November 15, 2018

Colorado Court of Appeals: Actions of County Requiring Posting of Bond Discriminatory Against Same-Sex Couple

The Colorado Court of Appeals issued its opinion in Rodgers v. Board of County Commissioners of Summit County on Thursday, April 25, 2013.

Building Regulations—Same-Sex Couple Discrimination—Colorado Civil Rights Act—Exhaustion of Administrative Remedies—Inverse Condemnation—Directed Verdict—Section 1983.

Plaintiffs Jason L. Rodgers and James R. Hazel, a same-sex couple, appealed the trial court’s judgment dismissing two of their claims and its entry of a directed verdict in favor of Summit County on their inverse condemnation claim. The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Plaintiffs built a home in Summit County that included a septic system. County employees found it did not comply with the County’s regulations or the approved building plan obtained by the previous owner. The County found that the septic tank was too small and required a subsurface drain that had not been installed. It also found that during the installation, the subcontractor had damaged wetlands on the property.

Winter was approaching and the issues couldn’t be fixed until spring, so the County offered a temporary certificate of occupancy requiring plaintiffs to fix the septic system, mitigate the wetlands damages, and post a bond for the estimated costs. Plaintiffs did not post the bond, the certificate of occupancy was not issued, and plaintiffs lost their home in foreclosure.

The trial court dismissed three of plaintiffs’ five claims under CRCP 8 and 12(b)(5). The parties agreed to bifurcate the inverse condemnation claim from the 42 USC § 1983 equal protection claim. The court entered a directed verdict on the inverse condemnation claim in the County’s favor during a bench trial. After plaintiffs rested in the jury trial on the § 1983 claim, the court directed a verdict in favor of the County on three of the four actions on the basis of which the plaintiffs asked that the jury be instructed that “taken as a whole collectively establish[] that the County treated them in a discriminatory manner.” The jury returned a verdict for the County on what remained of the § 1983 claim.

Plaintiffs argued it was error to dismiss their first and third claims for relief. The Court of Appeals disagreed. The first claim asserted that County officials discriminated against them by requiring certain actions not required of heterosexual couples before it would issue a certificate of occupancy. This claim seemed to arise under the Colorado Civil Rights Act. Under that Act, any person alleging discrimination must file a complaint with the Colorado Civil Rights Commission (CCRC). Plaintiffs never did so, and therefore it was not error to dismiss this claim for failure to plead exhaustion of administrative remedies.

Plaintiffs’ third claim asserted that the County deprived them of their constitutional rights of due process, equal protection, and freedom of association under the U.S. and Colorado Constitutions. These claims were appropriately dismissed because plaintiffs were not entitled to recover damages through such a direct claim. Section 1983 is the remedy for a person who has been deprived of a constitutional right by state action; under the Colorado Constitution a direct claim for damages will lie only where no other adequate remedy exists.

Plaintiffs then argued it was error to direct a verdict for the County on their inverse condemnation claim and on three of the four actions that formed the basis for the § 1983 claim. The Court affirmed on the inverse condemnation claim but reversed on the § 1983 claim.

Inverse condemnation is a claim for relief against a regulatory taking. The trial court found that the County’s regulations and response regarding the septic issues were reasonably applied to plaintiffs and the County did not deny them an economically viable use of their property. Moreover, the County’s septic regulations were reasonable and contributed to the legitimate public purpose of protecting groundwater and adjoining properties from contamination. The record clearly supported the trial court’s determination that no regulatory or per se taking had occurred.

On the § 1983 claim, plaintiffs alleged the County’s requirements were unreasonable and differed from requirements imposed on similarly situated heterosexual homeowners in four ways. The trial court analyzed each of the alleged discriminatory actions separately and entered a directed verdict in the County’s favor on three of them, allowing only an allegation that it was discriminatory to require plaintiffs to post a bond. It found plaintiffs had not presented sufficient evidence of similar situations, even when taken in the light most favorable to them, that could have established an equal protection claim.

Plaintiffs argued it was error to analyze the County’s conduct as discrete actions, rather than as a pattern of discriminatory conduct. The Court agreed, finding that at the directed verdict stage, the trial court’s role is not to separately weigh individual aspects of the evidence offered to support a single claim; its function is to decide whether the totality of the evidence would permit a reasonable jury to return a verdict against a defendant. The trial court may not “parse evidence presented” and grant a “partial directed verdict” on a claim. The partial directed verdict on the single § 1983 claim was error, and this claim was remanded to be retried.

Summary and full case available here.

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