Kohlbeck v. Village of Pulaski

• Decision Date: 14 March 1991
• Docket Number: Civ. A. No. 90-C-0383.
• Parties: Stephen D. KOHLBECK and Barbara L. Kohlbeck, and Cyril D. Kohlbeck and Carole M. Kohlbeck, Plaintiffs, v. VILLAGE OF PULASKI, a Wisconsin municipal corporation, Ralph Tilkens, Tim Grygiel, Ron Kryger, Delores Hylok, Gene Gajewski, Bob Van Lannen, Roger Van Lannen, Randy Wichlacz, Robert Tetzlaff, and Gary F. Drezwiecki, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

759 F. Supp. 490

Stephen D. KOHLBECK and Barbara L. Kohlbeck, and Cyril D. Kohlbeck and Carole M. Kohlbeck, Plaintiffs, v. VILLAGE OF PULASKI, a Wisconsin municipal corporation, Ralph Tilkens, Tim Grygiel, Ron Kryger, Delores Hylok, Gene Gajewski, Bob Van Lannen, Roger Van Lannen, Randy Wichlacz, Robert Tetzlaff, and Gary F. Drezwiecki, Defendants.

Civ. A. No. 90-C-0383.

United States District Court, E.D. Wisconsin.

March 14, 1991.

James R. Sickel, Hinkfuss, Sickel, Petitjean & Long, Green Bay, Wis., for plaintiffs.

Raymond J. Pollen, Riordan, Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, Wis., for defendants.

DECISION AND ORDER

REYNOLDS, Senior District Judge.

BACKGROUND

On April 19, 1990, plaintiffs Stephen, Barbara, Cyril, and Carol Kohlbeck ("the Kohlbecks") commenced a Title 42 United States Code § 1983 action in this court alleging that the defendants, the Village of Pulaski and the Pulaski Village Board members ("hereafter Pulaski") had violated their federal constitutional rights by rescinding their mobile home park permit and delaying their construction of a mobile home park development. Specifically, the Kohlbecks claim that Pulaski (1) violated their fifth and fourteenth amendment right not to be deprived of their property without due process of law; and (2) deprived them of their fourteenth amendment right to receive equal protection of the law. In addition, the Kohlbecks claim that Pulaski's deprivation of their property right without due process violates Article I of the Constitution of the State of Wisconsin.

On May 31, 1990, Pulaski moved this court to dismiss the Kohlbecks' complaint on the grounds that it fails to state a claim and is barred by principles of res judicata. On July 2, 1990, the Kohlbecks objected to Pulaski's motion and submitted numerous documents in support of their arguments. On September 27, 1990, this court held a hearing on Pulaski's motion where both parties presented oral argument. Pulaski argued that its motion should be treated as one for summary judgment because the record had been supplemented with documents other than the complaint. This court agreed with Pulaski and provided both parties with an opportunity to supplement the record. Hill v. Trustees of Indiana University, 537 F.2d 248, 251 (7th Cir.1976). The parties filed additional briefs and documents on October 9th and 10th. After considering the numerous briefs and arguments, this court: (1) dismisses without prejudice the Kohlbecks' state law due process claim; (2) dismisses with prejudice the Kohlbecks' § 1983 equal protection claim; and (3) stays the Kohlbecks' § 1983 due process claim. In addition, this court closes this action for statistical purposes.

FACTS

On January 26, 1987, the Kohlbecks submitted to Pulaski an Application for Permit and License to Operate a Mobile Home Park in Pulaski (Jul. 27, 1990 Vande Castle Aff.Exh. K). In the letter accompanying their application the Kohlbecks stated:

The Public Works Commission has also endorsed the plan except that they had questions with regard to the sewer and water. The Applicants (Kohlbecks) would like to address that to you at this time so that there is no question with regard to any costs for the extension of the sewer and water.

The Applicants will pay for all the construction costs of the extension of the sewer and water to the proposed site and are ready, willing and able to sign any and all documents, contracts and bonds required by the Village Pulaski to insure payment for the construction costs.

(Id.). During a regular Pulaski Village Board ("the Board") meeting on March 2, 1987, the Board decided that the Kohlbecks' application was complete and passed a motion to issue the Kohlbecks a permit for the construction of a mobile home park (Complaint at 7 ¶ 8). On the same day, Pulaski's Village Clerk issued the permit to the Kohlbecks (Id. at 8 ¶ 13). During a special Board meeting on March 20, 1987, however, the Board rescinded the permit it had issued on March 2nd (Id. at 8 ¶ 14).

On March 30, 1987, the Kohlbecks commenced an action in the Brown County Wisconsin Circuit Court, case number 87-CV-830, seeking a declaratory judgment, pursuant to Wis.Stat. § 806.04, that the Board's March 20, 1987 rescission of their permit had no effect or in the alternative a mandamus ordering the Clerk of Pulaski to issue the Kohlbecks a new permit (Jun. 29, 1990 Sickel Aff.Exh. 3 ¶¶ 9 & 16).

Pulaski moved the Brown County Circuit Court for a preliminary injunction prohibiting the Kohlbecks or their agents from undertaking any further site development until the case was resolved (Jul. 27, 1990 Vande Castle Aff.Exh. L). On June 2, 1987, the circuit court held a hearing on Pulaski's motion. On this same day, the Kohlbecks submitted the affidavit of Steve Kohlbeck to the circuit court indicating that they had incurred approximately $30,000 in construction expenses for the mobile home park and $40,000 in losses due to Pulaski's rescission of the permit (Sickel Jun. 29, 1990 Aff.Exh. 5). On June 29, 1987, nunc pro tunc to June 2, 1987, the circuit court granted Pulaski's preliminary injunction motion and required Pulaski to provide a $50,000.00 bond pursuant to Wis. Stat. § 813.06 (Id.).¹ On July 15, 1987, the Kohlbecks submitted a "Notice of Claim" to Pulaski stating that they had incurred losses, damages, and expenses in the amount of $354,956.26 as a result of Pulaski's revocation of the mobile home park permit (Sickel Jun. 29, 1990 Aff.Exh. 4).

On April 13, 1988, the circuit court made the following conclusions of law in the Kohlbecks' action:

1. That the Plaintiffs Kohlbecks, by reason of the permit granted by the Village Board of the Village of Pulaski on March 2, 1987, had acquired a property right to develop Parcel B as a mobile home park.

2. That the action of the Village Board of the Village of Pulaski on March 20, 1987, rescinding the permit issued to the Plaintiffs was an unconstitutional act by the Board and denied the Plaintiffs of a property right without due process.

(Id. Exh. 8 at 6). The circuit court then entered the following judgment:

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the action of the Village Board of the Village of Pulaski taken on March 20, 1987, rescinding the permit issued to the Plaintiffs on March 2, 1987, is invalid. That the permit issued to the Plaintiffs on March 2, 1987, is a lawful permit and Plaintiffs should be permitted to pursue the construction of the mobile home park.

IT IS FURTHER ORDERED that the restraining order preliminary injunction issued in this matter is vacated.

(Id. Exh. 8 at 6-7).

On September 1, 1988, Pulaski moved the circuit court to enjoin the Kohlbecks from allowing individuals to occupy the mobile home park until construction of the park was complete and the Kohlbecks had received a written license from Pulaski to operate the park (Jul. 27, 1990 Vande Castle Aff.Exh. Q). The written license was separate from the development permit, and was required prior to occupancy of the development.

On September 6, 1988, the Kohlbecks responded to Pulaski's motion by moving the circuit court to find Pulaski in contempt of the circuit court's April 13, 1988 decision (Jun. 29, 1990 Sickel Aff.Exh. 6). The Kohlbecks claimed that Pulaski was in contempt because it had failed to issue them a written license for the operation of the mobile home park and had interfered with the construction and operation of the park (Id. Exh. 6). Finally, the Kohlbecks requested the court: (1) to award them $10,000 in damages for the delay which Pulaski's actions had caused; (2) to fine Pulaski $10,000 for every day Pulaski remained in contempt; and (3) to imprison the Pulaski officials who refused to comply with the court's order (Id. Exh. 6 at 3).

On September 23, 1988, the circuit court entered an order resolving the Kohlbecks' September 6th contempt motion (Id. Exh. 7 Sep. 23, 1988 Order).² The court's order was based upon a stipulation between the Kohlbecks and Pulaski which set up conditions which the Kohlbecks would satisfy prior to obtaining the operating license. Although the order did not explicitly grant the Kohlbecks' request for $10,000 in damages, it stated that "Costs will abide further order of the Court and the Court will enter such other and further orders as it deems appropriate." (Id. Exh. 7 Sep. 23, 1988 Order ¶ 4).

On October 12, 1988, the Kohlbecks moved the circuit court to find Pulaski in contempt of the court's September 23, 1988 order (Id. Exh. 7). The Kohlbecks claimed that Pulaski still had not issued them a written license to operate the mobile home park and that Pulaski continued to take actions to frustrate the operation of the park (Id. Exh. 7). The Kohlbecks again requested damages for the contempt in the amount of $10,000 (Id. at Exh. 7).

The record in this present case is unclear as to whether or not the circuit court ever rendered a written decision on the Kohlbecks' second contempt motion. Pulaski issued the Kohlbecks conditional written licenses to operate the mobile home park on October 7th and October 14, 1988, and a final unconditional written license on October 21, 1988 (Jul. 27, 1990 Vande Castle Aff.Exh. S). The issuance of the licenses rendered Pulaski's September 1, 1988 motion for an injunction moot. In addition, the issuance of the licenses also apparently rendered the Kohlbecks' second contempt motion moot in the eyes of the Kohlbecks and the circuit court because no other documents concerning this motion have been filed with this court.

On April 19, 1990, the Kohlbecks commenced this action seeking compensatory and punitive damages against Pulaski for two causes of action. First, the Kohlbecks claim that Pulaski deprived them of their property rights without due process of law, as required by both the United States and Wisconsin Constitution, when they rescinded the mobile home park permit and subsequently delayed the issuance of...