In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1359

Harbours Pointe of Nashotah, LLC,

Plaintiff-Appellant,

v.

Village of Nashotah,

Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-CV-0753--Patricia J. Gorence, Magistrate Judge.

Argued October 31, 2001--Decided January 28, 2002



  Before Bauer, Coffey and Diane P. Wood,
Circuit Judges.

  Bauer, Circuit Judge. Harbours Pointe of
Nashotah, LLC ("Harbours Pointe"), filed
suit against the Village of Nashotah
("Village") claiming that, under color of
law, the Village’s collection of a
special assessment resulted in a taking
of Harbours Pointe’s property in
violation of the rights and protections
afforded by the United States and Wiscon
sin Constitutions and 42 U.S.C. sec.
1983. The district court granted summary
judgment in favor of the Village because
Harbours Pointe failed to exhaust
adequate state remedies. We affirm the
judgment of the district court.

I.   Background

  In 1979, the Village and the Delafield-
Hartland Water Pollution Control
Commission entered into a contract for a
public works project. Under the contract,
the Village was obligated to construct a
local sewer system to provide waste water
collection service to its users. The
Village would connect the local system to
the regional system, which was
constructed, operated and maintained by
the Delafield-Hartland Commission.

  The Village took all necessary steps, as
required by law, to levy the reserve
capacity assessments to fund the project.
On November 19, 1980, at a duly noticed
meeting, the Village Board passed a
preliminary resolution declaring its
intent to levy assessments upon every
parcel of land in the Village to pay for
the construction of the local sanitary
sewer system. A public hearing on the
assessments took place on December 3,
1980, pursuant to the requirements of
Wis. Stat. sec. 66.60(7). Subsequently,
the Village Board adopted a final
resolution levying the reserve capacity
assessments for the public works project.
The final resolution was published by the
Village Clerk in late December 1980.

  Prior to November 1996, the Village had
collected sufficient assessments to pay
for the entire indebtedness incurred for
the public works project. Nevertheless,
the Village continues to collect the
December 1980 reserve capacity assessment
from developers in the Village, including
Harbours Pointe.

  Harbours Pointe obtained property in the
Village in November 1996. Before Harbours
Pointe’s purchase, no Village reserve
capacity assessments had been collected
for this property. On January 15, 1997,
Harbours Pointe entered into a
Developer’s Agreement with the Village
concerning the development of the
property. The agreement provided that
Harbours Pointe would "pay any legal
reserve capacity assessment to be used
for the costs of reserve capacity in the
sanitary sewerage system and
treatmentfacilities for the benefit of
[Harbours Pointe]." The agreement stated,
"[t]he reserve capacity assessments
against the above described property
shall be an amount established by the
Village and the Delafield-Hartland Water
Pollution Control Commission."

  In accordance with the Developer’s
Agreement, Harbours Pointe paid the
Village a total of $291,700. Of this
amount, $137,000 constituted payment of
the December 1980 reserve capacity
assessment and is the subject of this
appeal. These payments were made after
the Village had collected sufficient
funds to pay for the public works project
for which the assessment was levied.

  Harbours Pointe originally filed suit in
the Circuit Court of Waukesha County,
Wisconsin. In its complaint, Harbours
Pointe challenged the Village’s
collection of the special assessment
after the debt was satisfied in 1996.
Harbours Pointe claimed that it was
entitled to a refund of money paid to the
Village because the Village had collected
$291,700 without adopting an impact
ordinance in accordance with the
statutory and procedural requirements of
section 66.55 of the Wisconsin Statutes.
Alternatively, Harbours Pointe argued
that the Village, acting under color of
law, had taken Harbours Pointe’s property
in violation of its rights under the
United States and Wisconsin Constitutions
and 42 U.S.C. sec. 1983. The Village
removed the action to federal court,
pursuant to 28 U.S.C. sec.sec. 1441(a)
and 1446(b). Both parties consented in
writing to magistrate jurisdiction over
the matter.

  The parties filed cross-motions for
summary judgment. The district court
denied both motions, but determined that
the $137,000 paid by Harbours Pointe to
the Village was not an impact fee.
Rather, the district court found
thisportion of the payments was the
reserve capacity assessment levied by the
Village pursuant to the December 1980
final assessment resolution.

  Both parties later renewed their motions
for summary judgment. The district court
granted the Village’s motion, holding
that Harbours Pointe was barred from
pursuing its claim against the Village
because it had failed to timely pursue an
adequate state court remedy.
Specifically, the district court found
that section 66.60 of the Wisconsin Stat
utes required Harbours Pointe to file a
claim contesting the assessment within 90
days of entering into the Developer’s
Agreement with the Village. The district
court determined that section 66.60(12)
of the Wisconsin Statutes provided
Harbours Pointe with an adequate state
remedy, and by failing to utilize this
remedy, Harbours Pointe forfeited its
claim. Harbours Pointe then filed this
appeal.

II.   Discussion

  We review the district court’s grant of
summary judgment de novo and we construe
the evidence in the light most favorable
to the non-moving party. Summary judgment
is appropriate if, after reviewing the
pleadings, affidavits and other
supporting materials, there is no genuine
issue as to any material fact and the
moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c).

  Title 42 of the United States Code,
section 1983, provides, "[e]very person
who, under color of any statute,
ordinance, regulation, custom, or usage,
of any State . . . subjects, or causes to
be subjected, any citizen of the United
States . . . to the deprivation of any
rights, privileges, or immunities secured
by the Constitution and laws, shall be
liable to the party injured in an action
at law . . . ." To state a claim under
this provision, a plaintiff must allege
that he was deprived of a federal right
and that the deprivation was imposed upon
him by a person acting under color of
state law. Gomez v. Toledo, 446 U.S. 635,
640 (1980).

  The Fifth Amendment of the United States
Constitution, made applicable to the
states through the Fourteenth Amendment,
provides: "[N]or shall private property
be taken for public use, without just
compensation." U.S. Const. amend. V, sec.
4. Similarly, Article 1, section 13 of
the Wisconsin Constitution states that
"[t]he property of no person shall be
taken for public use without just
compensation therefor." Wis. Const. art. I,
sec. 13. A landowner is entitled to just
compensation if a state or one of its
subdivisions takes his land or if,
without actually taking possession, a
regulation prevents the owner from
deriving any economic value from the
land. Gamble v. Eau Claire County, 5 F.3d
285, 286 (7th Cir. 1993).

  Harbours Pointe argues that the
Village’s actions, under color of law, in
collecting the special assessment after
the 1996 satisfaction of the debt for the
subject public improvements resulted in a
taking in violation of the United States
and Wisconsin Constitutions and 42 U.S.C.
sec. 1983. The Village argues that
section 66.60(12) of the Wisconsin
Statutes provided Harbours Pointe with an
adequate state remedy and because
Harbours Pointe failed to exhaust this
statutory remedy, it has forfeited its
right to challenge the reserve capacity
assessments. We agree with the Village.

  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.

  Section 66.60/1 of the Wisconsin
Statutes authorizes local municipalities,
such as the Village, to levy and collect
special assessments for specific public
works projects, provided the municipality
follows the proper statutory procedures.
Wis. Stat. sec. 66.60. Harbours Pointe
argues that section 66.60 provides it
with no substantive or procedural remedy
for the taking under the circumstances of
this case. We disagree.

  Interpretation of a statute requires the
court to look at the statute as a whole.
Responsible Use of Rural and Agric. Land
v. Pub. Serv. Comm’n, 619 N.W.2d 888, 901
(Wis. 2000). Section 66.60(12)(a) of the
Wisconsin Statutes states that any person
who feels aggrieved by any action taken
by a municipality pursuant to section
66.60 may appeal therefrom, to the
circuit court of the county in which the
affected property is situated, within 90
days after the date of notice or
publication of the final resolution. Wis.
Stat. sec. 66.60(12)(a). Subsection
66.60(12)(e) provides that an appeal
under section 66.60(12) "shall be the
sole remedy of any person aggrieved by a
determination of the governing body . . .
." Wis. Stat. sec. 66.60(12)(e) (emphasis
added). In addition, section 66.60(11)
states that "[i]f the cost of the project
shall be less than the special
assessments levied, the governing body .
. . shall reduce each special assessment
proportionately and where any assessments
. . . have been paid the excess over cost
shall be applied to reduce succeeding
unpaid instalments . . . or refunded to
the property owner." Wis. Stat. sec.
66.60(11).

  It is evident from the relevant portions
of section 66.60 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.

  A remedy must be adequate in order to
preclude a federal action asserting a
takings claim. City of Monterey, 526 U.S.
at 721. We believe that the remedies
afforded under section 66.60(12) are more
than adequate. See, e.g., Kasper v.
Larson, 372 F.Supp. 881, 883 (E.D. Wis.
1974). Indeed, under section
66.60(12)(b), any appeal is "tried and
determined in the same manner as cases
originally commenced in court and costs
awarded." Wis. Stat. sec. 66.60(12)(b).
Additionally, section 66.60(12)(d)
provides that if the court finds that any
assessment or any award of damages is ex
cessive or insufficient, such assessment
or award need not be annulled, but the
court may reduce or increase the
assessment or award of damages. Wis. Stat.
sec. 66.60(12)(d).

  To its own detriment, Harbours Pointe
failed to pursue these remedies. Harbours
Pointe did not purchase property in the
Village until November 1996. Therefore,
under section 66.60(12)(a), Harbours
Pointe had no basis to contest the
special assessment within 90 days of the
December 1980 final resolution. However,
on January 15, 1997, Harbours Pointe
entered into the Developer’s Agreement
with the Village, in which Harbours
Pointe agreed "to pay any legal reserve
capacity assessments" for "the sanitary
sewerage collection and treatment
facilities." This agreement gave Harbours
Pointe notice of the resolution and the
assessment. Accordingly, the 90-day
period in section 66.60(12) started
running on the date that Harbours Pointe
entered into this agreement and Harbours
Pointe had until April 15, 1997 to
challenge the assessment.

  A property owner cannot "let the time
for seeking a state remedy pass without
doing anything to obtain it and then
proceed in federal court on the basis
that no state remedies are open." Gamble,
5 F.3d at 286. An unexcused failure to
exhaust adequate statutory remedies
forfeits a claimant’s rights. Id. Because
Harbours Pointe waited nineteen months
after receiving notice of the assessment
and then filed a complaint on July 16,
1998, it is now barred from recovering
any refund from the Village. Harbours
Pointe failed to pursue its state
remedies in a timely fashion and has
forfeited its right to assert a claim for
just compensation under either Wisconsin
or federal law. Id.

III.   Conclusion

  We AFFIRM the judgment of the district
court.

FOOTNOTE

/1 Section 66.60 of the Wisconsin Statutes was
renumbered and repealed in part by 1999 Wis. Act
150, sections 525 to 535, effective January 1,
2001. It is now Wis. Stat. sec. 66.0703. The
substance of the relevant portions of this stat-
ute remains the same. Any changes made to the
statute are irrelevant to this appeal.
