Forseth v. Village of Sussex

• Citation: 20 F.Supp.2d 1267
• Decision Date: 25 September 1998
• Docket Number: No. 97-C-215.,97-C-215.
• Parties: Arnold T. FORSETH, et. al., Plaintiffs, v. VILLAGE OF SUSSEX, et. al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

20 F.Supp.2d 1267

Arnold T. FORSETH, et. al., Plaintiffs, v. VILLAGE OF SUSSEX, et. al., Defendants.

No. 97-C-215.

United States District Court, E.D. Wisconsin.

September 25, 1998.

Dennis L. Fisher, Meissner, Tierney, Fisher & Nichols, Milwaukee, WI, for plaintiffs.

Mark A. McClendon, Raymond J. Pollen, Crivello, Carlson, Mentkowski & Steeves, Milwaukee, WI, for defendants.

DECISION AND ORDER

RANDA, District Judge.

This matter comes before the Court on plaintiffs' objection to the Recommendation of Magistrate Judge William E. Callahan granting defendants' motion to dismiss. For the following reasons, the Court overrules the objection and adopts the Magistrate's Recommendation.

I

The Recommendation (attached as an appendix hereto) sets forth the facts alleged in plaintiffs' complaint, all of which must be accepted as true for purposes of this motion. The Court will not restate those here. Plaintiffs object, however, to the Magistrate's summary and dismissal of the federal causes of action which arise from those facts. To clarify matters, plaintiffs set forth in their objection four federal causes of action they claim to assert:

(1) A substantive due process claim stemming from the Village of Sussex' ("the Village") act of conditioning the approval of a rezoning request and a conditional use permit on plaintiffs' agreement to convey a parcel of land to John Tews ("Tews"), insofar as the conveyance bore no substantial relation to the underlying requests;

(2) A 5th and 14th Amendment takings claim, based upon the doctrine of unconstitutional conditions, stemming from the same required conveyance;

(3) A 5th and 14th Amendment takings claim, stemming from an alleged temporary taking of a portion of plaintiffs' property via the periodic physical invasion of plaintiffs' land by storm water runoff from surrounding subdivisions; and

(4) An equal protection claim stemming from alleged "unusual and discriminatory" delay[s], reviews, inspections, etc. within the plat approval process for plaintiffs' proposed subdivision.

(Objection at 2-3.)

II

The Court essentially agrees with the Magistrate's analysis. In such situations the Court is reluctant to write separately. Here, however, while adopting the reasoning and authorities contained in the Magistrate's analysis, the Court supplements that reasoning with the following points in an effort to clarify, emphasize and/or assert additional grounds for dismissal. These points track the federal causes of action asserted above.

A. Substantive Due Process

Plaintiffs' substantive due process claim fails because the 7th Circuit does not recognize a separate cause of action in substantive due process for the denial of property rights through local land use regulation:

"Substantive due process" has the distinct disadvantage, from plaintiffs' perspective, of having been abolished in the late 1930s when the Supreme Court threw over Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). Economic substantive due process is not just embattled; it has been vanquished. The name lives on, but it is attached to a new doctrine, one that insulates fundamental rights from governmental intrusion. Some things a government cannot do at all, no matter the justification. The Gosnells do not contend that Troy interfered with their fundamental rights, a sound concession. A municipality may bring residential development to a halt for strong reasons or weak reasons. If the latter, the municipality has to pay for the privilege. [Citations omitted.] But act it may. Businesses must make their arguments under the takings clause and the rational-basis component of equal protection analysis, something the Gosnells have not tried to do.

Gosnell v. City of Troy, Illinois, 59 F.3d 654, 657 (7th Cir.1995).

The Seventh Circuit has refused to recognize the existence of substantive due process protection for property interests; such claims are cognizable only when coupled with another substantive right, such as a takings claim: "[A] substantive due process claim based on a state-created property interest is cognizable where a plaintiff claims either a violation of some other substantive constitutional right or that the state law remedies are inadequate...." [Citation omitted.]

In a pair of opinions, Chief Judge Richard Posner and Judge Frank Easterbrook have effectively incorporated substantive due process protection of nonfundamental property rights into the Takings Clause.... In the Seventh Circuit, plaintiffs with economic or property claims must "make their arguments under the takings clause and the rational-basis component of equal protection analysis." [Quoting Gosnell, supra.] In somewhat less expansive language, Chief Judge Posner has written that the Takings Clause is the principal constitutional source of protection of property rights....

Krotoszynski, Fundamental Property Rights, 85 Geo.L.J. 555, 580-82 (1997).

This is not to say there is no case law in the 7th Circuit supporting the notion of a substantive due process claim based on property rights. As noted above, there are cases in the 7th Circuit which state that substantive due process claims based on property rights are cognizable where a plaintiff alleges a violation of some other substantive constitutional right.¹ See, Doherty v. City of Chicago, 75 F.3d 318, 325 (7th Cir.1996); Polenz v. Parrott, 883 F.2d 551, 558 (7th Cir.1989). Here, plaintiffs claim the Village forced them to convey land to Tews for his own private use as a condition for favorable treatment of plaintiffs' requests for rezoning and a conditional use permit. The 5th Amendment, applied to the states through the 14th Amendment, is read typically to prohibit state governments from taking private property for private — as opposed to public — purposes, even though compensation be paid. See, Armendariz v. Penman, 75 F.3d 1311, 1320-21 (9th Cir.1996); but see also, Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 464-65 (7th Cir.1988) (explaining that notion of Takings Clause as containing negative implication prohibiting takings for private purposes is a reasonable, though not necessary, interpretation of the constitutional language). Thus, plaintiffs seem to satisfy the requirement of pleading the violation of some other substantive constitutional right. The 7th Circuit has come close to holding that such a claim can go forward under the rubric of substantive due process:

[The substantive due process] approach has its greatest appeal when the state acts outside its eminent domain powers, for example by taking property for a private rather than for a public use. Suppose a state passed a law which said that the governor could take away a person's home and give it to his brother-in-law. It could be argued that such a law, even if meticulously enforced in accordance with the requirements of due process in the sense of fair procedure, would, if the law were as arbitrary and unreasonable as it seemed, deprive the homeowner of property without due process of law. Statutes or other exertions of governmental power that lack a rational basis, in the sense of some connection however tenuous to some at least minimally plausible conception of the public interest, are held to violate due process even if there is no procedural irregularity; so if they deprive someone of life, liberty, or property, they give rise to a claim under the due process clause. When land is taken for a private rather than public use, a rational basis for the government's action, it may be argued, is lacking. The fact that the landowner has an alternative right, one to just compensation, need not be decisive, when it is understood that the purpose of the just-compensation requirement is, ... to enable government to acquire property cheap — for bare market value, extinguishing all additional value, sentimental or otherwise, that the landowner might attach to the property — on condition, however, that it is being acquired for a public and not a private use.

Gamble v. Eau Claire County, 5 F.3d 285, 286-87 (7th Cir.1993).

However, recognizing a substantive due process claim in situations where the plaintiff alleges the violation of another substantive constitutional right — specifically, the Takings Clause of the 5th Amendment — creates a distinct analytical problem: Which constitutional provision provides the cause of action? Is it the due process clause of the 14th Amendment, which is to say the so-called substantive due process prong of that clause? Or is it the 5th Amendment Takings Clause itself, made applicable to the states through the 14th Amendment. In Armendariz, cited supra, the 9th Circuit persuasively argued that such claims must proceed under the Takings Clause, not the substantive due process prong of the 14th Amendment, because it is well-established that "[w]here a particular amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.'" Armendariz, 75 F.3d at 1319 (quoting, Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1994), in turn quoting, Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989)). Armendariz also noted Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), where the U.S. Supreme Court "strongly suggests" that the Takings Clause is the sole or primary guide for reviewing a "private taking" claim. Armendariz, 75 F.3d at 1321-24.

The Court believes the 7th Circuit would follow the lead of the 9th Circuit on this issue. The 7th Circuit is generally hostile to the notion that property rights can be protected under the rubric of substantive due process. Consequently, Professor Krotoszynski concludes that the 7th Circuit has already "effectively incorporated substantive due process...