Basso Builders Inc et al v. Town of Geneva
Filing
59
ORDER signed by Judge J P Stadtmueller on 10/25/2024 DENYING 55 Defendant's Motion for Reconsideration. (cc: all counsel)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BASSO BUILDERS INC. and JOSH
BASSO,
Plaintiffs,
Case No. 21-CV-697-JPS-JPS
v.
TOWN OF GENEVA,
ORDER
Defendant.
1.
INTRODUCTION
In September 2024, the Court granted in part and denied in part
Defendant Town of Geneva’s (“Defendant”) motion for summary
judgment. ECF No. 53. The Court dismissed Plaintiffs Basso Builders Inc.
and Josh Basso’s (“Plaintiffs”) equal protection claim but denied
Defendant’s motion for summary judgment as to Plaintiffs’ takings claim.
Id. at 2, 38–39.
Defendant now moves for reconsideration of the Court’s order to the
extent that it denied summary judgment in part. ECF No. 55. Plaintiffs
opposed the motion, ECF No 56, and Defendant replied, ECF No. 57. For
the reasons discussed herein, the motion for reconsideration must be
denied.
2.
STANDARD OF REVIEW
The instant motion for reconsideration is governed by Rule 54(b).
Rule 54(b) provides that a nonfinal order “may be revised at any time before
the entry of a judgment.” Fed. R. Civ. P. 54(b). A court’s discretion to
reconsider an order under Rule 54(b) is “sweeping.” Galvan v. Norberg, 678
F.3d 581, 587 n.3 (7th Cir. 2012).
Motions for reconsideration are, as a general matter, granted only in
rare circumstances. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d
1185, 1191 (7th Cir. 1990) (quoting Above the Belt, Inc. v. Mel Bohannan
Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). They are appropriate in very
few contexts, such as where the Court has “patently misunderstood a
party,” “has made a decision outside the adversarial issues presented to the
Court,” “has made an error not of reasoning but of apprehension,” or where
there has been a “controlling or significant change in the law or facts since
the submission of the issue to the Court.” Id. (quoting Above the Belt, 99
F.R.D. at 101). Such motions may also serve to correct “manifest errors of
law or fact.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th
Cir.), opinion amended on denial of reh’g sub nom. Rosenthal & Co. v. Rothwell
Cotton Co., 835 F.2d 710 (7th Cir. 1987) (quoting Keene Corp. v. Int’l Fidelity
Ins. Co., 561 F. Supp. 656, 665–66 (N.D. Ill. 1982), aff’d, 736 F.2d 388 (7th Cir.
1984)). “Reconsideration is not an appropriate forum for rehashing
previously rejected arguments or arguing matters that could have been
heard during the pendency of the previous motion.” Caisse Nationale de
Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (citing In
Re Oil Spill, 794 F. Supp. 261, 267 (N.D. Ill. 1992), aff’d, 4 F.3d 997 (7th Cir.
1993), and Bally Export Corp. v. Balicar Ltd., 804 F.2d 398, 404 (7th Cir. 1986)).
3.
ANALYSIS
Defendant alleges that the Court erred in two respects in its order
granting in part and denying in part Defendant’s motion for summary
judgment: first, that the Court “conflat[ed] . . . stormwater velocity and
stormwater volume” in applying the test set forth by Nollan v. California
Page 2 of 12
Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S.
374 (1994), “result[ing] in the improper denial of summary judgment” on
Plaintiffs’ takings claim, ECF No. 55 at 2; and second, that the Court
erroneously concluded that the issue of “rough proportionality” could be
put before a jury. Id. The Court discusses each contention in turn.
3.1
Alleged Reliance on Irrelevant Evidence
Defendant first contends that the Court improperly considered
“irrelevant expert opinions from Plaintiffs’ expert on the subject of
stormwater volume,” “conflat[ing] . . . stormwater velocity and stormwater
volume,” when it applied the Nollan/Dolan test. ECF No. 55 at 2.
The Court disagrees. Defendant has not demonstrated that the Court
conflated the concept of stormwater volume with that of stormwater
velocity and erroneously denied summary judgment for Defendant on
Plaintiffs’ takings claim.1 Rather, the Court appropriately concluded that
there was conflicting evidence in the record as to whether the condition
imposed—for Plaintiffs to alleviate stormwater drainage concerns on the
Violet Road Sites as a general matter and, specifically, to reduce the
drainage velocity to pre-2006 pipe-installation levels to alleviate
downstream flooding and erosion—was roughly proportional2 to the
The word “volume” never even appears in the Court’s analysis, nor in any
portion of the experts’ testimony on which the Court relied.
1
For what it’s worth, while the Supreme Court in Dolan attempted to clarify
the unconstitutional conditions analysis by introducing the “rough
proportionality” standard, it did very little to elaborate on what that standard
looks like. E.g., 512 U.S. at 392; Christopher J. St. Jeanos, Note, Dolan v. Tigard and
the Rough Proportionality Test: Roughly Speaking, Why Isn’t a Nexus Enough?, 63
Fordham L. Rev. 1883, 1887 (1995) (noting that the Dolan Court “failed to clarify
the specific requirements of the ‘rough proportionality’ test”); id. at 1888 (“While
Dolan offers some guidance in addressing these issues, it does not articulate
precisely what level of scrutiny is required by ‘rough proportionality.’”). “Dolan’s
2
Page 3 of 12
stormwater drainage-related issues that Plaintiffs’ development of the
Violet Road Sites actually caused and was anticipated to cause upon further
development. ECF No. 53 at 36–38. Defendant has not demonstrated that
that conclusion constituted manifest error such that reconsideration would
be appropriate.
In construing the condition to permit approval imposed by
Defendant on Plaintiffs, the Court did so relatively broadly:
Plaintiffs characterize the condition as “forc[ing] Basso
Builders to pay for an engineer to design a stormwater control
system, and to install improvements,” ECF No. 46 at 14, and
Defendant characterizes it more narrowly as “returning the
[Violet Road Sites’] stormwater velocities to their pre-2006
pipe installation condition.” ECF No. 44 at 9. The correct
answer is both; permit approval was conditioned on Plaintiffs
hiring an engineer to develop a method or methods, which
Plaintiffs would then have to implement/install, to alleviate
stormwater drainage concerns on the Violet Road Sites—
specifically, to reduce the drainage velocity to pre-2006-pipeinstallation levels to alleviate downstream flooding and
erosion.
ECF No. 53 at 33. Despite quoting this excerpt in its motion, ECF No. 55 at
5, Defendant’s motion nevertheless evidences that it continues to view the
issues somewhat more narrowly than does the Court. The condition was
not to reduce stormwater velocity flow rates through the Violet Road Sites
merely as an end in itself. It was not to construct stormwater drainage
standard of rough proportionality represents a necessary step toward a
meaningful Takings Clause by requiring more rigorous and particularized costbenefit analysis than was previously required . . . ; however, the ambiguities in the
majority opinion leave almost all land use planning decisions open to attack under
the Takings Clause.” Allison B. Waters, Constitutional Law—Takings—City Planners
Must Bear the Burden of Rough Proportionality in Exactions and Land Use Regulation,
Dolan v. City of Tigard, 114 S. Ct. 2309 (1994), 37 S. Tex. L. Rev. 267, 273 (1996)
(hereinafter “City Planners Must Bear the Burden”).
Page 4 of 12
mechanisms simply for the sake of doing so. Nor was it limited solely to
addressing the stormwater velocity through the pipe; to obtain permit
approval for the Violet Road Sites, Plaintiffs had to undertake various
stormwater-related improvements. ECF No. 53 at 33 (“Plaintiffs
characterize the condition as ‘forc[ing] Basso Builders to pay for an engineer
to design a stormwater control system, and to install improvements,’ . . .
and Defendant characterizes it more narrowly as ‘returning the [Violet
Road Sites’] stormwater velocities to their pre-2006 pipe installation
condition.’ . . . The correct answer is both . . . .”) (emphasis added); id. at 8–10
(noting that Hemmerich conditioned permit approval for the Violet Road
Sites on Plaintiffs “hir[ing] a professional engineer to design a stormwater
management system”); ECF No. 39-2 at 1 (engineer David Hemmerich
deposition) (defining “stormwater management system” as “includ[ing]
the pipe, . . . the site, the existing drainage, what remained of the channel”
and noting that “[a]ll those things included is [sic] kind of the stormwater
management system . . . , so it’s . . . really the collection of all the drainage
features on the [Violet Road Sites]”); ECF No. 21-12 at 1 (Cardinal
deposition) (noting that there was also “runoff . . . happening from [the
Violet Road Sites] that is also contributing to the overall runoff basin that’s
not being collected in the pipe. It’s going over the top of the ground.”); id.
(Cardinal deposition) (“I understand the Town was wanting . . . to decrease
the water as it left the Violet Road [Sites],” not merely the water flowing
through the pipe).
The point was to “alleviate downstream flooding and erosion” and
to “alleviate stormwater drainage concerns on the Violet Road Sites.” ECF
No. 53 at 33. Defendant seems to contemplate the issue of stormwater
velocity reduction in a vacuum, isolated to the context of the pipe and
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untethered from the externalities that are really at issue—downstream
flooding and erosion. But the Court does not view the issue through such a
restrictive lens.
The question left unanswered was whether what Defendant
mandated Plaintiffs do to gain permit approval was “related both in nature
and extent to the impact” of the development of the Violet Road Sites, ECF
No. 53 at 34–35 (quoting Dolan, 512 U.S. at 391), and whether it “require[d]
[Plaintiffs] to give up more than [wa]s necessary to mitigate harms resulting
from” their development, Sheetz v. County of El Dorado, 601 U.S. 267, 276
(2024). The Court maintains that Defendant’s motion for summary
judgment did not demonstrate as a matter of law that the condition
imposed was appropriately “related both in nature and extent,” ECF No. 53
at 34–35 (quoting Dolan, 512 U.S. at 391), to the erosion and flooding-related
concerns posed by the Violet Road Sites development, nor that the
condition did not “require [Plaintiffs] to give up more than [wa]s necessary
to mitigate [erosion and flooding-related] harms resulting from” that
development, Sheetz, 601 U.S. at 276.
Ryan Cardinal of Cardinal Engineering (“Cardinal”) testified that
the increase in velocity of stormwater flowing from the drainage basin
through the Violet Road Sites by way of the pipe did not cause the flow “to
become [of] such a velocity that causes erosion and flooding.” ECF No. 36
at 20. He testified that the stormwater drainage flow was “of the condition
already”—that irrespective of whether Plaintiffs had installed the pipe in
2006, and irrespective of whether they developed the Violet Road Sites
further, stormwater was already flowing, and would continue to flow,
through the Violet Road Sites at a velocity that would cause erosion and
flooding downstream. Id.; see also ECF No. 21-12 at 2 (Cardinal deposition)
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(Q: “Do you maintain . . . as an engineer that there are no concerns
regarding flowage coming off of the Violet Road [Sites]?” A: “My opinion
is it was an existing condition.”). Similarly, engineer David Hemmerich
(“Hemmerich”) acknowledged at his deposition that he had concluded in a
2017 study—after the installation of the pipe in 2006, but before Plaintiffs
returned to develop the Violet Road Sites further—that “nothing had to be
done with respect to improving the [Violet Road Sites] in order to
effectively manage better stormwater runoff . . . .” ECF No. 39-1 at 23; cf.
Mira Mar Dev. Corp. v. City of Coppell, 421 S.W.3d 74, 96 (Tex. Ct. App. 2013)
(reversing summary judgment for defendant municipality on takings claim
because the defendant “presented no evidence that the removal of trees
from appellant’s private property would increase the need for trees on
public property or for the other programs beyond what already existed before
appellant removed the trees on its property”) (emphasis added).
Cardinal also testified, as relevant, that the stormwater velocity
reduction mandated by Defendant as a condition to permit approval was
“not normally required on a project like” the Violet Road Sites’
development and would usually only be required “[o]n larger
developments.” ECF No. 21-11 at 11–12 (Q: “Would anything performing
the function of a trap weir have been appropriate on these properties . . . in
any way?” A: “Not normally.” Q: “Okay. And why was that?” A: “Because
of the size of the projects being less than an acre.”). In light of the foregoing,
the Court concluded that a factfinder could “reasonably question whether
the condition imposed” for permit approval for the Violet Road Sites “was
truly ‘proportional to the development’s anticipated impacts.’” ECF No. 53
at 37 (quoting City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 703 (1999)).
Page 7 of 12
The Court also readily acknowledged, however, that Hemmerich
disagreed with Cardinal on the point of whether the pipe that Plaintiffs had
previously installed on the Violet Road Sites increased drainage velocity
such that downstream erosion would be exacerbated. Id. at 37–38. In
contrast to Cardinal’s testimony, Hemmerich instead asserted that
downstream “erosion increased due to the increased velocity of the pipe.”
ECF No. 39-2 at 323; ECF No. 39-1 at 32 (Hemmerich deposition) (“[A]ny
time you introduce a pipe into a system like that, it’s going to move the
water faster, which then increases the chances of erosion and other
problems downstream.”). After recounting Hemmerich’s and Cardinal’s
differing testimony on these issues, the Court noted that “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” ECF No.
53 at 38 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
The Court also noted that, in determining whether the rough
proportionality element was satisfied, a factfinder could consider
Defendant’s long-standing failure to address stormwater drainage issues in
the Town generally. ECF No. 53 at 37 (“The fact[] that . . . the Town has been
plagued for years with stormwater drainage issues and has apparently
failed to, at its own cost, implement Town-wide measures to alleviate those
issues” is “relevant background context for” determining whether the
condition imposed was truly “proportional to the development’s
anticipated impacts” (quoting Del Monte Dunes, 562 U.S. at 703)). Defendant
Confusingly, and notwithstanding the fact that both Cardinal and
Hemmerich explicitly reference the issue of stormwater velocity in their abovequoted testimony, Defendant argues that this dispute “identified by the Court . . .
is not a dispute of the facts relating to stormwater velocity.” ECF No. 55 at 11.
3
Page 8 of 12
argues that this background context is both irrelevant and immaterial and
“do[es] not create a dispute of material fact so as to preclude summary
judgment.” ECF No. 57 at 3. The Court disagrees that it is irrelevant, and
the Court never concluded that it was material such that it could, standing
alone, preclude summary judgment in the first place. The Court stated only
that it was “relevant background context.” ECF No. 53 at 37.
“The standard for relevance is low.” United States v. Driggers, 913
F.3d 655, 658 (7th Cir. 2019) (citing Tennard v. Dretke, 542 U.S. 274, 284–85
(2004)). The law of unconstitutional conditions asks whether the property
owner is truly being made to internalize the externalities for which the
property owner himself is responsible; it is, in that sense, a matter of
“fairness and justice.” Armstrong v. United States, 364 U.S. 40, 49 (1960). The
contextualizing facts regarding the drainage and erosion related issues that
pre-dated development on the Violet Road Sites are relevant to that
question. A factfinder’s consideration of the Town’s long-standing failure
to address stormwater drainage issues, in conjunction with Cardinal’s
testimony, could lead the factfinder to conclude that, rather than “forcing
[Plaintiffs] to internalize the costs (the ‘negative externalities’) that [their]
development” posed, Defendant was instead “leverag[ing] its monopoly
permit power” and using the opportunity as a means of addressing a larger,
community-level problem that it had historically ignored. Knight v. Metro.
Gov’t of Nashville & Davidson Cnty., 67 F.4th 816, 824–25 (6th Cir. 2023) (citing
Koontz v. St. Johns River Mgmt. Dist., 570 U.S. 595, 604–05 (2013) and Cedar
Point Nursery v. Hassid, 141 S. Ct. 2063, 2079 (2021)).
Defendant
argues
that
the
Court
essentially
applied
the
“substantially advances” formula that the Supreme Court rejected in Lingle
v. Chevron U.S.A., Incorporated, 544 U.S. 528 (2005). ECF No. 55 at 3. Again,
Page 9 of 12
the Court disagrees. In Lingle, the Supreme Court noted that “[t]he
‘substantially advances’ formula suggests a means-end test: It asks, in
essence, whether a regulation of private property is effective in achieving
some legitimate public purpose.” 544 U.S. at 542. “The ‘substantially
advances’ inquiry probes the regulation’s underlying validity. But such an
inquiry is logically prior to and distinct from the question whether a
regulation effects a taking, for the Takings Clause presupposes that the
government has acted in pursuit of a valid public purpose.” Id. at 543. The
Supreme Court further concluded that the “substantially advances”
formula was untenable in the takings context because “it would require
courts to scrutinize the efficacy of a vast array of state and federal
regulations—a task for which courts are not well suited.” Id. at 544.
In its order denying in part Defendant’s motion for summary
judgment, the Court did not apply the “substantially advances” formula—
in name or in essence. It did not ask whether the condition imposed by
Defendant “substantially advance[d] a legitimate government interest.”
Lingle, 544 U.S. at 548. The Court relied instead upon the rule established in
Nollan and Dolan, which is “entirely distinct from the ‘substantially
advances’ test,” id. at 547, but which nevertheless “imparts a relatively
heightened level of scrutiny for land use regulations,” Waters, City Planners
Must Bear the Burden at 285. See ECF No. 53 at 29–30. In applying that rule,
the Court acknowledged that rough proportionality does not require a
“precise mathematical calculation.” ECF No. 53 at 34 (quoting Dolan, 512
U.S. at 391). Nevertheless, and in the face of conflicting testimony and a
somewhat troubling set of background contextualizing facts, the Court was
wary of imprudently rendering a determination as a matter of law. The
Court remains unconvinced that it manifestly erred in that respect.
Page 10 of 12
3.2
Whether the Issue of “Rough Proportionality” May be Put
Before a Jury
Defendant next argues that the Court erred in suggesting that
“whether a condition is ‘roughly proportional’” could be determined by a
jury. ECF No. 55 at 3–4. The Court again disagrees. While courts have not
addressed this question uniformly across the board, and while the Seventh
Circuit has not addressed the matter, various courts have concluded that
the rough proportionality inquiry may present a mixed question of law and
fact which may properly be put before a jury. E.g., Tap House Real Est., LLC
v. City of Rochester, No. 22-CV-492 (ECT/DTS), 2024 U.S. Dist. LEXIS 127318,
at *30–31 (D. Minn. July 19, 2024) (citing Heritage at Pompano Hous. Partners
v. City of Pompano Beach, No. 20-61530-CIV-SMITH/VALLE, 2021 U.S. Dist.
LEXIS 239647, at *25–26 (S.D. Fla. Dec. 15, 2021) (“[I]t is an issue for the jury
to decide whether . . . there is a rough proportionality between the public
costs of the Project and the Improvements.”); Skoro v. City of Portland, 544 F.
Supp. 2d 1128, 1131 n.1 (D. Or. 2008); and City of Perris v. Stamper, 376 P.3d
1221, 1231 (Cal. 2016)); see also Del Monte Dunes at Monterey, Ltd. v. City of
Monterey, 95 F.3d 1422, 1428 (9th Cir. 1996) (concluding that inverse
condemnation claim presented a “mixed question[] of law and fact, which
may be submitted to the jury if . . . essentially factual, even if [it] implicate[s]
constitutional rights” (collecting cases), aff’d, Del Monte Dunes, 526 U.S. 687
(1999)); cf. Sadowsky v. New York, 732 F.2d 312, 317 (2d Cir. 1984) (“The
evaluation of whether a taking has occurred is essentially a factual
inquiry . . . .” (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104,
124 (1978))).
Page 11 of 12
4.
CONCLUSION
Defendant has not demonstrated that the Court committed manifest
error in denying in part Defendant’s motion for summary judgment.
Accordingly, Defendant’s motion for reconsideration must be denied.
Accordingly,
IT IS ORDERED that Defendant Town of Geneva’s motion for
reconsideration, ECF No. 55, be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 25th day of October, 2024.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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