CED Properties, LLC v. City of Oshkosh
CED Properties, LLC v. City of Oshkosh
Opinion of the Court
*409¶ 1 CED Properties, LLC (CED) challenges the special assessment imposed by the City of Oshkosh (City)
¶ 2 We hold that "special benefits" has the same meaning under both statutes. Although the failure to raise the issue of special benefits in an eminent domain action does not necessarily preclude a municipality from later doing so in a special assessment action, a municipality's admission that special benefits are non-existent in the context of an eminent domain proceeding constitutes relevant evidence in a later challenge to the special assessment.
*410¶ 3 We further hold the court of appeals erred in concluding CED failed to overcome the presumption of correctness afforded the City's special assessment and to establish sufficient genuine issues of material fact. The affidavit of CED's expert raises material factual issues in dispute, including whether the roundabout project conferred a local rather than a general benefit, whether the project conferred any special benefits on CED's property or actually diminished its value, and whether the amount of the special assessment was fair and equitably apportioned among the commercial properties involved as well as proportionate to the benefits accruing to the property. Because we conclude CED overcame any presumption of correctness by presenting competent evidence to the contrary, we reverse the decision of the court of appeals and remand to the circuit court for a trial.
I. BACKGROUND
¶ 4 CED owns property located on the northeast corner of the intersection of United States Highway 45 and State Highway 76. Locally, United States Highway 45 is called Murdock Avenue and State Highway 76 is called Jackson Street. A Taco Bell franchise has operated on the property since 1992.
¶ 5 In January 2008, the City and the Wisconsin Department of Transportation entered into an improvement plan agreement to reconstruct and install a multi-lane roundabout at the Jackson-Murdock intersection. The reconstruction plan proposed the removal of traffic signals, concrete and asphalt paving, concrete driveway approaches, sidewalk replacement and repair, sanitary and storm sewer laterals, and the improvement of streetscaping and landscaping. The plan required the City to take about six percent of CED's *411property to ensure enough space to build the roundabout. The City used its power of eminent domain under Wis. Stat. ch. 32 to do so. In April 2012, after lengthy litigation, the City and CED agreed the City would pay CED $180,000 just compensation for the taking. During that litigation, the City filed with the circuit court the appraisal of its expert, Patrick Wagner. According to Wagner's report, the City's partial taking caused CED's property to decrease in value by $38,850, and he testified during his deposition that the taking did not confer *142any "special benefits" on CED's property under
¶ 6 In July 2010, the City passed a resolution that levied special assessments upon CED's property and other commercial properties pursuant to its police power under
¶ 7 Following this court's decision in CED I, the City re-assessed CED pursuant to
¶ 8 The City's report further explained that the project improved the intersection's primary function of moving and carrying traffic (a "community benefit") as well as the secondary benefit of providing access to traffic flow (a "special benefit" to abutting property owners, like CED). According to the City, this intersection served about 25,000 vehicles each day, with 1,973 (or about 7.9 percent) of those vehicles tied to stops at the Taco Bell on CED's property. The City's analysis indicated that before the roundabout, it took a vehicle 37.9 seconds to travel through the intersection; this was reduced to 10.5 seconds per vehicle after the project.
¶ 9 CED again appealed the special assessment to the circuit court, claiming the project conferred only community or general benefits of better traffic flow and no local or special benefits at all. CED further claimed the assessment was unreasonable because it had no nexus between the linear feet upon which the property was assessed and the alleged benefits conferred.
¶ 10 The City moved for summary judgment. It acknowledged the improvement conferred public benefits, *414but asserted that the improvement also conferred special benefits assessable against CED, that the resulting assessment was reasonable, and that CED failed to overcome the presumption of correctness afforded the City's assessment.
¶ 11 CED opposed the motion, arguing that because the City conceded "special benefits" did not accrue to CED's property during the Wis. Stat. ch. 32 eminent domain action, the City forfeited the opportunity to assert "special benefits" during the later special assessment appeal. Alternatively, CED argued that even if asserting special benefits during the eminent domain action was not a condition precedent to asserting them during the ch. 66 special assessment action, the improvements were not local in nature, no special benefits accrued, and the assessments' costs were unreasonably apportioned among the abutting property owners. CED also argued that the special assessment violated the equal protection clause of the Wisconsin and United States Constitutions.
¶ 12 In support of its arguments, CED submitted the affidavit and appraisal of its expert witness, James C. Johnson. According to his affidavit, Johnson is a certified general appraiser who was previously employed by the Wisconsin Department of Transportation as an "access specialist." During his time with that department, he "served on the committee that established the 'Special Benefits Criteria' which were implemented and used by the [department] for assessing whether benefits were general benefits or special benefits." He cites to cases on which he acted as an "access expert ... on the issue of reasonable access." He served as the Department's "litigation coordinator,"
*415training the Department's consultant appraisers "on evaluating general vs. special benefits." "[A]ll requests for changes in the amount of compensation due to landowners in the southwest region were reviewed by [Johnson] ... includ[ing] consideration of any access issues, general benefits, and special benefits."
¶ 13 Having personally inspected CED's property, Johnson believed that "absolutely no benefit to [CED's property], let alone a special benefit", arose from any of the improvements. In fact, Johnson opined that the roundabout was a detriment to *144CED's property, explaining: "Retail fast food sites like the subject are more valuable when they are on controlled intersections" since "[g]reater time at the intersection is desirable for the subject because the subject is an impulse stop." According to Johnson's appraisal, as of October 29, 2009, the roundabout project caused the fair market value of CED's property to decrease $251,370.
¶ 14 CED also submitted an affidavit from its attorney, attaching, as material here, Wagner's appraisal and the page from Wagner's deposition where he said no special benefit accrued to CED's property in the eminent domain action. CED asserted in its brief opposing summary judgment that Wagner's appraisal and testimony precluded the City from later specially assessing CED for "special benefits."
¶ 15 The circuit court granted the City's motion for summary judgment. It did not address whether genuine issues of fact remained regarding the existence of a special benefit, whether the benefit was local or general, or whether the assessment was reasonable.
¶ 16 CED appealed and the court of appeals affirmed, with Judge Mark Gundrum dissenting.
*416CED Properties, LLC v. City of Oshkosh, No. 2016AP474, unpublished slip op.,
II. STANDARD OF REVIEW
¶ 17 This case requires us to review a grant of summary judgment against CED. "We independently review a grant of summary judgment using the same methodology of the circuit court and the court of appeals." Water Well Sols. Serv. Grp., Inc. v. Consol. Ins. Co.,
¶ 18 We apply a two-step test to make this determination. Garza v. Am. Transmission Co. LLC,
¶ 19 "Summary judgment is a drastic remedy; therefore, the moving party must clearly be entitled to judgment as a matter of law." Genrich v. City of Rice Lake,
¶ 20 This case also involves the interpretation and interplay of two statutes,
III. ANALYSIS
¶ 21 CED and the City disagree on whether the term "special benefits" has the same meaning in both Wis. Stat. ch. 32 and ch. 66. CED argues that if it has the same meaning, then the City cannot take the position that no special benefits exist in a ch. 32 action but later assert special benefits exist in a ch. 66 action. We hold the term "special benefits" has the same meaning in both statutes, but that it is used differently in each context. Accordingly, the City is not barred from imposing a special assessment on CED's property to pay for improvements, provided the City establishes the improvements were local, conferred special benefits on CED's property, and were fair, equitable, and in proportion to the benefits accruing to the property. These issues involve questions of fact for the trier of fact to resolve.
A. The Meaning and Application of "Special Benefits"
¶ 22 We begin with the language of the statutes. See State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
¶ 23 Wisconsin Stat. §§ 32.09 and 66.0703(1)(a) both use the term "special benefits." Wisconsin Stat. § 32.09 governs "all matters involving the determination of just compensation in eminent domain proceedings." Section 32.09(3) provides:
Special benefits accruing to the property and affecting its market value because of the planned public improvement shall be considered and used to offset the value of property taken or damages under [Wis. Stat. § 32.09 (6) ], but in no event shall such special benefits be allowed in excess of damages described under sub. (6).[10 ]
*146(Emphasis added.) Section 66.0703 governs the general rules applicable to special assessments imposed by a city, town or village. Section 66.0703(1)(a) provides:
Except as provided in s. 66.0721,[11 ] as a complete alternative to all other methods provided by law, any city, town or village may, by resolution of its governing body, levy and collect special assessments upon property in a limited and determinable area for special benefits conferred upon the property by any municipal *420work or improvement; and may provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of the special assessments.
(Emphasis added.)
¶ 24 Because neither statute defines the non-technical term "special benefits," we give the term its common, ordinary, and accepted meaning. Kalal,
¶ 25 "Special benefits" means "an uncommon advantage." Red Top Farms v. DOT,
*421Goodger v. City of Delavan,
¶ 26 In Goodger, the court of appeals addressed whether a special benefit was conferred for purposes of determining the validity of a special assessment.
¶ 27 The legislature uses the term "special benefits" in each statute differently. In
¶ 29 The statutory qualification in
¶ 30 Wisconsin Stat. § 66.0703(1)(a) does not condition special assessments on the conferral of special benefits affecting the market value of the property. The work or improvement must only provide an uncommon advantage specific to that property. See Genrich,
¶ 31 CED argues that the word "shall" in
Q. Okay. In your appraisal here, did you find any special benefits to the subject property?
A. No.
Q. Okay. Are there any special benefits to the property in this case?
A. I don't believe so.
This testimony does not resolve the issue of special benefits in the context of a special assessment because *425the record is unclear regarding whether the City's expert identified no special benefits that affected the property's market value or if he identified no special benefits whatsoever.
¶ 33 We conclude that "special benefits" has the same meaning in each statute, but the failure to raise the issue of special benefits in an eminent domain action does not necessarily preclude a municipality from levying and collecting "special benefits" via a subsequent special assessment. Notably, in an eminent domain action, only special benefits accruing to the property that affect its market value because of the planned improvement are required to be considered and used to offset the value of the property taken.
¶ 34 CED decries the inefficiency and burden of forcing property owners to "endure" two proceedings; however, the remedy lies not with the judiciary but with the legislature, which produced the ostensible problem. Perhaps, as CED contends, the legislature did not intend this result but this court does not divine the legislature's intentions; it interprets what the legislature actually enacted.
B. Prerequisites to Police Power Special Assessments
¶ 35 While the City's denial of special benefits in the eminent domain action *149does not foreclose its assertion of special benefits in a subsequent special assessment, *426the City must satisfy certain requirements in order for its assessment to be valid. In order for the City to exercise its police power
1. Local versus general improvements
¶ 36 Because special assessments can be levied only for local improvements, the character of the improvement must first be determined before the propriety of the assessment is considered. Genrich,
¶ 37 Because special assessments can be levied only "for local improvements ... the circuit court must examine whether the improvement was local, that is, whether the purpose was to accommodate particular property owners and confer a special benefit." Park Ave. Plaza v. City of Mequon,
2. Special benefits
¶ 38 If an improvement is local in character, the next consideration is whether the improvement conferred special benefits on the subject property. Section III.A comprehensively examines the meaning of "special benefits." Additionally, we note that "a benefit could accrue without any actual use of the improvement." Molbreak,
¶ 39 We also address CED's argument that this court incorrectly expanded "special benefits" to mean not only an improvement, but also to encompass a "service." Duncan,
¶ 40 Accepting CED's argument could require us to overrule Duncan, a step we need not analyze.
snow and ice removal, weed elimination, street sprinkling, oiling and tarring, repair of sidewalks or curb and gutter, garbage and refuse disposal, recycling, storm water management, including construction of storm water management facilities, tree care, removal and disposition of dead animals under s. 60.23 (20), *430loan repayment under s. 70.57 (4) (b), *151soil conservation work under s. 92.115, and snow removal under s. 86.105.
Construction of a roundabout is not mentioned in the statutory definition of services and nothing in the list of services is analogous to a roundabout. While use of the word "includes" indicates that what follows are examples rather than an exhaustive list,
3. Reasonableness
¶ 41 The third prerequisite to the exercise of the police power to levy a special assessment requires a reasonable basis for the assessment. An assessment made under the police power is not limited to the value of the benefits conferred on the property but must be made on a reasonable basis. Steinbach v. Green Lake Sanitary Dist.,
¶42 Multiple methods may be used to achieve uniformity. Id., ¶ 21. The City's selected method must be fair and equitable and produce an assessment in proportion to the benefits accruing to the property. Berkvam v. City of Glendale,
C. Genuine Issues of Material Fact Exist Regarding the Validity of the Special Assessment Levied on CED's Property.
¶43 Having set forth the law governing the validity of assessments, we now apply it to the City's assessment of CED's property. CED argues the court of appeals erred in affirming the circuit court's grant of summary judgment because CED presented sufficient evidence demonstrating disputed issues of material fact. The City responds that CED failed to overcome the presumption of correctness and therefore summary judgment was proper. In the case of a special assessment appeal, "where the assessing body did consider what property would be benefited by the improvement and assessed according to the amount of the benefit ... in the absence of evidence to the contrary there is a conclusive presumption that the assessment was on the basis of benefits actually accrued." Molbreak,
the burden is on the objector to show either that:
(1) The statutory procedure was not followed, or *433(2) that the assessment was not based on benefits, or
(3) that the assessing authority did not view the premises to make such a determination, or (4) for the objector to produce competent evidence that the assessment is in error.
¶44 CED contends the affidavit of its expert witness, James C. Johnson, raises genuine issues of material fact regarding whether the improvement plan was general or local, whether the project conferred special benefits on CED's property, and whether the assessment was reasonable. The City dismisses the Johnson affidavit as insufficient to overcome the presumption of correctness and asserts this matter is controlled by Park Ave. Plaza,
¶45 With respect to the first issue, the City's Initial Resolution Declaring Intent to Reassess CED's property declares "[t]he purpose of the project is to reduce congestion at the intersection, increase traffic safety, renew utilities and enhance aesthetics." Generally, the City identifies the sidewalk replacement and *434repair, concrete paving, new and re-laid sewer laterals, concrete driveway approaches, and streetscape/landscape improvements as providing local and specific benefits to CED's property. The City also points to the improved traffic flow, a substantial increase *153in accessibility, and reduced congestion as local and specific benefits.
¶46 In response, CED generally argues the roundabout was constructed not to benefit nearby businesses, but for the primary purpose of benefiting the traveling public. Specifically, CED proffers Johnson's affidavit as evidence contradicting the City's assertion of local benefits. In his affidavit, Johnson denies the purpose of the roundabout was local, points to a decreased value of CED's property as a result of its construction, and opines that the project did not improve the convenience of CED's property or its customers, noting the safety issues created by the reconfiguration of the intersection. CED also points to evidence indicating that increased accessibility was not an effect of the reconstruction project, citing testimony in the affidavit of the City's Assistant Director of Public Works/City Engineer that "[t]he CED property has the exact same access after completion of the project as it did prior to the project. The driveway access is in the same location. The driveway access has the same configuration."
¶47 "[T]he inquiry into the nature of an improvement"-that is, whether a special benefit is local or general-"presents a question of fact." Genrich,
¶48 Whether a special benefit has been conferred is also a question of fact. First State Bank,
¶49 Here, Johnson's affidavit contains evidence contradicting the City's position; he insists the property received no special benefits whatsoever. Johnson's affidavit and appraisal assert that the placement of the roundabout actually impairs rather than benefits CED's property for a variety of reasons, including reduced congestion discouraging impulse stops at fast food restaurants, the removal of landscaping that obscured drive-thru traffic for diners inside, and the lack of direct access to the property for traffic coming from three directions, potentially causing unsafe lane changes to access it. Johnson opines that the roundabout's construction overall reduced the value of CED's property. The City disagrees with Johnson's assessment *436and points out that the roundabout improved traffic flow through the area, improved existing sidewalks and landscaping, and made the area safer. In his affidavit, Johnson refutes the notion that the landscaping on the central island of the roundabout increases the value of CED's property, noting that CED possesses no property rights in landscaping, which could be changed at any time. *154¶50 Johnson's affidavit "cuts to the heart of the matter and creates a genuine issue of material fact" rendering summary judgment inappropriate. Genrich,
¶51 Additionally, CED contends that the assessment imposed upon it was unreasonable because it was unfairly and inequitably apportioned among similarly situated property owners. CED's $40,103.03 assessment was twice as much as any other assessment. The City responds that it performed a "per lineal foot" assessment and justifies the higher assessment on CED's property because it sits on the corner. Accordingly, it has footage on both Murdock and Jackson Streets. While the reasonableness of the assessment presents a question of law, the analysis depends upon resolution of the first two issues. Because " '[r]easonableness' turns on the totality of the facts and circumstances"
*437this issue "is not easily disposed of on summary judgment." Preloznik v. City of Madison,
IV. CONCLUSION
¶52 The term "special benefits" means the same in both the eminent domain statute,
¶53 The circuit court improperly entered summary judgment in the City's favor in light of CED's *438submission of evidence challenging the validity of the special assessment, which showed a genuine dispute regarding whether the improvement plan was general or local and whether the project conferred special benefits on CED. Each of these issues must be decided by the trier of fact. If the factfinder on remand finds the improvement was local and conferred a special benefit on CED's property, the circuit court will then determine whether the assessment was reasonable as a matter of law. *155By the Court. -The decision of the court of appeals is reversed and the cause is remanded to the circuit court.
The City imposed the special assessment on other affected commercial property owners, but this case involves only CED's challenge to the special assessment.
Roundabout, American Heritage Dictionary of the English Language (5th ed. 2011) ("A traffic circle.").
The Honorable John A. Jorgensen, Winnebago County, presiding.
All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.
Wisconsin Stat. § 32.09(3) provides:
Special benefits accruing to the property and affecting its market value because of the planned improvement shall be considered and used to offset the value of property taken or damages under [Wis. Stat. § 32.09 (6) ], but in no event shall such special benefits be allowed in excess of damages described under sub. (6).
Wisconsin Stat. § 66.0703(1)(a) provides:
(a) Except as provided in s. 66.0721, as a complete alternative to all other methods provided by law, any city, town or village may, by resolution of its governing body, levy and collect special assessments upon property in a limited and determinable area for special benefits conferred upon the property by any municipal work or improvement; and may provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of the special assessments.
Paragraph (b) provides where "an assessment represents an exercise of the police power, the assessment shall be upon a reasonable basis as determined by the governing body of the city, town or village."
CED asserted in CED I that the improvement project had not conferred special benefits under
Wisconsin Stat. § 66.0703(10) provides:
If the actual cost of any project, upon completion or after the receipt of bids, is found to vary materially from the estimates, if any assessment is void or invalid, or if the governing body decides to reconsider and reopen any assessment, it may, after giving notice as provided in sub. (7)(a) and after a public hearing, amend, cancel or confirm the prior assessment. A notice of the resolution amending, canceling or confirming the prior assessment shall be given by the clerk as provided in sub. (8)(d). If the assessments are amended to provide for the refunding of special assessment B bonds under s. 66.0713(6), all direct and indirect costs reasonably attributable to the refunding of the bonds may be included in the cost of the public improvements being financed.
The entire project cost $4,060,000. The Wisconsin Department of Transportation paid $2,610,750. The City paid $1,449,250, but specially assessed the affected property owners $307,118.72 of that amount. The $40,103.03 charged to CED equaled 0.99 percent of the entire project cost.
CED does not make this argument before this court.
Wisconsin Stat. § 32.09(6) provides the method to determine the amount a property owner shall be compensated in the case of a partial taking of property.
Wisconsin Stat. § 66.0721, entitled "Special assessments on certain farmland or camps for construction of sewerage or water system," is not relevant to the analysis of this case.
"The presumption of consistent usage applies also when different sections of an act or code are at issue" and "the more connection the cited statute has with the statute under consideration, the more plausible the argument becomes." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Text 172-73 (2012).
This court expanded the scope of special benefits to include "imminent adaptability of the land to a higher and better use from an economic standpoint because of proximity to the public improvement." Hietpas v. State,
CED asserted at oral argument before this court that the City is judicially estopped from specially assessing CED for "special benefits" because it conceded no special benefits arose in the condemnation action. We disagree. Judicial estoppel "precludes a party from asserting a position in a legal proceeding and then subsequently asserting an inconsistent position." State v. Petty,
The City's position in each proceeding is not clearly inconsistent. "Special benefits" in condemnation actions are limited to immediate or imminent increases to a property's fair market value. The City is not specially assessing CED on the basis of an increase in the fair market value of CED's property. If the City successfully establishes the conferral of special benefits on CED's property, based on the asserted "substantial increase[s] in accessibility, which includes safer, lower cost, and shorter travel times for customers, deliveries and employees," then the City may levy and collect a special assessment upon CED's property, provided the other prerequisites-the improvement is local and the special assessment is reasonable-are met.
It is undisputed that the City exercised its police power in imposing the special assessments to fund the improvement project.
Because a roundabout is unquestionably an improvement and not a service, we defer a thorough analysis of Duncan Development Corp. v. Crestview Sanitary District,
Under
"The verb to include introduces examples, not an exhaustive list." Scalia & Garner, supra note 12, at 132; State v. James P.,
The reconstruction of the intersection included the replacement and repair of sidewalks: According to the report of the Public Works Director and City Manager, "[d]efective sidewalks section include those with open cracks, offset joints or other defects that create a hazard to those using the sidewalk. Removal of the hazards provides a safe corridor for pedestrians to access the site." "[R]epair of sidewalks" is specifically enumerated as a service for which the City may impose a special charge on real property under
Dissenting Opinion
¶54 The court of appeals got it right. The majority errs.
¶55 I write separately to make two points.
¶56 First, the court of appeals (correctly) made clear that although "'[s]pecial benefits' in the eminent domain context and the special assessment context [are] similar in definition, they are distinct and different considerations under distinct and different governmental actions."
¶57 Second, the majority stumbles by failing to acknowledge that CED has not overcome the presumption of correctness of the City's actions and has not established a genuine issue of material fact to overcome summary judgment.
*439¶58 I agree with Chief Judge Lisa Neubauer, who emphasized these points in her concurrence in the court of appeals: "[CED] has failed to show by 'strong ... clear and positive proof' that the $20,000 special assessments are not reasonable-given that it is undisputed that improvements to the sidewalks, curb and gutters, etc. have been made-and the reasonableness analysis requires only that CED's property be 'benefited to some extent' and that the amount of the assessment can exceed the value of the special benefits."
¶59 The City is entitled to summary judgment.
¶60 For these reasons, I dissent.
¶61 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissenting opinion.
CED Props., LLC v. City of Oshkosh, No. 2016AP474, unpublished slip op., ¶ 24,
CED Props., unpublished slip op., ¶ 29.
Reference
- Full Case Name
- CED PROPERTIES, LLC, Plaintiff-Appellant-Petitioner, v. CITY OF OSHKOSH, Defendant-Respondent.
- Cited By
- 22 cases
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- Published