M.A.K. Investment Group v. City of Glendale , 897 F.3d 1303 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 31, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
M.A.K. INVESTMENT GROUP, LLC, a
Colorado limited liability company,
Plaintiff - Appellant,
v. No. 16-1492
(D.C. No. 1:15-CV-02353-RBJ)
CITY OF GLENDALE, a political (D. Colo.)
subdivision of the State of Colorado;
GLENDALE URBAN RENEWAL
AUTHORITY, a Colorado urban renewal
authority,
Defendants - Appellees.
_________________________________
ORDER
_________________________________
Before TYMKOVICH, Chief Judge, SEYMOUR, and McHUGH, Circuit Judges.
_________________________________
This matter is before the court on the Appellees’ Petition for En Banc
Determination, or, In the Alternative, for Panel Rehearing. We also have a response from
the appellant.
Upon consideration, that part of the Petition seeking panel rehearing is granted in
part and to the extent of the amendments made to the attached revised Opinion. Panel
rehearing is otherwise denied by the original panel members. The Clerk is directed to file
the attached revised decision effective the date of this order.
The Petition and response were also circulated to all the members of the court who
are in regular active service. See Fed. R. App. P. 35(a). As no member on the original
panel or the en banc court requested that a poll be called, the request for en banc
determination and reconsideration is denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
2
FILED
United States Court of Appeals
Tenth Circuit
July 31, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
M.A.K. INVESTMENT GROUP, LLC,
a Colorado limited liability company,
Plaintiff - Appellant,
v. No. 16-1492
CITY OF GLENDALE, a political
subdivision of the State of Colorado;
and GLENDALE URBAN RENEWAL
AUTHORITY, a Colorado urban
renewal authority,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:15-CV-02353-RBJ)
R. Alexander Pilmer (Michael A. Onufer, and Lianna Bash on Opening Brief
replaced by Allison Ozurovich on Reply Brief, Kirkland and Ellis LLP, Los
Angeles, California, and Timothy G. Atkinson, Russell W. Kemp, and James R.
Silvestro, Ireland Stapleton Pryor & Pascoe, P.C., Denver, Colorado, with him on
the briefs), Kirkland and Ellis LLP, Los Angeles, California, for Appellant.
Michael P. Zwiebel (Jeffrey A. Springer, Jason C. Astle, and Matthew R.
Giacomoni with him on the brief), Springer & Steinberg, P.C., Denver, Colorado,
for Appellees.
Before TYMKOVICH, Chief Judge, SEYMOUR, and McHUGH, Circuit
Judges.
TYMKOVICH, Chief Judge.
M.A.K. Investment Group, LLC owns several parcels of property in
Glendale, Colorado. The City of Glendale adopted a resolution declaring several
of M.A.K.’s parcels “blighted” under state law. Glendale never notified M.A.K.
of its resolution or the legal consequences flowing from it. In fact, the blight
resolution began a seven-year window in which the City could begin
condemnation proceedings against M.A.K.’s property. It also started the clock on
a thirty-day window in which M.A.K. had a right to seek judicial review of the
blight resolution under state law. Receiving no notice, M.A.K. did not timely
seek review.
M.A.K. argues Colorado’s Urban Renewal statute— both on its face and as-
applied to M.A.K.—violates due process because it does not require
municipalities to notify property owners about (1) an adverse blight
determination, or (2) the thirty days owners have to seek review. We conclude
M.A.K.’s allegations state a claim that the statute is unconstitutional as applied to
M.A.K. because M.A.K. did not receive notice that Glendale found its property
blighted. Since we hold the statute violated due process as applied to M.A.K., we
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need not decide whether the statute is unconstitutional on its face. 1 As for
M.A.K.’s second argument, we hold that due process did not require Glendale to
inform M.A.K. about the thirty-day review window.
I. Background
We begin by describing the relevant statutory framework.
A. Colorado’s urban renewal statute
Colorado’s Urban Renewal statute declares eliminating “blighted” areas to
be a public use for which municipalities can use their power of eminent domain.
Colo. Rev. Stat. § 31-25-102. The law enables municipalities to eventually
transfer blighted private property to other private parties or public entities for
redevelopment. After a municipality determines an area is blighted, it can begin
condemnation proceedings against the blighted property at any time for seven
years following the blight determination. § 31-25-105.5(2)(a)(I). The blight
determination is therefore not a complete taking in the constitutional sense, but it
slates the property for possible condemnation in the future.
1
A facial challenge “is not limited to [a] plaintiff[’s] particular case,”
John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010), but instead asserts that “the
terms of the statute itself” violate the Constitution. Doe v. City of Albuquerque,
667 F.3d 1111, 1127 (10th Cir. 2012). An as-applied challenge, by contrast,
asserts “that even if the statute [is] not unconstitutional in all its applications it
[is] at least unconstitutional in its particular application to” the plaintiff. City of
Chicago v. Morales, 527 U.S. 41, 78 n.1 (1999).
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To label a property blighted, municipalities must meet certain statutory
requirements. 2 Municipalities must find that the property meets “at least five” of
the eleven statutory blight factors. See § 31-25-105.5(5)(a). 3 Those findings
must be made at a public hearing. § 31-25-107(1)(a), (3)(a). And the findings
2
We use “municipality” or “city” throughout this opinion although other
entities, such as counties, are also eligible to use condemnation powers.
3
“‘Blighted area’ means an area that . . . substantially impairs or arrests
the sound growth of the municipality, retards the provision of housing
accommodations, or constitutes an economic or social liability, and is a menace to
the public health, safety, morals, or welfare.” Colo. Rev. Stat. Ann.
§ 31-25-103(2). The factors that go into this determination include the presence
of:
(a) Slum, deteriorated, or deteriorating structures;
(b) Predominance of defective or inadequate street layout;
(c) Faulty lot layout in relation to size, adequacy, accessibility, or
usefulness;
(d) Unsanitary or unsafe conditions;
(e) Deterioration of site or other improvements;
(f) Unusual topography or inadequate public improvements or utilities;
(g) Defective or unusual conditions of title rendering the title
nonmarketable;
(h) The existence of conditions that endanger life or property by fire or
other causes;
(i) Buildings that are unsafe or unhealthy for persons to live or work in
because of building code violations, dilapidation, deterioration, defective
design, physical construction, or faulty or inadequate facilities;
(j) Environmental contamination of buildings or property;
...
(k.5) The existence of health, safety, or welfare factors requiring high
levels of municipal services or substantial physical underutilization or
vacancy of sites, buildings, or other improvements . . . .
Id.
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must be based on “reasonably current information obtained at the time the blight
determination is made.” § 31-25-105.5(2)(a)(I).
The Act allows property owners to challenge a city’s blight determination.
“Any owner of property located within the urban renewal area may challenge the
determination of blight made by the governing body . . . by filing, not later than
thirty days after the date the determination of blight is made, a civil action in
district court for the county in which the property is located . . . .”
§ 31-25-105.5(2)(b). The civil action is “for judicial review of the exercise of
discretion on the part of the governing body in making the determination of
blight,” and “the governing body shall have the burden of proving that, in making
its determination of blight, it has neither exceeded its jurisdiction nor abused its
discretion.” Id.
As for notice, the statute requires a city to notify property owners in two
instances: (1) when the city begins a study regarding blight involving their
properties, and (2) when the city will hold a hearing regarding its intention to
acquire property for public or private redevelopment. See § 31-25-107(1)(b),
(3)(b).
But when it comes to the results of these blight hearings, the notice
requirement depends on whether the city found the property at issue blighted or
not. Strangely enough, Colorado’s statute requires a city to mail notice to those
whose property it does not find blighted, but does not require a city to notify
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those whose property it does find blighted. See § 31-25-107(1)(b). The statute
also takes care to note that “[n]otwithstanding any other provision of law, any
determination made by the governing body . . . shall be deemed a legislative
determination and shall not be deemed a quasi-judicial determination.”
§ 31-25-105.5(2)(c). This has consequences we will discuss below.
B. The blight determination
According to its complaint, M.A.K. owns several parcels of real property in
Glendale, Colorado. Seeking to redevelop its property, M.A.K. began working
with the city of Glendale on a private redevelopment plan.
In 2013, the City of Glendale embarked on a “Riverwalk Urban Renewal
Plan.” The Plan entailed declaring a group of properties blighted under the Urban
Renewal Law, allowing the City to condemn the properties and commence their
private redevelopment. M.A.K.’s property was among the properties affected by
the Plan. In April of the same year, Glendale notified M.A.K. it was commencing
a study on whether an area that included M.A.K.’s property was blighted. The
notice explained that Glendale would hold a hearing on May 7, 2013 to approve
the Riverwalk Urban Renewal Plan. According to M.A.K.’s complaint, the notice
did not explain that the hearing related to the possibility of future condemnation
proceedings against M.A.K.’s property.
After receiving this letter, M.A.K. claims one of its principals met with a
representative of Glendale and asked what “blight” meant and whether M.A.K.
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should take any action in response. The representative answered that M.A.K. “did
not need to worry about the notice.” App. 15. Having worked with the City
representative before, M.A.K. relied on his statement and did not attend the
hearing.
At the May 7 hearing, Glendale found M.A.K.’s property blighted pursuant
to the statutory factors. Glendale did not notify M.A.K. of this determination.
Nor did Glendale inform M.A.K. of the thirty-day window to challenge it in state
court. For that reason, M.A.K. claims it did not learn about the blight
determination until November 2013, when it engaged a real estate attorney to
assist in M.A.K.’s private redevelopment of its property. By that time, the thirty-
day window to challenge the determination had closed.
C. The suit
M.A.K. brought suit against Glendale under 42 U.S.C. § 1983, challenging
Colorado’s Urban Renewal statute both facially and as applied to its property.
M.A.K. alleged the statute violated both the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. The district court granted Glendale’s
motion to dismiss both claims. In the district court’s view, M.A.K. did not have
due process rights at stake because the blight determination was legislative in
nature. M.A.K.’s equal protection claim, on the other hand, failed because the
statute did not treat M.A.K. differently from others similarly situated. M.A.K.
appealed only the court’s dismissal of its procedural due process claim.
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II. Analysis
M.A.K. argues Colorado’s Urban Renewal Statute fails due process as
applied to M.A.K. because (1) it does not provide for adequate notice when a city
finds a landowner’s property blighted, (2) it does not provide for notice of the
thirty-day review period, and (3) M.A.K. in fact did not know about the blight
determination or the right of review within thirty days. We agree only with its
first proposition: the city’s failure to notify M.A.K. of the blight determination
violated M.A.K.’s right to due process. 4
We “review the grant of a Rule 12(b)(6) motion to dismiss de novo.”
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir.
2009). In doing so, we “must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most favorable to the
plaintiff.” Albers v. Bd. of Cnty. Comm’rs of Jefferson Cty., 771 F.3d 697, 700
(10th Cir. 2014). A district court must deny a motion to dismiss if the complaint
provides “facts sufficient to state a claim to relief that is plausible on its face.”
Id. (internal quotation omitted).
4
As previously mentioned, M.A.K. also argues the statute’s failure to
provide for notice violates due process on its face, but we do not reach that
question. Specifically, we do not decide whether the lack of notice here violates
due process even when the property owner does, in fact, learn about the blight
determination in time to seek review.
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Since M.A.K. claims the statute’s application in this case violated its
procedural due process rights, we undertake the familiar “two-step inquiry” for
procedural due process cases. See Pater v. City of Casper, 646 F.3d 1290, 1293
(10th Cir. 2011). First, “we ask whether the City’s actions deprived plaintiffs of
a constitutionally protected property interest.” Id. “If plaintiffs can satisfy this
requirement, we then consider whether they were afforded the appropriate level of
process.” Id. “In so doing, we note the procedural due process analysis is not a
technical conception with a fixed content unrelated to time, place and
circumstances, but rather is flexible and calls for such procedural protections as
the particular situation demands.” Id. at 1298 (internal quotation marks and
citation omitted).
Accordingly, we must answer two questions in this case. First, does
M.A.K. have a constitutionally protected property interest at stake? Second, if it
does, did Glendale provide M.A.K. sufficient notice that its property interests
were in danger? We take each question in turn.
A. Protected property interest
The blight determination does not effect a complete taking of M.A.K.’s
property. As explained above, it is only the first step toward condemnation. The
parties therefore debate whether M.A.K. has a protected property interest at stake
in this case at all.
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M.A.K. contends it has a property interest in the statutory right to seek
review within thirty days of the blight finding. We agree with M.A.K. that it has
a protected property right in the statutory cause of action. 5
Colorado’s statute gives property owners a right to “judicial review of the
exercise of discretion on the part of the governing body in making the
determination of blight.” Colo. Rev. Stat. § 31-25-105.5(2)(b). And in the
proceeding, the city has the burden of proving that “it has neither exceeded its
jurisdiction nor abused its discretion.” Id. This state-created cause of action
constitutes a protected property interest.
The Supreme Court’s decision in Logan v. Zimmerman Brush Company,
455 U.S. 422 (1982), makes that much clear. There, the plaintiff’s state-law
5
M.A.K. also argued it has a property interest because the blight
determination adversely affects real property interests. Since we find M.A.K. has
a property interest in the cause of action for review, we do not decide this
question. In particular, though the parties have briefed the question, we do not
decide whether the blight determination is a legislative decision in which no
property right can exist. See Onyx Properties LLC v. Bd. of Cty. Comm’rs of
Elbert Cty., 838 F.3d 1039, 1044–46 (10th Cir. 2016), cert. denied sub nom. Onyx
Properties, LLC v. Bd. of Cty. Comm’rs of Elbert Cty., 137 S. Ct. 1815 (2017).
Our decision rests solely on M.A.K.’s property right in its statutory cause of
action for abuse-of-discretion review.
We note that, contrary to the district court’s view, whether or not the blight
determination is legislative does not control our analysis. Even if due process
rights do not attach to the blight determination itself, they attach to the state-
created cause of action. See Logan v. Zimmerman Brush Company, 455 U.S. 422,
432 (1982) (“While the legislature may elect not to confer a property interest, . . .
it may not constitutionally authorize the deprivation of such an interest, once
conferred, without appropriate procedural safeguards.”).
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cause of action was dismissed because the state’s Fair Employment Practices
Commission, through no fault of the plaintiff’s, failed to hold a timely
conference. Id. at 424–427. The Supreme Court explained that “the Due Process
Clauses protect civil litigants who seek recourse in the courts, either as
defendants hoping to protect their property or as plaintiffs attempting to redress
grievances.” Id. at 429. “The hallmark of property,” the Court emphasized, “is
an individual entitlement grounded in state law, which cannot be removed except
‘for cause.’” Id. at 430. The Court explained the right to bring a cause of action
is just such an entitlement, and therefore “a species of property protected by the
Fourteenth Amendment’s Due Process Clause.” Id. at 428.
Under Logan, then, M.A.K. had a property interest in its statutory cause of
action to challenge the blight determination process for abuse of discretion. 6
Glendale objects there can be no due process right to a hearing alone
6
Other cases reach a similar conclusion. See, e.g., Tulsa Prof’l Collection
Servs., Inc. v. Pope, 485 U.S. 478, 485 (1988) (reiterating Logan’s conclusion);
Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933) (“a vested cause of action is
property and is protected from arbitrary interference”); Dr. Jose S. Belaval, Inc. v.
Perez-Perdomo, 465 F.3d 33, 37 n.4 (1st Cir. 2006) (recognizing a cause of action
is a property right protected by due process); Webster v. City of Houston, 735
F.2d 838, 844 (5th Cir.), on reh’g, 739 F.2d 993 (5th Cir. 1984) (same); Holman
v. Hilton, 712 F.2d 854, 858 (3d Cir. 1983); D.C. v. Beretta U.S.A. Corp., 940
A.2d 163, 173 (D.C. 2008) (same); Albert v. Allied Glove Corp., 944 So. 2d 1, 6
(Miss. 2006) (same); State By & Through Colorado State Claims Bd. of Div. of
Risk Mgmt. v. DeFoor, 824 P.2d 783, 792 (Colo. 1992) (same); Williams v. Hofley
Mfg. Co., 424 N.W.2d 278, 282 (1988) (same); LaBarre v. Payne, 329 S.E.2d 533,
535 (1985) (same).
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because “[p]rocess is not an end in itself” but is meant to “protect a substantive
interest to which the individual has a legitimate claim of entitlement.” See Olim
v. Wakinekona, 461 U.S. 238, 250 (1983). 7 But Glendale’s reasoning misses the
mark. The right to challenge the blight determination is not just a right to a
hearing for its own sake, but a right to overturn a blight determination that was an
abuse of discretion pursuant to the statute. See Colo. Rev. Stat. Ann.
§ 31-25-103(2); § 31-25-105.5(5)(a).
Olim and Crown Point—cases on which Glendale relies heavily—make this
point clear. In Olim, an inmate brought suit against state officials for transferring
him to a different prison because the transfer committee violated a state
procedural rule. Id. at 243. The state’s regulations, however, placed “no
substantive limitations on official discretion” regarding transfer decisions. Id. at
249. The Court held Olim had no property interest in the transfer. When a
decision-maker can “deny the requested relief for any constitutionally permissible
reason or for no reason at all,” the Court explained, there is no substantive right
at stake. Id. But when states do “plac[e] substantive limitations on official
discretion,” they “create[] a protected liberty interest.” Id.
We noted the same in Crown Point I, LLC v. Intermountain Rural Electric
7
M.A.K. points out that Olim is a case about liberty interests, not property
interests. That is true, but as our decision in Crown Point I, LLC v. Intermountain
Rural Electric Association shows, 319 F.3d 1211 (10th Cir. 2003), this principle
applies in the realm of property interests too.
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Association, 319 F.3d 1211 (10th Cir. 2003). In that case, Crown Point I, LLC
claimed a town’s approval of an electrical transmission line running through its
property violated due process because the town did not hold a public hearing
required by a town ordinance. Id. at 1213–14. We stated the general rule that
“[a] property interest exists if discretion is limited by the procedures in question”
and “the procedures . . . require a particular outcome.” Id. at 1217.
Applying this rule, we held Crown Point did not have a protected property interest
in the hearing because there were “no criteria . . . that would limit [the town’s]
discretion.” Id. at 1216–17. Crown Point simply could not claim an entitlement
to any particular outcome—even if it had the hearing, the town could do as it
pleased for any reason or no reason. Id.
Here, in marked contrast to Olim and Crown Point, Colorado’s statute
limits a city council’s discretion by providing eleven exclusive factors for its
decision. See Colo. Rev. Stat. Ann. § 31-25-103(2); § 31-25-105.5(5)(a).
It then provides property owners a right to judicial review for abuse of discretion.
The reviewing court cannot deny relief “for no reason at all,” as in Olim and
Crown Point, but instead must review the city council’s application of the
statutory factors. The opportunity for review is not, then, an empty formality: if
the record clearly showed Glendale abused its discretion, M.A.K. would be
entitled to a favorable outcome. Under the Supreme Court’s case law, that sort of
entitlement is a property right.
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Glendale ignores Olim and Crown Point’s reasoning and argues instead that
M.A.K. cannot have a property interest in judicial review because the blight
determination does not adversely affect its property value. Indeed, at oral
argument, Glendale counter-intuitively suggested the blight determination’s effect
on property values is so speculative that it might increase, not decrease M.A.K.’s
property values. That being so, Glendale claims that even if the city council had
abused its discretion and M.A.K. were entitled to a favorable outcome at the
review proceeding, M.A.K. has no protected property right because its property
values would not necessarily be harmed in the real world.
We disagree with this contention. First of all, we are not convinced the
blight determination’s effects do not burden M.A.K.’s real property interests.
M.A.K. claims the blight determination depreciates its property values and limits
its ability to sell its properties or obtain a mortgage. And M.A.K. would have to
bear that burden for up to seven years. Both the Supreme Court and our court
have suggested such consequences are a serious deprivation of property interests.
See Connecticut v. Doehr, 501 U.S. 1, 12 (1991) (“[E]ven the temporary or partial
impairments to property rights that attachments, liens, and similar encumbrances
entail are sufficient to merit due process protection.”); Pater v. City of Casper,
646 F.3d 1290, 1295 (10th Cir. 2011) (concluding fines entered against a property
burdened protected property interests because the fines “had the effect of
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lowering the market value of the burdened properties or limiting their
alienability”).
But more importantly, the extent to which the blight determination burdens
M.A.K.’s real property does not matter when determining if a property interest
exists in the cause of action. M.A.K. has a procedural property interest in
obtaining review simply because the statute provides an entitlement to reversal
for abuse of discretion. That is all. M.A.K. cannot be deprived of this state-
given cause of action without due process, even if overturning the blight
determination would only minimally affect its property values. Cf. Carey v.
Piphus, 435 U.S. 247, 266 (1978) (holding “the denial of procedural due process
should be actionable for nominal damages without proof of actual injury”).
In sum, M.A.K. clearly has a protected property interest in the statutory
right to judicial review of the blight determination.
B. Notice required
Since M.A.K. has a property right at stake in the state-law-created cause of
action, we must decide what type of notice due process required. The statute
provides for notice whenever a city council will hold a hearing with respect to an
urban renewal plan as well as whenever it commissions a study regarding blight.
But it does not require notice to property owners after a city council determines
their property is blighted, even though that determination starts the clock on the
thirty days landowners have to exercise their right to challenge the determination.
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M.A.K. argues due process required the city to provide two types of notice:
first, that the city found its property blighted; second, that M.A.K. had thirty days
to challenge that determination.
1. Notice of the blight determination
For decades, the Supreme Court has followed, and we have applied, the rule
from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950):
due process requires “notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.” 339 U.S. 306, 314 (1950). 8 “[A] mere
gesture is not due process.” Id. at 315. Rather, “[t]he means employed must be
such as one desirous of actually informing the absentee might reasonably adopt to
accomplish it.” Id. In keeping with this principle, the “general rule” is that
“notice by publication is not enough with respect to a person whose name and
address are known or very easily ascertainable and whose legally protected
interests are directly affected by the proceedings in question.” Schroeder v. City
of New York, 371 U.S. 208, 212–13 (1962).
Applying this intuitive rule, we conclude due process required Glendale to
provide M.A.K. with direct notice of the adverse blight determination. In
8
See, e.g., United States v. Cervantes, 795 F.3d 1189, 1190 (10th Cir.
2015); Darr v. Town of Telluride, 495 F.3d 1243, 1254 (10th Cir. 2007);
Aero-Med., Inc. v. United States, 23 F.3d 328, 330 (10th Cir. 1994); Reliable
Elec. Co. v. Olson Const. Co., 726 F.2d 620, 622 (10th Cir. 1984).
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contemporary terms this means notice had to be mailed, emailed, or personally
served. Without the minimal step of actual notice, M.A.K. was left unaware of
the potentially looming condemnation action, and so had little reason to even
investigate whether it could challenge the blight determination that authorizes that
action. As a consequence, M.A.K. lost its statutory right to review within thirty
days. In other words, M.A.K.’s ability to preserve its property right in the
statutory right of review depended on its knowledge of the simple fact the blight
finding existed.
When in the absence of notice, property owners are likely to lose a property
right—in a cause of action or otherwise—the Mullane rule applies. At that point,
the state must take reasonable steps to provide enough notice for reasonable
persons to realize they must investigate possible remedies.
Glendale argues property owners cannot sit on their rights and that they
have some duty of self-preservation to stay abreast of legislative pronouncements.
But while it is true M.A.K. could have attended the City’s hearing and learned of
the blight resolution, “a party’s ability to take steps to safeguard its interests does
not relieve the State of its constitutional obligation.” Mennonite Bd. of Missions
v. Adams, 462 U.S. 791, 799 (1983).
The Court reemphasized this principle in Jones v. Flowers, 547 U.S. 220
(2006). There, the plaintiff sued the state for failing to send further notice of a
tax sale after its first mailed notice returned undeliverable. Id. at 223. Though
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state law required the plaintiff to notify the secretary of state of his new address,
and the Court also recognized it was “common knowledge that property may be
subject to government taking when taxes are not paid,” the Court nonetheless held
the plaintiff’s deficiencies did not excuse the government from following
Mullane’s rule. So too here. Even if M.A.K. “should have been more diligent,”
that fact “does not excuse the government from complying with its constitutional
obligation of notice.” Id. at 232, 234. And, we note, it is not as if M.A.K.
ignored notice of the blight hearing altogether. M.A.K. alleges it asked a City
representative what the notice meant, and the representative told M.A.K. it “did
not need to worry about the notice.” App. 15. It would be perverse to hold such
notice satisfied due process in M.A.K.’s case. 9
A city’s constitutional obligation is to use means “such as one desirous of
actually informing the absentee might reasonably adopt.” Mullane, 339 U.S. at
315. In this case, those means were direct notice—typically by mail, email, or
personal service. Glendale had the names and addresses of the property owners
affected by their blight determinations. And the cost of providing this notice was
de minimis. Indeed, under the statute, cities have no trouble mailing notice to
those whose property it determines not to be blighted. Since “there seem to be no
compelling or even persuasive reasons why such direct notice cannot be given,”
9
Though we have considered this issue briefly, we note Glendale did not
argue that notice of the blight hearing satisfied due process.
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Walker v. City of Hutchinson, Kan., 352 U.S. 112, 116 (1956), we conclude due
process required direct notice that this adverse action had been taken against
M.A.K.’s property. 10
a. Individualized notice
Glendale makes several counter-arguments. The City first argues the
Supreme Court’s early-twentieth-century decision in North Laramie Land Co. v.
Hoffman, 268 U.S. 276 (1925), holds that a state need not provide individualized
notice of condemnation proceedings. But North Laramie is distinguishable from
the circumstances here. And as we explain, Mullane and other cases “call[] into
question the continued validity” of the rule set forth in North Laramie. See Brody
v. Vill. of Port Chester, 434 F.3d 121, 132 (2d Cir. 2005).
In North Laramie, the Supreme Court held that due process did not require
Platt County, Wyoming to individually notify persons their property had been
taken for the establishment of a road, even though they had a limited window of
thirty days to contest the taking. 268 U.S. at 282–83, 287 (1925). Neither did the
County have to provide direct notice to property owners about its assessment of
damages, even though the decision triggered a 30-day window of time in which
10
Our decision only concerns the notice due when a property owner has a
right to challenge a blight determination that can lead to transfer of the property.
We do not here decide how much notice due process would require if a property
owner had a cause of action to challenge a blight determination, but that blight
determination could not lead to the transfer of the property.
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the owners could challenge the damages assessment in court. Id. at 286–87. That
was so because “[a]ll persons are charged with knowledge of the provisions of
statutes,” and because “the land owner must take account in providing for the
management of his property and safeguarding his interest in it.” Id. at 283. “In
consequence,” the Court noted, “statutes providing for taxation or condemnation
of land may adopt a procedure, summary in character, and . . . notice of such
proceedings may be indirect.” Id.
But North Laramie’s rule does not control here, for three reasons.
First, and most fundamentally, North Laramie is distinguishable. The
North Laramie court did not explicitly consider the amount of notice required to
protect property owners’ interest in a statutory cause of action. Our decision, by
contrast, rests on the notice cities must give property owners so they can preserve
a right to review that expires in thirty days—not their real estate interests in
general.
What is more, the statute at issue in North Laramie provided for publication
notice in a local newspaper. Id. at 285, 286–87. But Glendale provided far
less—no notice at all. So far as we can tell at this stage, the blight finding was
only published, if at all, in whichever way the city chooses to record its
resolutions. That is clearly not the kind of “publication notice” North Laramie
relied on.
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Second, even if North Laramie were squarely on point, its reasoning no
longer has much force. North Laramie was “framed in recognition of [a] fact”
that is no longer true today: that publication notice is an effective means of
notifying owners of real estate of a pending proceeding. See id. at 283. Perhaps
publication got the job done in 1925. But, as the Supreme Court explained three
decades later, “[i]n too many instances notice by publication is no notice at all.”
Walker v. City of Hutchinson, 352 U.S. 112, 117 (1956).
Indeed, as commentators have recognized, the major driving force behind
the Supreme Court’s early endorsement of publication notice has disappeared. At
the time, states had no jurisdiction over nonresident property owners. Since the
state could not serve nonresidents with process, the only way a state could
commence proceedings against a nonresident’s property within the state was
through constructive notice by publication. After the Court moved away from its
hyper-territorial limits on state jurisdiction, publication notice became both less
necessary and less defensible. See Mennonite, 462 U.S. at 796 n.3 (explaining
this evolution); Arthur F. Greenbaum, The Postman Never Rings Twice: The
Constitutionality of Service of Process by Posting After Greene v. Lindsey, 33
Am. U. L. Rev. 601, 604–07 (1984) (same); The Constitutionality of Notice by
Publication in Tax Sale Proceedings, 84 Yale L.J. 1505, 1506–07 (1975) (same);
Requirements of Notice in Rem Proceedings, 70 Harv. L. Rev. 1257, 1257, 1265
(1957) (same).
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Third, even if its reasoning were persuasive and on point, North Laramie
has not survived the onslaught of inconsistent decisions—indeed, the
transformation of modern notions of due process—that took place since the
1950’s. See Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct.
Rev. 85, 85–87, 105–09 (1982) (tracing the transformation of procedural due
process doctrine). The Court first fully articulated the modern conception of the
Due Process Clause’s notice requirements for judicial proceedings in Mullane.
And Mullane is on its face inconsistent with North Laramie’s rule.
In that case, New York Banking Law allowed small trusts to be pooled
together for investment purposes. When the state settled accounts periodically,
the state notified beneficiaries by publishing an ad in a newspaper. The Court
first rejected the argument publication notice sufficed. “It would be idle to
pretend that publication alone as prescribed here, is a reliable means of
acquainting interested parties of the fact that their rights are before the courts.”
339 U.S. at 315. The Court continued: “Publication may theoretically be
available for all the world to see, but it is too much in our day to suppose that
each or any individual beneficiary does or could examine all that is published to
see if something may be tucked away in it that affects his property interests.” Id.
at 320.
By rejecting the idea that publication notice is enough, Mullane undermines
the central premise of North Laramie. But Mullane does much more than simply
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imply the demise of North Laramie’s reasoning, for Mullane explicitly created a
different, and contrary, default rule. “Where the names and post office addresses
of those affected by a proceeding are at hand,” the Court announced, “the reasons
disappear for resort to means less likely than the mails to apprise them of its
pendency.” Id. at 318.
Since then, the Supreme Court “has adhered unwaveringly to the principle
announced in Mullane.” Mennonite, 462 U.S. at 797. In case after case, the
Supreme Court has rejected publication notice for condemnation proceedings or
other proceedings related to real estate, effectively abrogating North Laramie’s
rule. In Walker v. City of Hutchinson, the city filed a condemnation action
against Walker’s property and only provided notice by publication. 352 U.S. 112,
113 (1956). The Court applied “the principles stated in the Mullane case” and
held “notice by publication [fell] short of the requirements of due process.” Id. at
116. So too in Schroeder v. City of New York, where the Court held New York
City’s publication notice of condemnation proceedings “did not measure up to the
quality of notice which the Due Process Clause . . . requires.” 371 U.S. at 211.
And again in Mennonite, where the Court followed “the analysis in Mullane” and
held that when counties will hold a sale of mortgaged property with unpaid
property taxes, “constructive notice by publication must be supplemented by
notice mailed to the mortgagee’s last known available address.” 462 U.S. 791,
795–800 (1983). See Jeanni Atkins et. al., The Threat to Notice by Publication
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Posed by Mennonite Board of Missions v. Adams, 21 Ohio N.U. L. Rev. 107, 110
& n.4, 111–12 (1994) (noting Mennonite’s inconsistency with North Laramie and
other earlier cases).
Though the Court has not explicitly abrogated North Laramie, it cannot be
said that a blanket “publication notice is enough for real estate” rule has survived.
Indeed, in Walker, the Supreme Court mentioned North Laramie in a footnote,
interpreting it merely as having upheld a law that provided for both publication
notice and notice by mail (in which case, it does not conflict with our decision
here either). See 352 U.S. at 116 n.6; see also The Constitutionality of Notice by
Publication in Tax Sale Proceedings, supra, at 1518 n.25 (“In Walker, the Court
distinguished” North Laramie “in such a way as to suggest an overruling of” it);
Requirements of Notice in Rem Proceedings, supra, at 1265 (suggesting Walker is
inconsistent with North Laramie). The only other mentions of North Laramie in
the previously mentioned cases were in the dissents. See Walker, 352 U.S. at 127
(Burton, J., dissenting); Mennonite, 462 U.S. at 804 (O’Connor, J., dissenting).
One more point need be said about North Laramie. The North Laramie
Court suggested property owners do not need notice of an adverse action against
their property if they could have taken steps to find out about the adverse action
themselves. “A land owner who had notice of the initiation of the proceedings for
the opening of the road,” the Court explained, “would have experienced no
practical difficulty in ascertaining when the Board of County Commissioners took
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final action and by filing notice of appeal to the District Court within thirty days
thereafter, he could have secured the full hearing to which he is constitutionally
entitled.” 268 U.S. at 287. “Having failed to adopt such procedure, the plaintiff
cannot complain of a denial of due process of law,” the Court concluded. Id.
This too is no longer good law. As previously explained, the Supreme Court has
now made it clear that a plaintiff’s sub-par diligence does not dissolve the
government’s notice obligations. See Jones v. Flowers, 547 U.S. 220, 232, 234
(2006); Mennonite, 462 U.S. at 799; Garcia-Rubiera v. Fortuno, 665 F.3d 261,
276 (1st Cir. 2011) (explaining this rule).
For all the foregoing reasons, we think reports of North Laramie’s death
have not been greatly exaggerated. In Brody v. Village of Port Chester, the
Second Circuit also grappled (albeit in a slightly different context) with the
contradiction between Mullane and “what seems to be the per se rule of North
Laramie.” 434 F.3d at 132. “Forced to hew a rule out of this contradictory
mandate,” the court sided with Mullane and its unbroken stream of progeny. Id.
We follow suit.
b. Knowledge of the law
Glendale next argues due process does not require cities to notify property
owners about their ability to seek review because “citizens are presumptively
charged with knowledge of the law.” See Atkins v. Parker, 472 U.S. 115, 130
(1985). Glendale is correct that due process did not require it to tell M.A.K. that
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it had only thirty days to seek review and how to seek that review. But Glendale
is incorrect this means it did not have to provide any notice at all.
Glendale’s conclusion to the contrary elides one key point: the Supreme
Court’s case law on the “knowledge of the law” presumption distinguishes
between those laws and regulations which are “self-executing” and those which
only take effect after a legal proceeding begins. See Tulsa Prof’l Collection
Servs., Inc. v. Pope, 485 U.S. 478, 485–486 (1988); Texaco, Inc. v. Short, 454
U.S. 516, 533–34 (1982). When a published law provides a certain amount of
time for a person to take action in order to protect his or her property rights, the
government generally does not have to notify that person about the deadline. But
when it is “only after [government] actions take place that the time period begins
to run,” the government must provide notice. Tulsa, 485 U.S. at 487. In other
words, if the clock only begins to tick after the government takes a formal action,
the government must let the affected person know about what it did. 11
To illustrate, consider the difference between a statute of limitations and
the amount of time a party has to answer a complaint under Rule 12. Both are
published, but both are not self-executing. A statute of limitations is self-
11
This rule only applies when the government takes a formal action
triggering the deadline. For that reason, the district court’s worry that this rule
might require government tortfeasors to inform their victims about the statute of
limitations was misplaced. See Texaco, Inc., 454 U.S. at 536 (1982) (“The Due
Process Clause does not require a defendant to notify a potential plaintiff that a
statute of limitations is about to run . . . .”).
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executing because a party need not commence a proceeding to start the clock.
Publication of the statute is therefore sufficient notice for persons with claims to
find out how long they have to bring suit. But the published rule regarding how
long one has to answer a complaint is not sufficient to notify a person who does
not know he or she has been sued. The rule is not self-executing because an
action must be taken before the clock starts to tick. Sure, a person can be aware
in general that if he is sued, he has a certain amount of time to respond. But that
person is not required to check court records to make sure he has not been sued.
Due process requires the defendant be notified of a pending action.
Here, Glendale took a formal action: it found M.A.K.’s property blighted.
M.A.K. was not aware of that action. To be sure, we can impute to M.A.K.
knowledge that if its property were ever to be found blighted, it would have thirty
days to challenge that determination. But it never found out its property was so
designated—not until several months after the fact, at least. Our usual rule that
citizens are presumptively charged with knowledge of the law therefore does not
derail our conclusion that, in the circumstances of this case, Glendale had to
notify M.A.K. about the blight determination.
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c. Other opportunities for review
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Finally, Glendale insists that Colorado’s statute allows M.A.K. to challenge
the original blight determination if and when a condemnation proceeding begins. 12
Glendale bases this assertion on Colorado’s provisions governing condemnations
for blight, which require “the condemning entity to demonstrate, by clear and
convincing evidence, that the taking of the property is necessary for the
eradication of blight.” Colo. Rev. Stat. Ann. § 38-1-101(2)(b). Glendale thus
argues no harm was done when M.A.K. lost its statutory right to review the blight
determination within thirty days, because the state provides an opportunity to
bring the same claim during a condemnation proceeding.
We disagree that the condemnation proceeding adequately compensates
M.A.K. for the loss of its statutory right to review of the blight determination.
First of all, Glendale might never bring a condemnation proceeding. An
opportunity for review that may never come cannot replace a statutory right to
review.
Second, a cause of action to have the blight determination reversed is not
the same thing as being able to argue the property is not blighted in a future
condemnation action. The first is a cause of action to reverse an erroneous blight
12
The district court also noted that M.A.K. can bring a federal takings
challenge if the city brings a condemnation proceeding. This is not an adequate
substitute, however, because the federal public-use challenge would not
necessarily protect M.A.K. from a blight determination that violates Colorado’s
statute.
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determination and so prevent a condemnation proceeding from commencing in the
first place. The second is no cause of action at all. It is only a possible argument
to be made in the midst of a condemnation proceeding that is already
underway—a last-ditch defense, instead of a nip in the bud.
Third, at the most basic level, a proceeding for review of the blight
determination and a condemnation proceeding are not equivalent because a blight
determination and a condemnation are different things in themselves. True, the
blight determination is a step leading toward condemnation. But the blight
determination also stands alone. It exists for seven years even if the city never
brings a condemnation proceeding. And the burdens it creates—uncertainty for
property owners chief among them—are separate from the burdens a
condemnation creates. For that reason, a condemnation proceeding, no matter
how thorough, cannot clean up for a lost opportunity to challenge the blight
determination that came before it.
In sum, even if property owners can argue their property is not blighted if
and when condemnation proceedings begin, that does not preserve the cause of
action for immediate review of the blight determination itself.
2. Notice of the right of review within 30 days
As for specific notice of the thirty-day time frame in which to seek review,
we agree with Glendale that due process did not require it. If M.A.K. had been
notified of the blight finding, it would have been up to M.A.K. to find out what
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remedies were available under state law.
The Supreme Court explained this principle in City of West Covina v.
Perkins, 525 U.S. 234 (1999). There, plaintiffs challenged a city’s procedures for
the return of property seized during a search, arguing due process required the
city to tell plaintiffs how to get the property back. Id. at 236–37. The Court held
that “[i]ndividualized notice that the officers have taken the property is necessary
. . . because the property owner would have no other reasonable means of
ascertaining who was responsible for his loss.” Id. at 241. But “[o]nce the
property owner is informed” of the deprivation, “he can turn to these public
sources to learn about the remedial procedures available to him.” Id.
In prior cases, it is true we have said or assumed that “[d]ue process also
requires some indication that a procedure exists to protect one’s exempt property
and how, in general, either to trigger the process or to gain information regarding
the process.” Aacen v. San Juan Cty. Sheriff's Dep’t, 944 F.2d 691, 699 (10th
Cir. 1991); see DiCesare v. Stuart, 12 F.3d 973, 978 (10th Cir. 1993). Those
cases relied on the Supreme Court’s decision in Memphis Light, Gas & Water
Division v. Craft, 436 U.S. 1 (1978). In Memphis Light, the Supreme Court held
due process required a municipal utility to provide customers notice of how to
contest the termination of the utility service. Id. at 22.
But as other courts have recognized, West Covina, 525 U.S. at 234, limited
Memphis Light’s holding. See Gates v. City of Chicago, 623 F.3d 389, 398 (7th
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Cir. 2010); Arrington v. Helms, 438 F.3d 1336, 1351 n.16 (11th Cir. 2006). The
West Covina Court specifically distinguished Memphis Light, explaining that case
“does not support a general rule that notice of remedies and procedures is
required.” West Covina, 525 U.S. at 242. Instead, the Memphis Light rule only
applies when “the administrative procedures at issue” are “arcane and are not set
forth in documents accessible to the public.” Id. Where, by contrast, “state-law
remedies” are “established by published, generally available state statutes and
case law,” the Memphis Light rule does not apply. Id. at 241.
West Covina, not Memphis Light, applies here. The right to seek review
within thirty days is publicly accessible in a statute. Had M.A.K. been notified of
the blight determination, it could have turned to “public sources to learn about the
remedial procedures available to [it].” Id.
We realize this conclusion is in tension with that of the Second Circuit in
Brody, 434 F.3d at 130–32. There, the court concluded—in very similar
circumstances—that Mullane required a city to inform property owners of the
thirty-day deadline to seek review of a blight determination. Id. The court
reasoned that the additional burden of including information about property
owners’ right to contest the determination was small, and the thirty-day period
short. Id. at 132. It also thought the “average landowner” would not “have
appreciated that notice” of the determination “began the exclusive period in which
to initiate a challenge.” Id.
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While we acknowledge those potential problems, the Second Circuit did not
consider West Covina’s effect on its conclusion. We think our conclusion more
faithfully follows West Covina’s reasoning. And we also think the thirty-day
deadline is not so short as to make it too difficult for property owners to inquire
into their remedies in time. Compare Grayden v. Rhodes, 345 F.3d 1225, 1243
(11th Cir. 2003) (due process required notice of right to contest condemnation
when tenants were provided with just thirty-six hours to vacate their homes), with
Reams v. Irvin, 561 F.3d 1258, 1265 (11th Cir. 2009) (due process did not require
notice of right to contest determination when person had thirty days to “consult
publicly available documents, discover [the] right to a hearing, and exercise that
right”), and Arrington, 438 F.3d at 1353 (same).
While letting owners know they only have thirty days to challenge the
blight finding may be a best practice, it is not constitutionally compelled. We see
no need to require “individualized notice of state-law remedies which, like those
at issue here, are established by published, generally available state statutes and
case law.” West Covina, 525 U.S. at 241.
III. Conclusion
Colorado’s statute gave M.A.K. a right to seek review of a blight
determination for abuse of discretion. At the same time, it allowed Glendale to
find M.A.K.’s property blighted without notifying M.A.K. This was so even
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though the blight determination started the clock on the thirty days M.A.K. had to
seek review and commenced a seven-year period during which Glendale could
bring condemnation proceedings against the property.
Accepting M.A.K.’s allegations as true, we hold M.A.K. has a protected
property interest in the statutory cause of action for abuse-of-discretion review.
Because Glendale’s failure to notify M.A.K. of the blight determination
effectively deprived M.A.K. of this right, Glendale violated M.A.K.’s right to due
process. Had M.A.K. learned about the blight determination, M.A.K. could have
found out for itself what remedies it could pursue.
What the Due Process Clause required here was not so much to
ask—merely a letter, an envelope, and a stamp. The Supreme Court has
repeatedly held that notice by mail is practically “a minimum constitutional
precondition to a proceeding which will adversely affect the liberty or property
interests of any party.” Mennonite Bd., 462 U.S. at 800.
We take care to note the limits of our holding, however. This is not a case
in which the property owner attended the blight hearing and learned of the
determination there. M.A.K. alleges it asked about the significance of the blight
hearing and was told not to worry about it. We only hold that where, as alleged
here, a property owner does not otherwise learn about the blight determination, it
violates due process for a City not to send direct notice.
For the foregoing reasons, we REVERSE the district court’s grant of the
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motion to dismiss and remand for further proceedings consistent with this
opinion.
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