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Harbours Pointe of Nashotah, LLC v. Village of Nashotah

January 28, 2002

HARBOURS POINTE OF NASHOTAH, LLC, PLAINTIFF-APPELLANT,
v.
VILLAGE OF NASHOTAH, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98-CV-0753--Patricia J. Gorence, Magistrate Judge.

Before Bauer, Coffey and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Bauer, Circuit Judge.

Argued October 31, 2001

Harbours Pointe of Nashotah, LLC ("Harbours Pointe"), filed suit against the Village of Nashotah ("Village") claiming that, under color of law, the Village's collection of a special assessment resulted in a taking of Harbours Pointe's property in violation of the rights and protections afforded by the United States and Wiscon sin Constitutions and 42 U.S.C. sec. 1983. The district court granted summary judgment in favor of the Village because Harbours Pointe failed to exhaust adequate state remedies. We affirm the judgment of the district court.

I. Background

In 1979, the Village and the Delafield-Hartland Water Pollution Control Commission entered into a contract for a public works project. Under the contract, the Village was obligated to construct a local sewer system to provide waste water collection service to its users. The Village would connect the local system to the regional system, which was constructed, operated and maintained by the Delafield-Hartland Commission.

The Village took all necessary steps, as required by law, to levy the reserve capacity assessments to fund the project. On November 19, 1980, at a duly noticed meeting, the Village Board passed a preliminary resolution declaring its intent to levy assessments upon every parcel of land in the Village to pay for the construction of the local sanitary sewer system. A public hearing on the assessments took place on December 3, 1980, pursuant to the requirements of Wis. Stat. sec. 66.60(7). Subsequently, the Village Board adopted a final resolution levying the reserve capacity assessments for the public works project. The final resolution was published by the Village Clerk in late December 1980.

Prior to November 1996, the Village had collected sufficient assessments to pay for the entire indebtedness incurred for the public works project. Nevertheless, the Village continues to collect the December 1980 reserve capacity assessment from developers in the Village, including Harbours Pointe.

Harbours Pointe obtained property in the Village in November 1996. Before Harbours Pointe's purchase, no Village reserve capacity assessments had been collected for this property. On January 15, 1997, Harbours Pointe entered into a Developer's Agreement with the Village concerning the development of the property. The agreement provided that Harbours Pointe would "pay any legal reserve capacity assessment to be used for the costs of reserve capacity in the sanitary sewerage system and treatmentfacilities for the benefit of [Harbours Pointe]." The agreement stated, "[t]he reserve capacity assessments against the above described property shall be an amount established by the Village and the Delafield-Hartland Water Pollution Control Commission."

In accordance with the Developer's Agreement, Harbours Pointe paid the Village a total of $291,700. Of this amount, $137,000 constituted payment of the December 1980 reserve capacity assessment and is the subject of this appeal. These payments were made after the Village had collected sufficient funds to pay for the public works project for which the assessment was levied.

Harbours Pointe originally filed suit in the Circuit Court of Waukesha County, Wisconsin. In its complaint, Harbours Pointe challenged the Village's collection of the special assessment after the debt was satisfied in 1996. Harbours Pointe claimed that it was entitled to a refund of money paid to the Village because the Village had collected $291,700 without adopting an impact ordinance in accordance with the statutory and procedural requirements of section 66.55 of the Wisconsin Statutes. Alternatively, Harbours Pointe argued that the Village, acting under color of law, had taken Harbours Pointe's property in violation of its rights under the United States and Wisconsin Constitutions and 42 U.S.C. sec. 1983. The Village removed the action to federal court, pursuant to 28 U.S.C. sec.sec. 1441(a) and 1446(b). Both parties consented in writing to magistrate jurisdiction over the matter.

The parties filed cross-motions for summary judgment. The district court denied both motions, but determined that the $137,000 paid by Harbours Pointe to the Village was not an impact fee. Rather, the district court found thisportion of the payments was the reserve capacity assessment levied by the Village pursuant to the December 1980 final assessment resolution.

Both parties later renewed their motions for summary judgment. The district court granted the Village's motion, holding that Harbours Pointe was barred from pursuing its claim against the Village because it had failed to timely pursue an adequate state court remedy. Specifically, the district court found that section 66.60 of the Wisconsin Stat utes required Harbours Pointe to file a claim contesting the assessment within 90 days of entering into the Developer's Agreement with the Village. The district court determined that section 66.60(12) of the Wisconsin Statutes provided Harbours ...


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