Atkins v. City of Glendale

• Decision Date: 04 March 1975
• Docket Number: No. 470,470
• Citation: 226 N.W.2d 190,67 Wis.2d 43
• Court: Wisconsin Supreme Court
• Parties: Julius R. ATKINS et al., d/b/a Atkins & Wahlberg, Respondents, v. CITY OF GLENDALE, a Municipal Corporation, Appellant.

Page 190

226 N.W.2d 190

67 Wis.2d 43

Julius R. ATKINS et al., d/b/a Atkins & Wahlberg, Respondents, v. CITY OF GLENDALE, a Municipal Corporation, Appellant.

No. 470.

Supreme Court of Wisconsin.

March 4, 1975.

Rehearing Denied May 6, 1975.

George D. Prentice, Glendale City Atty., Milwaukee, for appellant.

Wickert & Fuhrman by Charles Saggio, Milwaukee, for respondents.

The judgment appealed from is for the plaintiffs and was entered following an order granting a motion for summary judgment.

The action seeks reimbursement for the excess of the amount paid as a special assessment over the actual costs of the installation of water mains and appurtenances pursuant to sec. 66.60, Stats.

Plaintiff-respondents Julius R. Atkins and Nathan Wahlberg, d/b/a Atkins & Wahlberg, owners of a parcel of real estate in the City of Glendale, applied to the appellant-city for approval of a subdivision plat to be named Wayside Estates. Subsequent to that application, on November 18, 1969, the plaintiffs-respondents entered into a written 'Agreement' with appellant-defendant, City of Glendale, which provided, in part, as follows:

'WHEREAS, the City, as a condition to approving the final plat of said proposed subdivision, pursuant to the authority of Section 236.13, Wis.Stats., has determined to require that the Owners make and install the following improvements in said subdivision:

'Item 1. Public sanitary sewers; sanitary sewer laterals from public sanitary sewers to the lot line; grading and graveling; installation of drainage facilities and the construction of permanent pavement in the public roads shown in said proposed plat; installation of water laterals from public water mains to the lot line; and

'Item 2. Installation of public water mains and appurtenances; and

'WHEREAS, Owners desire to have installed by contracts let by them the public improvements set forth in Item 1 above, and to have the City install, by public contract, the improvement set forth in Item 2 above; the City to levy a special assessment against all the lots in said subdivision for the said public improvement described in said Item 2;

'NOW, THEREFORE, THIS AGREEMENT WITNESSETH:

'. . .

'2. Said Owners and City agree that the public water mains and appurtenances set forth at Item No. 2 herein shall be installed by the City through a public contract, and that the City shall levy against all the lots in said subdivision, to defray the costs thereof, a special assessment at the rate of Nine Dollars ($9.00) per front foot. Owners agree to pay the total amount of said special assessment so levied for such water mains and appurtenances on or before February 28, 1971, together with interest from the date of the levying of said special assessment until the same is paid, at the rate of interest set by City ordinance;

'3. Owners further agree that at the time the Common Counsel adopts a resolution authorizing the solicitation of bids for the installation of said water mains and appurtenances by public contract, they will execute and deliver to the City waivers of assessment notices and hearings in the form attached hereto as Exhibit B.'

On November 20, 1969, the respondents executed a waiver of all special assessment notices and hearings, as permitted by sec. 66.60(18), Stats., and consented to the levying of the special assessment.

On June 9, 1970, the common council of the City of Glendale passed a preliminary resolution providing in part:

'BE IT RESOLVED by the Common Council of the City of Glendale:

'1. That in the judgment of said Common Council it is expedient and necessary, for the best interests of said City and the property affected thereby, that the following named improvements be made in that portion of the following named streets:

'The installation of water mains and appurtenances in Wayside Estates Subdivision and in those streets immediately adjacent and abutting North Redwood Drive between W. Juniper Lane and a point approximately 250 feet north of W. Juniper Lane.

'2. Therefore, the Common Council declares its intention to exercise its powers to levy special assessments under Section 66.60, Wisconsin Statutes, which will not exceed the cost of the work for the above-named purposes on the above-named streets; the limits of the proposed assessment district are as follows:

'All the lots, parcels and tracts of land within Wayside Estates Subdivision and those immediately adjacent and abutting North Redwood Drive between W. Juniper Lane and a point approximately 250 feet north of W. Juniper Lane.

'3. The Common Council further declares that the assessments shall be paid in cash or in deferred payments to be designated at the hearing on assessments.'

The resolution also directed the city engineer to prepare plans and specifications for the project and directed the city clerk to give notice of a public hearing on the matter to be held on July 7, 1970.

At the July 7 meeting, the common council approved the plan in a final resolution which provided in pertinent part:

'BE IT FURTHER RESOLVED, that the improvement of the aforesaid streets in the manners set forth in the caption hereof be carried out in accordance with the report as finally approved and that payment be made as therein provided by assessing the cost of said improvement to the abutting property; that the costs thereof shall be paid as follows:

'1. For all the lots, parcels and tracts of land located in Wayside Estates Subdivision, in cash on or before February 28, 1971.'

At the July 7 meeting, the city engineer reported receiving bids on the construction project ranging from $40,038.80 to $65,980.80. The common council did not immediately accept the low bid but adjourned pending an investigation of the low bidder's competence and qualifications.

The final resolution of July 7 was published in the official city newspaper on July 23, 1970, and copies were mailed to the plaintiffs-respondents on July 24.

The bid of $40,038.80 was subsequently accepted, but the record does not reveal when. The city's affidavit indicates that plaintiffs-respondents were aware of the amount of the low bid but it does not state they were aware of its acceptance. Nor does the record before us reveal when the work was commenced or completed.

By stipulation, the parties agree that plaintiffs-respondents, by virtue of the $9 per frontage foot assessment, paid to the city $58,316.70, including interest, whereas the actual cost of the construction project as paid by the city, including incidental expenses, was $42,117.17. The plaintiffs-respondents paid the assessment in two equal installments on January 30, 1971 and July 30, 1971.

On April 28, 1972, plaintiffs-respondents filed a claim with the city for a refund of the difference between the total assessment and the actual cost of the improvement, with interest. The claim was denied.

The plaintiffs-respondents commenced the instant action by summons and complaint, served on appellant-city on November 22, 1972, alleging essentially the above stated facts (although the dollar amounts were slightly different because the stipulation had not yet been made), and asserting a right to reimbursement of the overpayment independent of any right to appeal under sec. 66.60(12), Stats., alleging they had not been apprised of acceptance of the bid until after the time for appeal had elapsed.

The city demurred to the complaint on the grounds that it did not state a cause of action and that it was in fact an appeal from a special assessment not commenced within the time limited by law. The trial court overruled the demurrer.

Plaintiffs-respondents then filed a motion for summary judgment with supporting affidavits. Appellant-city filed an affidavit in opposition thereto and in support of its own motion for summary judgment. The trial court granted the plaintiffs-respondents' motion and ordered that they recover stipulated damages of $15,637.96, plus costs and disbursements. The defendant-city appeals.

BEILFUSS, Justice.

The issues before the court are:

1. May the city, by way of special assessment, require the property owners to pay not only the costs of the installation of new water mains and appurtenances, but also of pre-existing water supply facilities previously paid for by the city?

2. Is this action in reality an appeal under the provisions of sec. 66.60, Stats., and therefore barred for failure of timely commencement pursuant to sub. (12)(a) and (e) and of timely payment pursuant to sub. (12)(f)?

The appellant-city contends that the $9 per frontage foot assessment was intended not only to defray the cost of installation of the new water mains and appurtenances, but also to cover a portion of the cost of water transmission mains, appurtenances and other water supply facilities previously constructed and paid for by the city located outside of plaintiffs-respondents' land, but necessary to furnish water to the mains located in their land.

As authority for the proposition that an assessing authority may assess to pay for previously constructed and paid for improvements, the city relies on three cases: Jordan v. Menomonee Falls (1965), 28 Wis.2d 608, 137 N.W.2d 442; Zastrow v. Brown Deer (1960), 9 Wis.2d 100, 100 N.W.2d 359; and Milwaukee v. Taylor (1938), 229 Wis. 328, 282 N.W. 448.

In Jordan, this court considered the validity of a village ordinance requiring as a prerequisite to platting that the subdivider, '. . . in order that the cost of providing the public school, park, and recreation sites and facilities necessary to serve the additional families brought into the community by subdivision development may be most equitably apportioned . . ..' dedicate an amount of land of a total value equal to $200 per residential lot created by the subdivision or cash in lieu thereof. This court upheld the ordinance as a valid exercise of authority pursuant to sec. 236.45, Stats.

The city contends that if a municipality may lawfully require a subdivider to...