The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM DECISION AND ORDER
Before the Court is Defendants' Motion for Summary Judgment (Docket No. 21) and Plaintiffs' Motion for Partial Summary Judgment (Docket No. 22). The Court has reviewed both motions and the records contained therein. The Court grants Defendants' motion with respect to claims one, three, four, and five, and denies Defendants motion with respect to claim two. The Court denies Plaintiffs' motion with respect to all Claims. The Court denies summary judgment to both parties on claim two, alleging that Defendants violated due process regarding the 2007 CUP, and on Plaintiffs' substantive due process claim.
Troy Schwartz, the operator of a rock quarry, and Alvin Yantis, the property owner, filed a complaint with this Court on January 16, 2009 following proceedings with Adams County to obtain a conditional use permit ("CUP") to operate the rock quarry. Schwartz and Yantis filed suit against the following, whom the Court will refer to collectively as "Defendants": Adams County; William P. Brown, in his individual capacity and his capacity as an Adams County Commissioner; Joseph P. Holmes, in his individual capacity and his capacity as an Adams County Commissioner; Michael E. Paradis, in his individual capacity and his capacity as an Adams County Commissioner; Donald Horton, in his individual capacity and his capacity as an Adams County Planning and Zoning Administrator; and, Myron D. Gabbert, Jr., in his individual capacity and his capacity as an Adams County Prosecutor. See Compl., at 1 (Docket No. 1).
Plaintiffs filed suit pursuant to 42 U.S.C. § 1983, alleging that Defendants violated their procedural due process and equal protection rights. See id., ¶¶ 42--64. Specifically, Plaintiffs allege that Defendants deprived them of a property right in a CUP they applied for in 1999 ("1999 CUP") without providing them due process, id. ¶¶ 42--51; that Defendants' deviation from a local procedural ordinance violates their due process and equal protection rights with respect to a CUP issued in 2007 ("2007 CUP"), id. ¶¶ 52--60; and, that Defendants deprived Plaintiff Schwartz of his right to engage in a common occupation, from September 2007 until June 2008, without providing him due process and in violation of equal protection, id. ¶¶ 61--64. Although not clearly stated in the Complaint, the parties also dispute in their briefing whether Defendants violated Plaintiffs' substantive due process rights with respect to the 2007 CUP. Plaintiffs also allege that Defendants maliciously prosecuted Plaintiff Schwartz for a zoning violation in September 2007, id. ¶¶ 65--72, and engaged in a civil conspiracy to deprive them of their civil rights by engaging in malicious prosecution, id. ¶¶ 73--78.
Defendant Yantis owns real property in Adams County that contains a rock quarry. See Defs.' Summ. J. Mot., Exh. E, at 1 (Docket No. 21-8); Yantis Dep., at 14--15 (Docket No. 21-7).*fn1 Schwartz has operated the rock quarry since the early 1970s. Schwartz Dep., at 10 (Docket No. 21-6). Schwartz and Yantis do not have a formal partnership agreement, although they do have an informal arrangement under which Schwartz pays Yantis a certain amount from the rock quarry's proceeds in exchange for Schwartz's use of the rock quarry. Yantis. Dep., at 15--17.
In 1998, Schwartz expanded operations at the rock pit, which required a rock crusher, and consequently also required Yantis to apply for a CUP with Adams County.
Id.; Horton Dep., at 5 (Docket No. 21-5). The Planning and Zoning Committee reviewed Yantis's CUP application in 1999, held public hearings in July 1999, and, on October 21, 1999, recommended that the Board of County Commissioners (the "Board") approve the application. Horton Dep., at 5--6, 13--15. Plaintiffs attended the July 1999 hearing with the Planning and Zoning Commission. Yantis Dep., Exh. D, at 9--10 (Docket No. 21-7).
For unknown reasons, although the Board held a hearing on the 1999 CUP application, the Board never formally approved the CUP. Id. at 5; Compl. ¶ 20 (Docket No.1). Plaintiffs attended the initial Board meeting in August 1999, though neither commented on the application. Schwartz Dep., at 13--15. Plaintiffs and Defendant Horton both thought that Schwartz was operating the rock pit with a valid CUP. Horton Dep., at 5; Schwartz Dep., at 16--17. The parties do not contest that the Board never officially approved the 1999 CUP application.
For the eight years following Plaintiffs' 1999 CUP application, Schwartz followed the conditions laid out in the CUP application and accompanying recommendation letter from the Planning and Zoning Commission. Horton Dep., at 5, 7. None of the parties involved realized that the Board had never officially approved a CUP and that Plaintiffs were therefore operating the rock quarry without a properly approved CUP. Id.
In early 2007, when Yantis's neighbors complained to Adams County about the rock quarry's operations, Defendant Horton realized that the Board had never officially approved the 1999 CUP application. Horton Dep., at 9. On February 26, 2007, Horton resubmitted the 1999 CUP application to the Board for approval. Id. at 8--10. The Board held a public hearing and heard public comments on Yantis's CUP application on March 19, 2007. Id. at 17--18. Yantis did not attend this meeting, but Schwartz was present. Yantis Dep., at 18; Schwartz Dep., at 21. On March 23, 2007, members of the Board, Horton, and some others met with Schwartz at the rock quarry and appeared to agree on mutually beneficial conditions to operate the rock quarry. Schwartz Dep., at 24--26.
The Board held another meeting on April 9, 2007 but still did not approve the CUP application. Id. at 26. Schwartz attended the April 9, 2007 meeting. Id. On April 17, 2007, the Board approved amended conditions and, on April 23, 2007, approved the 2007 CUP for Yantis's and Schwartz's signatures. Horton Dep., at 19, 22. Neither Schwartz nor Yantis signed the 2007 CUP. Id. at 21; Schwartz Dep., at 32. Schwartz admitted that he continued to operate the rock quarry after April 10, 2007. Schwartz Dep., at 33.
On June 11, 2007, the Board issued a cease and desist letter to Schwartz and Yantis, which states that "[u]ntil your  conditional use permit is signed and received by the Adams County Clerk's Office, you may not operate the Yantis Rock Pit." Defs.' Summ. J. Mot., Exh. G. (Docket No. 21-10). The letter also asks that Plaintiffs "contact the Clerk's office and set up a time and date to clear this matter up." Id. Plaintiffs did not directly contact the Clerk's office to arrange a meeting. Schwartz Dep., at 39. On June 19, 2007, however, Schwartz's attorney requested proposed meeting times with the Board. Pls.' Summ. J. Mot., Exh. 12 (Docket No. 25-5). The Board did not respond to Schwartz's attorney and the parties never met to discuss the terms of the 2007 CUP.
On September 10, 2007, the Adams County Prosecutor, Defendant Gabbert, filed a criminal complaint against Schwartz for continuing to operate the rock quarry without a valid CUP. Defs.' Summ. J. Mot., Exh. I (Docket No. 21-12). Schwartz admitted that he was operating the rock quarry on September 9, 2007. Schwartz Dep., at 44. Gabbert states that he filed the criminal complaint because it "might have been . . . a possible way of resolving the situation . . . because the Commissioners weren't having any luck." Gabbert Dep., Exh. 7, at 7 (Docket No. 31-9). Gabbert does not specifically recall what evidence supported his determination that probable cause existed and therefore supported filing the criminal complaint. Id. at 9. Gabbert does state, however, that "I wouldn't of done the complaint unless I determined there could be a credible person with a report that" Schwartz had operated the rock quarry without a valid CUP. Id. Gabbert could not remember filing a criminal complaint in similar circumstances. Id. at. 11. Schwartz's criminal attorney negotiated the terms of a new CUP in exchange for the County's agreement to drop the criminal charges against Schwartz. Id. at 10; Schwartz Dep., at 46--47.
On June 23, 2008, the Board and Plaintiffs agreed to CUP conditions. Yantis Dep., at 28. This CUP is still in place.
SUMMARY JUDGMENT STANDARD
A district court may grant summary judgment if "there is no genuine issue as to any material fact" and "the movant is therefore entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(c)(2). A dispute about a material fact exists if a reasonable jury could decide in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If, as here, the parties submit cross motions for summary judgment, the court must still determine whether an issue or issues of disputed fact exist and must consider each motion on its own merits. Fair Hous. Council of Riverside County, ...