                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         May 15, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
BOBBY G. WARDEN,

             Plaintiff - Appellant,

v.                                                         No. 14-5114
                                               (D.C. No. 4:13-CV-00398-CVE-PJC)
CITY OF GROVE, OKLAHOMA,                                   (N.D. Okla.)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      Bobby G. Warden appeals from the district court’s order dismissing his due

process and equal protection claims because they are not ripe for judicial review.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                 I. BACKGROUND

      Mr. Warden sought to develop a mobile home park in Grove, Oklahoma (the

City). He knew he needed to comply with a City ordinance requiring him to poll all

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
of the property owners within three-hundred feet of the proposed development and

obtain project approval from at least 75 percent of them. Shortly before Mr. Warden

began polling, the City passed an ordinance that potentially eliminated this

requirement. Although Mr. Warden believed he was no longer required to poll, he

nonetheless attempted to comply because the City allegedly told him that “nothing

has changed.” Aplee. Supp. App., Vol. 4, at 430. The City said it told Mr. Warden

that “[i]t was not clear” whether the polling requirement still existed. Id., Vol. 1,

at 112. When Mr. Warden failed to poll all of the neighboring property owners, he

ceased efforts to develop the property and instead sued the City, which had not even

considered whether to approve the project.

      In addition to the polling ordinance, Mr. Warden was required to file a site

plan application with the Planning and Zoning Commission (the Commission), see id.

at 128, which must be approved to seek a permit to commence construction, see id.

at 129. If Mr. Warden believed his project should be excused from this requirement,

he could seek a variance from the Board of Adjustment (the Board). See Aplt. App.

at 94. Mr. Warden filed neither an application, see Aplee. Supp. App., Vol. 1,

at 80-81, nor a request for a variance, see id. at 89-90.

      The City moved for summary judgment. The district court dismissed

Mr. Warden’s federal due process and equal protection claims challenging the polling

requirement, finding them unripe because he “has not received a final decision

regarding his proposed mobile home development.” Aplt. App. at 299.



                                           -2-
      The district court noted Mr. Warden “has not even applied for a permit for his

development, as [he] has not sought the approval of the Planning Commission, a

prerequisite to applying for a permit[,]” nor were there any “evidentiary materials

suggesting that [he] has sought a variance [from the Board].” Id. This failure

“prevented [the City] from issuing a final decision on whether [he] would be allowed

to develop his property.” Id. The court further found that seeking a permit or

variance “could not be considered futile, given that [City] officials were unsure if the

polling requirement was still in force or applicable.” Id. Thus, the court held that

Mr. Warden’s “federal substantive due process and equal protection claims are unripe

and should be dismissed.” Id. at 300. The court also dismissed his procedural due

process claim because the City “has not even been given the opportunity to fail to

provide [Mr. Warden] with due process.” Id.1

                                    II. ANALYSIS

      “The issue of ripeness is reviewed de novo.” Sierra Club v. U.S. Dep’t of

Energy, 287 F.3d 1256, 1263 (10th Cir. 2002). “A claim is not ripe for adjudication

if it rests upon contingent future events that may not occur as anticipated, or indeed

may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal

quotation marks omitted). This is precisely the situation before us.

      1
        Mr. Warden also alleged violation of his First Amendment rights and
violations of the Oklahoma Constitution and state laws. The district court granted
summary judgment on the merits of the First Amendment claim and declined to
exercise supplemental jurisdiction over the state law claims. Mr. Warden does not
appeal these rulings.



                                          -3-
      Mr. Warden argues that but for “the offending ‘polling provision’ . . . [he

would have been able] to proceed with the development of the desired residential

mobile home park that otherwise would have been allowed by the zoning code of the

City,” Aplt. Opening Br. at 8, and his claims are therefore ripe.

      Mr. Warden argues he would have been denied a permit because of the polling

requirement, but that this is not clear for several reasons: (1) there may be grounds

other than non-compliance with the polling requirement to deny a permit; (2) the

Board might grant a variance; (3) the polling requirement may be determined to have

been repealed; (4) the City has not denied Mr. Warden a permit; and (5) Mr. Warden

has presented no evidence that he will in fact be denied a permit.

      We conclude that the claims were properly dismissed for lack of Article III

ripeness. “‘Where a plaintiff’s action is based on a contingency, it is unlikely that

the parties’ interests will be sufficiently adverse to give rise to a case or controversy

within the meaning of Article III.’” Jordan v. Sosa, 654 F.3d 1012, 1032 (10th Cir.

2011) (quoting Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 411-12 (3d

Cir. 1992)). Mr. Warden’s claims were based on contingencies and properly

dismissed.

                                  III. CONCLUSION

      The judgment of the district court is affirmed.

                                                 Entered for the Court


                                                 Scott M. Matheson, Jr.
                                                 Circuit Judge

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