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DeCoster v. Waushara County Highway Department

United States District Court, E.D. Wisconsin

May 30, 2018



          William C. Griesbach, Chief Judge United States District Court.

         Plaintiff Ronald DeCoster brought this action against Defendants Waushara County and the Waushara County Highway Department (collectively “the County”) seeking compensation for litigation costs and expenses, including attorney's fees, incurred in connection with an alleged taking of his property by the County. DeCoster asserts his claim for compensation under the Uniform Relocation Assistance, Acquisition and Real Property Policies Act of 1970 (the “URA”), 42 U.S.C. § 4601, et seq., as well as 49 C.F.R. § 24.107 and Wis.Stat. § 32.19(3)(d). He also seeks damages under 42 U.S.C. § 1983. The court has jurisdiction under 28 U.S.C. § 1331. The case is before the court on the County's motion for summary judgment. For the reasons that follow, the County's motion will be granted and the case dismissed.


         DeCoster and his wife, Nicole, own land located at ¶ 6190 County Road I in Fremont, which is in Waushara County, Wisconsin. DeCoster Aff. ¶ 1, ECF No. 21. In the fall of 2009, the Wisconsin Department of Transportation (WisDOT) authorized a reconstruction project on County Trunk I. Def.'s Proposed Material Facts (DPMF) ¶ 1, ECF No. 18 (citing Compl. ¶ 8, ECF No. 1). The reconstruction project relied largely on funding from the federal government, although WisDOT also contributed some funds for the project costs. Id. ¶ 2 (citing Compl. ¶ 10). Part of the project included reconstruction of a highway bridge over Alder Creek, which runs east to west and cuts across the DeCosters' property. Id. ¶ 3 (citing Compl. ¶ 12). Because the bridge was adjacent to the DeCosters' property, the reconstruction projected affected a parcel of their property containing approximately 300 feet of fencing. Id. ¶ 5; Compl. ¶ 16; Pl.'s Statement of Facts (PSF) ¶¶ 4-5, ECF No. 23.

         The County believed that the fence encroached four feet onto the highway right of way, but DeCoster maintained that it was properly on his property. DPMF ¶¶ 5-6; PSF ¶ 5. When the County asked DeCoster to apply for a revocable occupancy permit, which would have allowed the fence to remain in place subject to removal if necessary, DeCoster declined the request. DPMF ¶¶ 7-8; PSF ¶ 7. Subsequently, the County issued an order under Wis.Stat. § 83.01(7)(f) to remove the fence. DPMF ¶ 9. DeCoster refused to comply with the order, so the County commenced an action in the Waushara County Circuit Court to secure removal under Wis.Stat. § 86.04. DPMF ¶¶ 9-10 (citing Compl. ¶ 17). The DeCosters filed a counterclaim for inverse condemnation. Id. ¶ 11 (citing Compl. ¶ 18).

         In January 2013, the circuit court approved a stipulation between the DeCosters and the County. See Stip., ECF No. 1-1 at 7-9. Under the stipulation, the County agreed to pay the DeCosters $7, 948.24 in exchange for a quitclaim deed to two parcels of land. Stip. ¶ 1. Although the County expressly maintained that no taking had occurred, it also agreed that the court could treat its acquisition of the property as a taking for the limited purpose of determining whether the DeCosters could recover their litigation expenses under Wis.Stat. § 32.28. Stip. ¶ 2. DeCoster provided the County with the quitclaim deed in May 2013, and the County now owns the disputed parcel. DPMF ¶ 15 (citing Compl. ¶ 20).

         In the subsequent litigation regarding their efforts to recover their litigation expenses, the DeCosters sought a $110, 000 reimbursement. Compl. ¶ 21. After holding an evidentiary hearing and considering post-hearing briefing, the circuit court issued an extensive memorandum decision in December 2013 awarding litigation expenses of $31, 560.91 to the DeCosters. DPMF ¶¶ 17-18; Compl. ¶ 21; see also ECF No. 17 at 9-58. The circuit court reasoned that the DeCosters' litigation expenditures were reasonable through April 2011-when the County offered a settlement similar to the ultimate stipulated sale amount-but all subsequent expenses incurred were not. ECF No. 17 at 43. After the circuit court entered judgment in January 2014, the DeCosters appealed, but the Wisconsin Court of Appeals affirmed the circuit court's decision and the Wisconsin Supreme Court denied their petition for review. DPMF ¶¶ 19-21 (citing Compl. ¶ 22). The County ultimately issued a check to the DeCosters for $31, 560.91, but the DeCosters have not cashed that check. Id. ¶ 22 (citing Compl. ¶ 24).


         Summary judgment is appropriate when the moving party shows 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. Fed.R.Civ.P. 56(a). All reasonable inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for summary judgment must “submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted source and internal quotation marks omitted). “The nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is properly entered against a party “who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotation mark omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).


         The URA serves the express purpose of “establish[ing] a uniform policy for the fair and equitable treatment of persons displaced as a direct result of programs or projects undertaken . . . with Federal financial assistance.” 42 U.S.C. § 4621(b). The URA accomplishes this goal, at least in part, by providing that the head of a federal agency may not approve the use of federal financial assistance by an acquiring state agency without receiving assurances that property owners will be reimbursed for necessary expenses as provided for in 42 U.S.C. §§ 4653 and 4654. 42 U.S.C. § 4655(a)(2). As relevant here, § 4654(a) provides that an agency acquiring real property “shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings.” (Emphasis added.) In turn, 49 C.F.R. § 24.107(c) clarifies that “[t]he owner of the real property shall be reimbursed for any reasonable expenses, including reasonable attorney, appraisal, and engineering fees, which the owner actually incurred because of a condemnation proceeding, if . . . [t]he Agency effects a settlement of such proceedings.”[1] Wisconsin law expressly incorporates these URA provisions into state condemnation law, providing that, “in the case of a program or project receiving federal financial assistance, a condemnor shall . . . make any additional payment required to comply with the federal [Uniform Act], 42 USC. 4601 to 4655, and any regulations adopted thereunder.” Wis.Stat. § 32.19(3).

         The URA does not provide for an express private right of action that would permit DeCoster to proceed against the County on a claim for litigation expenses. See Delancey v. City of Austin, 570 F.3d 590, 593 n.4 (5th Cir. 2009). Consequently, DeCoster's assertion that the County failed to pay his reasonable litigation expenses turns upon whether the URA created an implied private right of action that would allow him to proceed on a claim for damages under 42 U.S.C. § 1983. Critically, “[i]n order to seek redress through § 1983, . . . a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997). An evaluation of three factors can assist the court in determining whether a federal statute creates a private right enforceable under § 1983:

First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.

BT Bourbonnais Care, LLC v. Norwood, 866 F.3d 815, 820 (7th Cir. 2017) (quoting Blessing, 520 U.S. at 340-41). These factors, however, “set the bar high, ” as “nothing ‘short of an unambiguously conferred right [will] support a cause of action brought under § 1983.'” Planned Parenthood ofInd., Inc. v. Comm'r of Ind. State Dep't of Health, 699 F.3d 962, 968 (7th Cir. 2012) (alteration in original) (quoting Gonzaga University v. Doe, 536 U.S. 273, 283 (2002)). “Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual ...

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