Zealy v. City of Waukesha

• Citation: 153 F.Supp.2d 970
• Decision Date: 06 August 2001
• Docket Number: No. 00-C-994.,00-C-994.
• Parties: Alfred A. ZEALY, Plaintiff, v. CITY OF WAUKESHA, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

153 F.Supp.2d 970

Alfred A. ZEALY, Plaintiff, v. CITY OF WAUKESHA, Defendant.

No. 00-C-994.

United States District Court, E.D. Wisconsin.

August 6, 2001.

COPYRIGHT MATERIAL OMITTED

James W. Hammes, Cramer Multhauf & Hammes Waukesha, WI, for plaintiff.

Raymond J. Pollen, Michele M. Ford, Crivello, Carlson, Mentkowski & Steeves, S.C., Milwaukee, WI, for defendant.

DECISION AND ORDER

CURRAN, District Judge.

Alfred Zealy is suing the City of Waukesha, Wisconsin for violating his right to due process by depriving him of consideration allegedly due him under an easement contract. Zealy owns 10.38 acres of land within the City, part of which was rezoned as a wetland conservancy district. The Plaintiff says that the Defendant has refused to compensate him for an easement he granted to the City prior to the rezoning so he is now seeking relief pursuant to 42 U.S.C. § 1983. The Defendant has answered and has denied liability. After the deadline for the completion of all discovery, both parties moved for summary judgment on the grounds that no material facts are in dispute and that the movant is entitled to judgment as a matter of law. See Federal Rule of Civil Procedure 56(c).

I. FACTS

Plaintiff Alfred Zealy is the beneficial owner¹ of a 10.38 acre parcel of land which was annexed by the City in 1967. After annexation, the land was temporarily zoned as residential. Nevertheless, throughout the events giving rise to this action, the parcel has been used by the Zealy family for growing crops in a truck farming operation and for the mining of topsoil.

On March 16, 1982, the Plaintiff and his predecessors-in-title executed an easement agreement in favor of the City of Waukesha. Zealy claims that, as an inducement to entering into this contract, the City of Waukesha represented to him that, if the easement were granted, the property could be developed for residential purposes; that the development could be connected to the sanitary sewer main; and that no special assessments would be levied against the property as a result of the installation of the sanitary sewer main. Zealy says that, during the negotiations, he told the City that he intended to construct a multi-family residence on the property. Pursuant to the terms of the easement agreement, the City of Waukesha was authorized to, and did subsequently, construct a storm sewer and sanitary sewer easement across a portion of the property.

Meanwhile, the City was attempting to develop a plan to protect and manage wetlands in and adjacent to the City. A plan was recommended, but never fully adopted. Nevertheless, in 1985, the City decided to rezone the wetlands (which included approximately 8.2 acres of Zealy's parcel) as a conservancy. The rest of Zealy's property was zoned for residential and commercial use. The City of Waukesha acknowledged that it had made prior commitments to some owners of property subject to conservancy zoning and that the City would be required to compensate them. Zealy contends that he is one of those property owners, while the City asserts that it had made no prior commitments to him.

In 1990, believing that the City would not compensate him for his property, the Plaintiff initiated an inverse condemnation proceeding pursuant to Section 32.10 of the Wisconsin Statutes. The action made its way through the state courts until, in 1996, the Supreme Court of Wisconsin ruled that the inverse condemnation action was not ripe, and that the City of Waukesha had not effected a taking of the Plaintiff's property. See Zealy v. City of Waukesha, 201 Wis.2d 365, 548 N.W.2d 528 (1996). Four years later, Zealy commenced this civil rights action in federal court where the parties' cross motions for summary judgment are now ready for decision.

II. LEGAL STANDARDS FOR CROSS MOTIONS FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56(c), a trial judge must grant summary judgment if the evidence offered demonstrates that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party initially must inform the court of the basis for its motion and identify "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," that the movant believes demonstrate the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 333, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Federal Rule of Civil Procedure 56(c)); Adickes v. S.H. Kress & Company, 398 U.S. 144, 153, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

A "genuine" factual issue is one that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either side. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. 2505.

Merely because all the parties in a case move for summary judgment does not mean that any party must prevail. See Home Insurance Company v. Aetna Casualty & Surety Company, 528 F.2d 1388, 1390 (2d Cir.1976) (per curiam). If no party demonstrates that summary judgment in its favor is warranted, no motion will be granted. See e.g., Schwabenbauer v. Board of Education, 667 F.2d 305, 313-14 (2d Cir.1981). The court must consider each party's motion separately and decide whether that party is entitled to judgment as a matter of law.

When the moving party bears the ultimate burden of proof on an issue upon which it seeks summary judgment, it has met its burden by showing sufficient evidence to justify a verdict in its favor. In contrast, when the moving party does not bear the ultimate burden of proof on an issue, it has met it burden by indicating that the nonmoving party has failed to adduce sufficient evidence to raise a genuine issue of material fact about the issue. See Catrett, 477 U.S. at 322-24, 106 S.Ct. 2548.

Once a movant meets its initial burden, thereby establishing a prima facie case for summary judgment, the opponent of the motion must adduce enough evidence to support a jury verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. The sufficiency of this evidence implicates the substantive evidentiary standard of proof that would apply at a trial on the merits. Thus, in a civil case such as this, the record must show that the trier of fact could find by a preponderance of the evidence that the movant is entitled to judgment. See Id. at 252, 106 S.Ct. 2505.

The nonmovant cannot rest upon the allegations in its pleading, but must set forth specific facts showing that here is a genuine issue for trial. See First National Bank of Cicero v. Lewco Securities Corporation, 860 F.2d 1407, 1411 (7th Cir.1988). In assessing whether there are any factual issues to be tried, a court must view the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam). If the nonmovant's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See Id. at 249-50, 82 S.Ct. 993.

Guided by these standards, the court will now proceed to determine whether either movant is entitled to judgment under the applicable law.

III. DISCUSSION AND DECISION

A. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

1. Formulation of Zealy's Claim

The Plaintiff has moved for a summary judgment of liability (therefore, partial summary judgment). He says that the City of Waukesha, acting under color of state law, deprived him of contract rights granted by virtue of the easement contract entered into between the parties on March 16, 1982. As a result, Zealy concludes, that he has been denied due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. See Brief in Support of Plaintiff's Motion for Summary Judgment at 4. He argues that, because the Wisconsin Supreme Court ruled that there had been no taking and that the easement was not a protected property right under the Wisconsin Constitution, he has no remedy under state law. He has brought this due process claim in federal court because he believes that: "the constitutional guarantees afforded him by the Fifth and Fourteenth Amendments to the United States Constitution extend beyond the limited guarantees afforded Zealy by the Wisconsin Constitution." Id. at 10.²

Zealy's theory of recovery has been unclear and elusive throughout this case. In his federal Complaint, he set forth his cause of action as follows:

That the Defendant, acting under a color of law, has taken from the Plaintiff all, or substantially all, reasonable use of those portions of the Plaintiff's Property which were rezoned from the R-1 Residential zoning classification to the C-1 Conservancy zoning classification, and the Defendant's actions, together with the Defendant's refusal to compensate the Plaintiff for that taking, has deprived the Plaintiff of due process of law and equal protection of the laws, which rights are afforded the Plaintiff in accordance with the Fifth and Fourteenth Amendments of the United States Constitution.

Complaint at ¶ 16. When the Defendant, not surprisingly, proceeded on the theory that this is a Takings Clause case, the Plaintiff shifted position. Restating his claim in response to the Defendant's motion for summary judgment, the Plaintiff explained that:

The City's argument is based upon either its misunderstanding or mischaracterization...