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SK Fin. SA v. LaPlata County

Citation: 28 ELR 20131
No. 96-1291, 126 F.3d 1272/(10th Cir., 10/01/1997)

The court holds that federal and state inverse condemnation claims and a state-law vested rights claim made by the owner of numerous lots in a subdivision in LaPlata County, Colorado, based on the county's denial of a land use permit, are not ripe. The permit would have allowed the owner to construct a sewage treatment plant to provide sewer service to part of the subdivision. The court first holds that the owner's federal takings claim is not ripe. A federal constitutional claim is not ripe until compensation is denied under state procedures, if adequate state procedures exist. The state of Colorado has provided a procedure for obtaining compensation for inverse condemnation, and the owner has not availed itself of that procedure. The court also holds that the district court had jurisdiction to consider the owner's state-law inverse condemnation claim if it was ripe. However, the claim was unripe because the county had not rendered any final decision regarding the permissibility of a sewer system serving the subdivision. An inverse condemnation action under Colorado law requires a final decision of a regulatory authority to support a regulatory taking claim.

The court further holds that the owner's vested rights claim is not ripe because the owner has not yet secured any vested right, and the county has not yet finally divested even the right that the owner claims has vested. Until the owner has obtained a building permit, a vested rights claim cannot be ripe under Colorado common law. Moreover, while developers of the subdivision may have relied on approval of the plat in a general sense, both in constructing improvements and in selling lots, there is no evidence they took any substantial steps based on any act of the county ostensibly approving the proposed partition-site sewer facility. At the time the improvements were made, the owners had no indication that an approved sewer system was even possible.

Counsel for Plaintiff
Alvin M. Cohen
Roos, Cohen & Long
Dominion Plaza, S. Tower
600 17th St., Ste. 2010, Denver CO 80202
(303) 571-5200

Counsel for Defendant
Michael A. Goldman
McLachlan & Goldman
850 1/2 Main Ave., P.O. Box 2270, Durango CO 81302
(970) 259-8747

Before Ebel and Henry, JJ.