County‘s finality requirement remains. Id. at 2169.
The finality requirement is satisfied when there is no question about how the regulations at issue apply to the particular land in question. Id. at 2230 (alterations omitted) (quoting Suitum, 520 U.S. at 739). A regulatory takings claim is therefore likely to have ripened once [(1)] it becomes clear that the agency lacks the discretion to permit any development, or [(2)] the permissible uses of the property are known to a reasonable degree of certainty. Palazzolo, 533 U.S. at 620.
The Supreme Court recently explained that the finality requirement is relatively modest and nothing more than de facto finality is necessary. Pakdel, 141 S. Ct. at 2230. It is not an administrative exhaustion requirement. Id. at 2231. That is, it does not require compliance with an agency‘s deadlines and other critical procedural rules. Id. at 2230 (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)). But a plaintiff‘s failure to properly pursue administrative procedures may render a claim unripe if avenues still remain for the government to clarify or change its decision. Id. at 2231.
Some of our sister circuits have recognized futility as an exception to the Williamson County final decision requirement.8 We have never explicitly done so. In Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717, 721-22 (10th Cir. 1989), abrogated on other grounds by Fed. Lands Legal Consortium ex rel. Robart Est. v. United States, 195 F.3d 1190, 1195 (10th Cir. 1999), we assumed without deciding that futility may be an exception to the final decision requirement. We also followed that course in an unpublished decision. See Dakota Ridge Joint Venture v. City of Boulder, 162 F.3d 1172 (Table), 1998 WL 704694 (10th Cir. 1998) (unpublished).
B. Analysis
We first discuss (1) whether the district court lacked subject matter jurisdiction over NMS‘s claims for lack of ripeness. As explained below, because Williamson County‘s finality requirement is prudential, not jurisdictional, we conclude that the district court erred by dismissing the amended complaint for lack of jurisdiction. We then address (2) whether NMS‘s claims nonetheless should be dismissed due to lack of
1. Article III Jurisdiction
The district court concluded that it lacked subject matter jurisdiction over NMS‘s claims because NMS has not pursued PD review and thus has not received a final decision from the City. The court therefore dismissed the amended complaint under Rule 12(b)(1). Although we agree that NMS has failed to satisfy Williamson County‘s finality requirement, we do not agree that the district court lacked Article III subject matter jurisdiction. But we hold dismissal was proper for lack of prudential ripeness.
a. Is the Williamson County finality rule jurisdictional?
The Supreme Court has said the existence of a discretionary procedure by which a takings plaintiff may regain . . . beneficial use of his land goes only to the prudential ‘ripeness’ of his challenge. Lucas, 505 U.S. at 1013. The Court later described Williamson County‘s ripeness requirements as two independent prudential hurdles. Suitum, 520 U.S. at 733-34. And the Court has recognized, in addressing Williamson County‘s (now defunct) state-litigation requirement, that such prudential considerations are not, strictly speaking, jurisdictional. Horne v. Dep‘t of Agric., 569 U.S. 513, 526 (2013) (citing Stop the Beach Renourishment, Inc. v. Fla. Dep‘t of Env‘t Prot., 560 U.S. 702, 729 & n.10 (2010)). This is so because a claim is ripe insofar as Article III standing is concerned when the plaintiff has been deprived of property. Stop the Beach Renourishment, 560 U.S. at 729 n.10; see Horne, 569 U.S. at 526 n.6 (A ‘Case’
In Bateman v. City of West Bountiful, we stated that whether a claim is ripe for review bears on the court‘s subject matter jurisdiction under Article III of the Constitution, and a ripeness challenge, like most other challenges to a court‘s subject matter jurisdiction, is treated as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). 89 F.3d 704, 706 (10th Cir. 1996). We then applied the Williamson County ripeness test within this jurisdictional framework, without referencing the Supreme Court‘s earlier statement in Lucas about prudential ripeness. Id. at 706-08; see
The tension between Bateman and Supreme Court precedent has caused significant confusion in our circuit. In SK Finance SA v. La Plata County, Board of County Commissioners, we described Williamson County‘s ripeness requirements as bear[ing] on the court‘s subject matter jurisdiction. 126 F.3d 1272, 1275-76 (10th Cir. 1997) (quoting Bateman, 89 F.3d at 706). Then, in B. Willis, C.P.A., Inc. v. BNSF Railway Corp., we treated Williamson County as prudential, stating that where a plaintiff asserts a ‘genuine case or controversy,’ ripeness implicates only prudential concerns. 531 F.3d 1282, 1299 n.20 (10th Cir. 2008). And in Alto Eldorado Partnership v. County
Some district courts within our circuit, following Supreme Court precedent, have treated Williamson County as prudential. E.g. River N. Props., LLC v. City & Cnty. of Denver, No. 13-cv-1410-CMA-CBS, 2014 WL 1247813, at *4-*6 (D. Colo. Mar. 26, 2014); Race v. Bd. of Cnty. Comm‘rs of the Cnty. of Lake, No. 15-cv-1761-WJM-KLM, 2016 WL 1182791, at *2 (D. Colo. Mar. 28, 2016); Lech v. Jackson, No. 16-cv-01956-PAB-MJW, 2018 WL 10215862, at *5 (D. Colo. Jan. 8, 2018). But others have relied on Bateman to dismiss takings claims for lack of subject matter jurisdiction under Rule 12(b)(1) when Williamson County was not satisfied. See River N. Props., 2014 WL 1247813 at *5 n.5 (collecting cases).
The Supreme Court‘s statements in Lucas, Suitum, and Horne control. When the Supreme Court speaks, it (of course) supercedes our prior case law. Hydro Res., Inc. v. E.P.A., 608 F.3d 1131, 1163 (10th Cir. 2010) (en banc).11 Although decisions of prior panels, absent en banc consideration, generally bind us, that is not so when a subsequent Supreme Court decision contradicts or invalidates our prior analysis.12 United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021) (quotations omitted). We follow the
Supreme Court decisions and hold that Williamson County‘s ripeness test is prudential, not jurisdictional.
b. Article III ripeness
Unlike the district court, we conclude that NMS‘s allegations are sufficient to satisfy Article III ripeness requirements.
If a threatened injury is sufficiently ‘imminent’ to establish standing, the constitutional requirements of the ripeness doctrine will necessarily be satisfied. Awad v. Ziriax, 670 F.3d 1111, 1124 (10th Cir. 2012) (quotations and alteration omitted). Article III standing requires the plaintiff to ‘have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’ Baker v. USD 229 Blue Valley, 979 F.3d 866, 871 (10th Cir. 2020) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual and imminent, not conjectural or hypothetical. Id. (quotations omitted).
Whether or not the City‘s adoption of Ordinance 29 and denial of NMS‘s rezoning application caused a regulatory taking, NMS adequately alleged that it suffered economic injury that is fairly traceable to those decisions. Ordinance 29 places NMS at a
2. Prudential Ripeness
The district court erred by dismissing NMS‘s complaint for lack of jurisdiction under Rule 12(b)(1), but we otherwise agree with the court‘s ripeness analysis and affirm on the alternative ground that NMS‘s claims are prudentially unripe. See VR Acquisitions, LLC v. Wasatch Cnty., 853 F.3d 1142, 1146 (10th Cir. 2017) ([D]espite the district court‘s explicit reference to Article III standing, we conclude the district court actually dismissed based on a finding that VRA lacks prudential standing.); Brumfiel v. U.S. Bank, 618 F. App‘x 933, 936 (10th Cir. 2015) (unpublished) (affirming Rule 12(b)(1) dismissal without prejudice on alternative ground that plaintiff lacked prudential standing) (cited for persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A)).
NMS‘s regulatory takings claim is not prudentially ripe. Although its rezoning application was denied, avenues still remain for the government to clarify or change its decision. Pakdel, 141 S. Ct. at 2231. Specifically, NMS has not obtained a final
a. Rule 12(b)(6) and standard of review
Prudential ripeness is properly analyzed under Rule 12(b)(6) rather than Rule 12(b)(1) because it does not implicate subject matter jurisdiction. See VR Acquisitions, 853 F.3d at 1146 n.4 (collecting cases); Kerr v. Polis, 930 F.3d 1190, 1194 (10th Cir. 2019) (Plaintiffs argue that in light of the Supreme Court‘s decision in Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), the district court erred in examining these prudential concerns on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. We agree.), vacated & reh‘g en banc granted 977 F.3d 1010 (2020); Sherman v. Town of Chester, 752 F.3d 554, 560-61 (2d Cir. 2014) (analyzing Williamson County ripeness under Rule 12(b)(6)); Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012) (same).
Under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Doe v. City of Albuquerque, 667 F.3d 1111, 1118 (10th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). NMS bears the burden of showing that its claims are prudentially ripe for judicial review. See Los Alamos Study Grp. v. U.S. Dep‘t of Energy, 692 F.3d 1057, 1064 (10th Cir. 2012). We review the district court‘s order of dismissal premised on lack of prudential ripeness de novo. See Alto Eldorado P‘ship, 634 F.3d at 1173.
NMS urges us to adopt a “futility exception” to Williamson County‘s finality requirement and thereby excuse its failure to pursue the PD process. We think, however, that futility is better viewed as part of the finality analysis rather than an exception to the finality requirement. Williamson County requires “nothing more than de facto finality.” Pakdel, 141 S. Ct. at 2230. A plaintiff may demonstrate de facto finality by showing (1) “the agency lacks the discretion to permit any development,” or (2) “the permissible uses of the property are known to a reasonable degree of certainty.” Palazzolo, 533 U.S. at 620. The finality requirement does not require landowners to exhaust administrative procedures, or to “submit applications for their own sake.” Id. at 621. Instead, a “final decision” has been reached and a regulatory takings claim becomes prudentially ripe for judicial resolution “[o]nce the government is committed to a position.” Pakdel, 141 S. Ct. at 2230. So a showing that pursuit of further administrative relief would be futile would satisfy the finality requirement.13
c. Application
This case should be dismissed on prudential ripeness grounds because NMS has failed to adequately plead that “the agency lacks the discretion to permit any
Drawing on Palazzolo, NMS argues that (i) pursuing PD would be futile because the City lacks discretion, as a matter of municipal law, to allow any FMR development at MSP; and (ii) the City‘s actions and statements make it reasonably certain that no FMR development will be allowed at MSP—that is, that the City has “dug in its heels.” See Murphy v. New Milford Zoning Comm‘n, 402 F.3d 342, 349 (2d Cir. 2005). Neither argument is persuasive.14
i. Discretion
In NMS‘s view, the City lacks discretion to approve FMR development through the PD process because (1) Ordinance 29 prohibits FMR development and (2) the City is bound by the findings it made in denying the rezoning application. We disagree.
1) Ordinance 29
The LUC, as amended by Ordinance 29, states, “No new Free-Market Residential units may be established” within the SCI zone. App., Vol. 1 at 110. NMS argues this language forecloses the City from approving any FMR development, including through the PD process. But nothing in Ordinance 29 eliminated or changed the PD process or standards for PD review, which are codified in a different section of the LUC. See
2) Rezoning findings
The CDD Report and the P&Z Resolution included findings that FMR development at MSP is not compatible with the City‘s “community character” or surrounding land uses, and that such development would be inconsistent with the AACP and CCMP.16 NMS contends these findings closely mirror two of the criteria for granting a variance in the PD process:
“The proposed use variation is compatible with the character of existing and planned land uses in the project and surrounding area,” and - “The proposed use variation complies with applicable adopted regulatory plans.”
First, nothing in the LUC prohibits the City from revisiting the findings and recommendations made by the CDD staff. NMS has not explained why staff findings made during the rezoning process would bind the City in the PD process. The purpose of PD review is to “encourage flexibility and innovation in the development of land” through holistic consideration of concrete development proposals.
NMS argues the City must find that any PD application meets all four criteria we set forth above, and that failure to meet any is fatal to the application. It relies in part on Section 26.445.040, which details a three-step procedure for PD review before the P&Z Commission and the City Council. That section provides: “If use variations are proposed, the proposed development shall also comply with Section 26.445.060, Use Variation Standards.”
* * * *
NMS offers no reason why this staff report statement would require the City Council to reject all future development proposals that involve any amount of FMR development.
ii. Reasonable Degree of Certainty
Even when a municipality retains some discretion to grant a rezoning request, the finality requirement may be satisfied if “the permissible uses of the property are known to a reasonable degree of certainty.” Palazzolo, 533 U.S. at 620. For example, pursuing further administrative procedures may not be necessary when the agency “has dug in its heels and made clear that all such applications will be denied.” Murphy, 402 F.3d at 349. NMS argues that the City‘s actions thus far—adopting Ordinance 29 and rejecting NMS‘s rezoning application—show it is reasonably certain the City will not approve any PD application that includes FMR development. We are unpersuaded.
As we observed in Landmark, “it is clear that the best support for a claim of futility is completion of the steps mandated by Williamson County and Yolo County: unsuccessful pursuit of either a variance or a proposal for less intense development.” 874 F.2d at 722.18 Put differently, the best way for NMS to demonstrate the City is likely
1) Ordinance 29
The City‘s adoption of Ordinance 29 does not make it reasonably certain that NMS‘s PD proposal will be denied. Ordinance 29 changed the zoning laws to prohibit FMR development as a conditional use on all SCI-zoned properties, not just MSP.19 Ordinance 29 reflects a general policy judgment that FMR should no longer be allowed within the SCI zone as a conditional use. It did not definitively determine the type or intensity of development that may be allowed at MSP specifically.
2) Rezoning application
The only application that NMS submitted was a request to rezone MSP as Mixed Use. The proposed rezoning would have had a far wider-reaching effect than just allowing limited FMR development following PD review. NMS alleged in its amended complaint that Mixed Use uses would have included “office, formula retail, services, both general and specialty retail uses; as well as free market residential and affordable housing, which could be combined on one parcel or within one building.” App., Vol. 1 at 55-56. Rezoning the property as Mixed Use would have allowed “single family
The City‘s rejection of such a sweeping request sheds little light on the amount and type of FMR development it might ultimately approve when faced with a more narrow, concrete PD proposal. That is why a final decision generally requires “an initial rejection of a particular development proposal,” and a “definitive action by local authorities indicating with some specificity what level of development will be permitted on the property in question.” SK Fin., 126 F.3d at 1276 (quoting Landmark, 874 F.2d at 720.); see Yolo Cnty., 477 U.S. at 353 n.9 (“Rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews.“).
The standards for PD applications are more flexible than the standards for rezoning. Compare
Neither the passage of Ordinance 29 nor the denial of NMS‘s rezoning application shows that the City has come to a “final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” Williamson Cnty., 473 U.S. at 191. NMS has not carried its burden to demonstrate that “there is no question about how the regulations at issue apply to the particular land in question.” Pakdel, 141 S. Ct. at 2230 (alterations omitted) (quoting Suitum, 520 U.S. at 739). It therefore has not met the final decision requirement or shown that this case is prudentially ripe.
3. Non-Takings Claims
NMS argues that, even if its takings claim is unripe, its declaratory judgment and “reverse spot zoning” claims should not have been dismissed because they rely in part on facts and law that are independent of the takings analysis.21 We disagree.
a. Declaratory judgment
NMS‘s declaratory judgment claim rests on the same factual and legal bases as its other constitutional claims. It asserts the same constitutional violations, but seeks a different remedy. Specifically, Count One of the amended complaint seeks a declaration that Ordinance 29 is invalid and unenforceable because it runs afoul of the Substantive
b. Reverse spot zoning
NMS has not articulated a legal basis for its “reverse spot zoning” claim or explained how it has an independent factual or legal basis. The district court understood this claim to be based at least in part on Colorado law. To the extent it is, the court properly declined to exercise supplemental jurisdiction under
* * * *
Because NMS‘s regulatory takings claim is prudentially unripe, its remaining claims resting on the same facts also lack prudential ripeness.
We affirm the district court‘s dismissal without prejudice of NMS‘s amended complaint.22
Notes
| Acronym | Definition |
|---|---|
| AACP | Aspen Area Community Plan |
| CCMP | Civic Center Master Plan |
| CDD | Community Development Department |
| FMR | Free Market Residential |
| LUC | Land Use Code |
| MSP | Mill Street Plaza |
| NMS | North Mill Street |
| NMSI | North Mill Street Investors |
| P&Z | Planning and Zoning |
| PD | Planned Development |
| SCI | Service Commercial Industrial |