01-1359 Harbours Pointe of Nashotah, LLC, v. Village of Nashotah

Listen to this article

“If a state provides adequate procedures for seeking just compensation, a property owner cannot state a claim under federal law until he has used those procedures and been denied compensation. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999). The state’s action is not ‘complete in the sense of causing a constitutional injury unless or until the State fails to provide an adequate post[-]deprivation remedy for the property loss.’ Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985). Accordingly, a property owner has not suffered a violation of the Takings Clause ‘until the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the state for obtaining such compensation.’ Id.

“It is evident from the relevant portions of section 66.60 [currently 66.0703] that the statute envisions a situation where a special assessment levied might exceed the cost of the project. Without citing any authority, Harbours Pointe argues that the Village was required to refund the excess funds collected, and because the Village failed to do so, section 66.60(12)(a) is not an appropriate remedy. A clear reading of the statute, however, demonstrates that section 66.60(12)(a) explicitly provides a claimant with the ‘sole remedy’ for any complaint regarding a municipality’s collection of assessments under section 66.60. Section 66.60(12)(a) governs this dispute between Harbours Pointe and the Village and any contrary interpretation of this statutory scheme would undermine the clear intent of the Wisconsin legislature.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Bauer, J.