Forseth v. Village of Sussex

• Decision Date: 03 January 2000
• Docket Number: No. 98-3751,98-3751
• Citation: 2000 WL 10266,199 F.3d 363
• Parties: (7th Cir. 2000) ARNOLD T. FORSETH, RANDY S. FORSETH, and A&R LAND COMPANY, a Wisconsin General Partnership, Plaintiffs-Appellants, v. VILLAGE OF SUSSEX, a Wisconsin Municipal Corporation, JOHN H. TEWS, Individually and as Village President, and M. CHRIS SWARTZ, as Village Administrator, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 363

199 F.3d 363 (7th Cir. 2000)

ARNOLD T. FORSETH, RANDY S. FORSETH, and A&R LAND COMPANY, a Wisconsin General Partnership, Plaintiffs-Appellants, v. VILLAGE OF SUSSEX, a Wisconsin Municipal Corporation, JOHN H. TEWS, Individually and as Village President, and M. CHRIS SWARTZ, as Village Administrator, Defendants-Appellees.

No. 98-3751

In the United States Court of Appeals For the Seventh Circuit

Argued February 23, 1999

Decided January 3, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 97 C 215--Rudolph T. Randa, Judge.

[Copyrighted Material Omitted]

Before COFFEY, RIPPLE and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

On March 5, 1997, Plaintiffs Charles and Randy Forseth (the "Forseths") filed suit under 42 U.S.C. sec. 1983 and under Wisconsin state law in the United States District Court for the Eastern District of Wisconsin against Defendants Village of Sussex ("Village"), the Village's former President, John H. Tews ("Tews"), and the Village's Administrator, M. Chris Swartz ("Swartz"). The Forseths claimed that Defendants wrongfully interfered with their development of a tract of land. The court dismissed the action without prejudice pursuant to Federal Rule of Civil Procedure 12(c), holding that the Forseths' federal claims were "not ripe for adjudication." We AFFIRM IN PART AND REVERSE IN PART AND REMAND WITH INSTRUCTIONS.

I. BACKGROUND

A. The Forseths' Land Development and Events Leading to the Dispute

In July 1992, the Forseths, doing business as A&R Land Company, purchased thirty acres of land in the Village of Sussex, Waukesha County, Wisconsin, with the intention of developing the land as a residential subdivision. In August 1992, pursuant to Wisconsin law, the Forseths submitted a preliminary plat¹ of their property to the Village Plan Commission ("Plan Commission"). The Plan Commission denied the preliminary plat because: (1) the plat did not properly delineate the wetlands on the property; and (2) a number of the proposed lots had direct driveway access to an arterial highway. Consequently, the Forseths altered their plan to comply with the directions of the Plan Commission and in January 1993, submitted a revised preliminary plat which addressed the concerns of the Plan Commission. The Plan Commission approved the revised preliminary plat and after approval was received from the appropriate state and county agencies defined in Wis. Stat. sec. 236.12 and Village Ord. sec. 18.0302, the Sussex Village Board ("Village Board") approved the preliminary plat in September 1993, which in turn became the final plat. The Forseths needed only one final step--to obtain approval of the final plat by the Village Board.

Before the Forseths submitted the final plat for Village Board approval, Tews, whose homestead abutted four lots of the proposed development, was elected President of the Village Board. Plaintiffs made several allegations in their complaint and brief submitted in opposition to the motion to dismiss about the conduct of Village Board President Tews and Village Administrator Swartz, including, that even before he was elected President, Tews made various efforts to obstruct and/or delay the Forseths' subdivision development because Tews' homestead was in his family for decades and overlooked the Forseths' property. Plaintiffs further contended that Tews "became angered and frustrated at the prospect of streets and houses disrupting the natural area and obstructing his views"; thus, Tews "calculated a plan of harassment . . . designed to exact retaliation and vengeance" and with the assistance of Swartz, engaged "in a series of actions [designed] to prevent and obstruct" the Forseths' proposed development and "ultimately exact a coveted piece of land Tews was previously unable or unwilling to fairly acquire--even from his own family." For example, in February 1993, the Forseths point out in their complaint that Tews claimed that Native American campgrounds of archeological or historical significance were located within the Forseths' subdivision. However, the State Historical Society of Wisconsin could not substantiate this claim.

Plaintiffs also allege in their complaint that in October 1993, Village Board President Tews persuaded the Army Corps of Engineers to perform a wetlands survey of the Forseths' property. The Corps agreed and determined that the size of the wetlands had increased about 100 feet westward since its 1982 survey, thereby reducing the area available for development. Because the increased wetlands had not been taken into account in the Forseths' plat designs, the Village Board denied their final plat.

The Forseths set out to revise their plat once more. But before they submitted another revised plat, in their complaint and brief opposing the motion to dismiss, Plaintiffs allege that President Tews, with the assistance of Administrator Swartz, conceived of a plan that would require the Forseths "to convey a buffer strip to Mr. Tews on both sides where his homestead bordered" the planned development, in exchange for Village Board approval of their subdivision. The Forseths further claimed in their complaint that they reluctantly agreed to President Tews' condition "because they were personally frustrated and financially strained by the delays and expenses incurred in connection with the prior two proposed plats." The Village Board went along with the conveyance and approved the revised final plat on the express condition that the buffer strip would be conveyed to Tews.² In February 1995 the Forseths "reluctantly" conveyed the buffer strip, valued at $51,000, to Tews for merely $6,000.³ In addition to this "forced" conveyance, the Forseths allege that Tews, Swartz, and the Village (by way of the Village Board and Plan Commission), further reduced the size of the Forseths' development by failing to adequately control the flow of storm water run-off from adjacent subdivisions, which in turn increased the area of wetlands within the development. The Forseths contend that this discharge not only caused erosion, flooding, and soil damage, but also reduced the area of developable land by five lots. Lastly, Plaintiffs allege in their complaint that Tews and Swartz, "while acting under color of state law, . . . [acted] maliciously with intent to injure Plaintiffs or with reckless disregard of Plaintiffs' rights."

B. The District Court's Opinion

In early March 1996, the Forseths filed a Notice of Circumstances of Claim and an Itemized Claim and served them upon Defendants pursuant to state law governing actions against a governmental subdivision and its officers. See Wis. Stat. sec. 893.80(1). Because Defendants failed to respond after 120 days, the Forseths' claim was deemed disallowed under Wisconsin law. See id. On March 5, 1997, the Forseths filed suit in the United States District Court for the Eastern District of Wisconsin, seeking damages under 42 U.S.C. sec. 1983 with the filing of a substantive due process claim, an equal protection claim and two takings claims under the 5th and 14th Amendments. They also asserted various state law claims, including state constitutional violations, nuisance, negligence, and conversion.⁴

Defendants, citing a lack of subject matter jurisdiction, moved to dismiss the Forseths' complaint pursuant to Fed. R. Civ. P. 12(b)(6). Defendants argued that the complaint failed to state a claim upon which relief could be granted because all four of the Forseths' federal claims failed to satisfy the ripeness requirements set forth by the Supreme Court in Williamson County Reg. Planning Comm'n. v. Hamilton Bank, 473 U.S. 172 (1985).

Because Defendants had already filed their answer, the district court construed Defendants' motion to dismiss as a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).⁵ On September 25, 1998, the trial judge granted the motion to dismiss the federal claims because they were "not ripe for adjudication" and refused to exercise supplemental jurisdiction over the state law claims. See Forseth v. Village of Sussex, 20 F. Supp. 2d 1267, 1276 (E.D. Wis. 1998). The Forseths filed a timely appeal.

II. ISSUES

On appeal, we are presented with the following issues: (1) Are the Forseths' federal claims subject to the ripeness requirements of Williamson; and (2) if they are, do their federal claims satisfy those requirements?

III. ANALYSIS

A. Standard of Review

We review de novo a district court's decision to grant a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).⁶ We accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Gustafson v. Jones, 117 F.3d 1015, 1017 (7th Cir. 1997); Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996). Resolution of the case pursuant to Rule 12(c) is appropriate only if "it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989). Additionally, the complaint should merely narrate a claim: "Having specified the wrong done to him, a plaintiff may substitute one legal theory for another without altering the complaint. . . . A complaint may not be dismissed unless it is impossible to prevail 'under any set of facts that could be proved consistent with the allegations.'" Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). Indeed, "[t]hat is why we have held that a plaintiff may supplement the complaint with factual narration in an affidavit or brief. If the extra assertions make out a claim, then the complaint stands." Albiero, 122 F.3d at 419 (citation omitted).

B. The Applicability of Williamson

In Williamson County Reg. Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 193-94 (1985), the Supreme Court articulated a special ripeness doctrine...