Emjay Inv. Co. v. Vill. of Germantown
| Decision Date | 17 May 2011 |
| Docket Number | No. 2009AP1714.,2009AP1714. |
| Citation | 797 N.W.2d 844,2011 WI 31 |
| Parties | EMJAY INVESTMENT COMPANY, Plaintiff–Appellant–Petitioner,v.VILLAGE OF GERMANTOWN, Defendant–Respondent. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the plaintiff-appellant-petitioner there were briefs and oral argument by Matthew R. Jelenchick, Niebler, Pyzyk, Roth & Carrig LLP, Menomonee.For the defendant-respondent there was a brief and oral argument by Amy J. Doyle, Crivello Carlson, S.C.
¶ 1 This is a review of an unpublished per curiam decision of the court of appeals, Emjay Investment Co. v. Village of Germantown, No. 2009AP1714, unpublished slip op., 2010 WL 2598211 (Wis.Ct.App. June 30, 2010), that affirmed an order of the Washington County Circuit Court 1 granting the Village of Germantown's motion to dismiss Emjay Investment Company's appeal of special assessments levied under Wis. Stat. §§ 66.0701 and 66.0703 (2003–04).2 The circuit court dismissed the appeal because Emjay Investment Company (Emjay) failed to appeal within 90 days after the date on which the Village of Germantown (Germantown) published its final resolution levying the special assessments or mailed notice of its final resolution to interested persons. See Wis. Stat. § 66.0703(12)(a), (e). The court of appeals affirmed. We granted Emjay's petition for review.
¶ 2 Emjay does not dispute that it failed to comply with the 90–day period of appeal 3 set forth in Wis. Stat. § 66.0703(12)(a). Instead, Emjay argues that § 66.0703(12)(a) does not apply in this case because (1) the special assessments were contingent; (2) the special assessments were levied after construction of the improvements was completed; or, alternatively, (3) the special assessments were fraudulent. In any case, Emjay argues that its appeal can proceed under Wis. Stat. § 893.72, irrespective of the 90–day period of appeal in Wis. Stat. § 66.0703(12)(a).
¶ 3 We disagree with Emjay and therefore affirm the court of appeals' decision.
¶ 4 We conclude that Emjay's appeal and complaint challenging the special assessments levied by Germantown are governed by the 90–day period of appeal in Wis. Stat. § 66.0703(12)(a). We further conclude that Wis. Stat. § 893.72 is inapplicable in this case. It is undisputed that Emjay filed its notice of appeal and complaint years after the 90–day period of appeal had passed, and accordingly, the circuit court properly dismissed the action.
¶ 5 Mark and Donna Lohmann are the general partners of Emjay. Until 2007, Emjay owned two parcels of land on the corner of Appleton Avenue (State Highway 175) and County Line Road (County Highway Q) in Germantown. Emjay owned and operated Lohmann's Steak House on that corner for over 60 years.
¶ 6 In the late 1990s, Menard, Inc. (Menard) submitted a development plan to Germantown for a proposed retail development to be located at the intersection of Appleton Avenue and Maple Road. Menard and Germantown agreed that certain road improvements would need to be undertaken in order to accommodate the large retail development. Specifically, Appleton Avenue would need to be widened, and a sewer lift station situated in the proposed expansion area would need to be relocated. In addition, the intersection of Appleton Avenue and Maple Road would need to be reconstructed, including installation of traffic signals and turn lanes.
¶ 7 On July 1, 2002, Germantown entered into a Development Agreement with Menard, in which Menard agreed to install and pay for the above-mentioned improvements. In return, Germantown agreed to reimburse Menard for a portion of the cost through special assessments levied against and collected from benefitted properties. The Development Agreement defined the benefitted properties as those abutting Appleton Avenue, or more specifically:
Owners or purchasers of benefitted properties abutting STH 175, including without limitation, owner or purchasers of properties located on the south side of STH 175 running from CTH Q to the gas pipeline north of the Maple/STH 175 intersection and owners or purchasers of properties located on the north side of STH 175 running from the [Menard] Property to the gas pipeline north of the Maple/STH 175 intersection.
It is undisputed that Emjay's property was located within that geographical description (hereinafter the “Special Assessment District”).
¶ 8 Menard commenced construction. The improvements were significantly completed by the end of 2003.
¶ 9 During that time, on July 7, 2003, Germantown adopted a Preliminary Resolution declaring its intent to exercise its police powers under Wis. Stat. §§ 66.0701 and 66.0703 and under § 8.04 of Germantown's Municipal Code to levy special assessments against the Special Assessment District for the relocation of Sanitary Sewer Lift Station No.3 and for the road improvements to Appleton Avenue. See Wis. Stat. § 66.0703(4). The Preliminary Resolution provided that “[t]he special assessments shall be deferred, with interest, until the benefitted property is conveyed or developed, whichever comes first.”
¶ 10 On July 11, 2003, Germantown mailed notice of the Preliminary Resolution to all interested property owners, including Emjay.
¶ 11 On or about April 25, 2004, Germantown's Director of Public Works and Village Engineer filed with the Village Clerk a report on the proposed special assessments. See Wis. Stat. § 66.0703(4), (5). The report detailed the cost of the improvements, which totaled $3,144,313.44. See § 66.0703(5)(b). The report also included a Statement of Benefits, which provided that the Director of Public Works examined the relevant area and made a benefit determination for each parcel included within the Special Assessment District. See § 66.0703(5)(c), (d). Concerning the two parcels owned by Emjay, the report proposed a special assessment of $73,417.01 and $85,291.39, respectively. The Director of Public Works determined that “a benefit will accrue to each of the properties due to the improvement on the basis of providing improved safety through controlled traffic flow and turning movements and enhanced economical value to the property.”
¶ 12 On April 28, 2004, Germantown published notice of a May 17, 2004, public hearing on the Preliminary Resolution and mailed notice of the public hearing to all interested property owners, including Emjay. See Wis. Stat. § 66.0703(7)(a).
¶ 13 Once Emjay received notice of the public hearing, Mark Lohmann telephoned Germantown's Village Hall. According to Mark Lohmann, a person at Village Hall informed him that the special assessment would not affect Emjay's property because the property was already commercially developed.
¶ 14 As noticed, Germantown conducted a public hearing on the Preliminary Resolution on May 17, 2004.
¶ 15 On June 21, 2004, Germantown adopted Resolution No. R21–04, the Final Resolution levying special assessments against the Special Assessment District for the relocation of Sanitary Sewer Lift Station No.3 and for the road improvements to Appleton Avenue. See Wis. Stat. § 66.0703(8)(c). The Final Resolution explicitly provided that the special assessments were made pursuant to Germantown's police power and pursuant to Wis. Stat. §§ 66.0701 and 66.0703 and § 8.04 of Germantown's Municipal Code. In addition, the Final Resolution expressed Germantown's determination that the properties located in the Special Assessment District “have received a special benefit” from the improvements and that the proposed special assessments have a reasonable basis.
¶ 16 Relevant to this case, the Final Resolution provided that pursuant to Wis. Stat. § 66.0715, the special assessments “shall be deferred, along with accrued interest ... until the benefitted property is commercially developed or redeveloped.” The special assessments were deferred for a period of up to 10 years:
If a benefitted property, or a portion thereof, is commercially developed or redeveloped, within ten (10) years, as measured from the date of execution of the Developer Agreement on July 1, 2002, to the date on which the Village [of Germantown] shall grant final approval of a site plan for the commercial development or redevelopment of the benefitted property, the principal balance of the special assessments, plus accrued interest as provided for herein, shall immediately become due and payable in full to the Village of Germantown.
The Final Resolution then stated that the special assessments, plus interest, collected from the benefitted properties will be paid to Menard, in accordance with the terms of the Development Agreement.
¶ 17 The Final Resolution was published on June 30, 2004. See Wis. Stat. § 66.0703(8)(d). On July 12, 2004, Germantown mailed notice of the Final Resolution to all interested property owners, including Emjay. See id. Emjay does not dispute that it received such notice.
¶ 18 In September 2007, Mark and Donna Lohmann retired, and Emjay sold its two parcels to a developer. Before the closing of the sale, Germantown sent Emjay two letters of special assessment, one for each parcel. Germantown claimed outstanding special assessments of $73,417.01 and $85,291.39, respectively, plus six percent interest, due and payable in full upon the sale of the property. In accordance with Germantown's claimed special assessments, the sale contract was amended, and Emjay was required to deposit $235,000 in escrow to cover the cost of the special assessments, subject to Emjay's right to contest the special assessments.
¶ 19 On May 30, 2008, Emjay filed a “Notice of Appeal Pursuant to Wis. Stat. Sec. 66.0703(12) and Complaint” against Germantown. The notice of appeal alleged that the special assessments were “defective” 4 and requested a judgment annulling the assessments under § 66.0703(12)(d). Emjay's complaint sought a judgment declaring the special assessments illegal and void and a judgment declaring that Germantown had no...
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