Lamasco Realty Co. v. City of Milwaukee

• Decision Date: 02 April 1943
• Citation: 8 N.W.2d 372,242 Wis. 357
• Parties: LAMASCO REALTY CO. v. CITY OF MILWAUKEE, and seven other cases.
• Court: Wisconsin Supreme Court

242 Wis. 357

8 N.W.2d 372

LAMASCO REALTY CO.

v.CITY OF MILWAUKEE, and seven other cases.

Supreme Court of Wisconsin.

March 9, 1943.

Rehearing Denied April 2, 1943. See 8 N.W.2d 865.

Appeals from eight several interlocutory judgments in the above entitled cases from the Circuit Court for Milwaukee County; Daniel W. Sullivan, Judge.

Six cases affirmed. Two cases reversed.

Eight actions by Lamasco Realty Company, by Standard Oil Company, an Indiana corporation, by Nakina Realty Company (two cases), by A. Gettelman Brewing Company, by Majestic Realty Corporation, by Wisconsin Electric Power Company, and by Mariner Realty Company, all against the City of Milwaukee, for purpose of determining validity of special assessments levied by the City of Milwaukee to cover part of the costs of widening an avenue therein. From interlocutory judgments approving the assessment generally, the plaintiffs appealed, and the respondent city served a notice of review of part of the decision.-[By Editorial Staff.]

Judgment in accordance with opinion.

The appeals in these cases were taken on or about July 30, 1942, pursuant to the provisions of ch. 275 of the Laws of 1931. The interlocutory judgments from which the appeals were taken were entered in each case on July 29, 1942.

Certain questions growing out of the widening of Kilbourn Avenue in the city of Milwaukee were before this Court for consideration in the case of City of Milwaukee v. Taylor, 1938, reported in 229 Wis. 328, 282 N.W. 448. After the record in that case had been remitted, further proceedings were had under ch. 275 of the Laws of 1931, assessments of benefits and damages were made and reported by the board of assessment to the common council and confirmed. From the confirmation certain property owners appealed. The above entitled actions were selected from four hundred fifty of these appeals pending in circuit court as test cases to determine the validity of the special assessment levied by the city of Milwaukee to cover part of the cost of widening Kilbourn Avenue. The interlocutory judgments entered approved the assessment generally but reserved the question of the amount of benefits allocable to each of the several parcels of real estate involved for further consideration.

The following statement of facts will disclose the background of the controversy and the facts material to the appeals:

April 20, 1920, an ordinance known as the civic center ordinance was adopted by referendum. This was the initiation of the effort of the city of Milwaukee to provide additional accommodations for east and west cross-town traffic which finally culminated in the widening of Kilbourn Avenue. Following the adoption of this ordinance the issuance of bonds was authorized and in 1922, the city issued and sold bonds aggregating $3,400,000 for the widening of Kilbourn Avenue. All of these bonds have now been retired with the exception of bonds aggregating $356,000.

A plan for widening Kilbourn Avenue was adopted by ordinance and assessments directed by resolution dated October 16, 1924. This matter was considered in City of Milwaukee v. Taylor, supra, hereinafter called the Taylor case. The civic center ordinance adopted in 1920 was repealed by referendum April 7, 1925.

Certain questions growing out of the condemnation proceedings instituted by the city attorney were presented to this Court in State ex rel. Allis v. Wiesner, 1925, 187 Wis. 384, 204 N.W. 589. In that case certain sections of the Milwaukee charter were considered and held invalid. Proceedings for condemnation were instituted in 1926 and on March 8, 1927, commissioners were appointed and subsequently filed their awards on the parcels necessary to complete the project.

On January 3, 1929, the common council adopted a resolution instructing the commissioner of public works to report to the common council a tentative assessment under ch. 347 of the Laws of 1923, with the use of sec. 7, ch. VII of the city charter. See City of Milwaukee v. Diller, 1927, 194 Wis. 376, 216 N.W. 837. The report of the tentative assessment was submitted to the council but at the request of the mayor made on October 6, 1930, the report was withheld and not acted upon.

June 19, 1931, ch. 275 of the Laws of 1931, hereinafter referred to as ch. 275, was enacted and the controversy now before the Court arises under the provisions of that act, popularly known as the Kline Law. By its terms it applied to all cities of the first class but did not become effective until approved by the voters in accordance with the provisions of the act. Such approval was voted April 5, 1932.

On March 15, 1937, the common council adopted a resolution approving a plan of improvement for the widening of Kilbourn Avenue between North 9th Street and North Prospect Avenue, including a part of Juneau Park, and directed the city attorney to institute the necessary actions to establish the necessity for taking. Pursuant to this resolution the Taylor case was commenced to obtain a verdict of necessity. The verdict of the jury was returned on January 25, 1939. On February 13, 1939, after the verdict was reported to it, the common council adopted a resolution directing the board of assessment to proceed with the assessment of damages and benefits in accordance with the provisions of ch. 275. The board commenced its work, adjourning from time to time to June 20, 1940, making its report in August, 1940. A period for correction and review was provided for and on October 7, 1940, the board made its final report to the common council. From the report it appeared that the board had assessed an amount aggregating $1,439,375 or 38.38% of the cost of the project, the total cost of which was $3,750,000. The board also assessed the sum of $26,000 as damages for the taking of the Gettelman property. On October 21, 1940, the common council adopted a resolution confirming the board's report and levied the assessments as therein provided.

Board's Method of Making the Assessment.

The board of assessment prepared a tentative plan pursuant to a resolution of the common council adopted June 25, 1934, which amended the preliminary resolution as amended and passed by the common council on March 20, 1933. The board prepared such a tentative plan in which it was stated that the total net cost which might be assessed was between $4,750,000 and $4,825,000 and that it estimated total benefits which should be assessed within the benefit district was between $2,835,000 and $2,895,000 or 60% of the total estimated cost and that it was the intention of the board to assess 60% of the total actual cost upon completion of the project. The report was referred back to the board of assessment for reconsideration and revision by action of the common council. The board of assessment then revised its report and the revised report was submitted on April 15, 1935, in which the total estimated cost was reported as between $3,700,000 and $3,800,000. Its estimate of the total benefits to be assessed for the completed project was stated as between $1,681,000 and $1,720,000 or 50% of the revised estimated total net cost. Concurrently therewith, the board submitted to the common council for study an unofficial plan. Under this unofficial plan the total estimated cost was between $3,964,000 and $4,065,000 and the estimate of total benefits for the completed project was stated as between $1,963,000 and $2,012,000 or 50% of the revised estimated total net cost.

On March 15, 1937, the common council adopted a resolution revising the revised report and tentative plan of the board of assessment, approving said revised report and tentative plan as revised by the common council and directing the city attorney to proceed with the condemnation of the property needed. The plan so adopted included heretofore existing as well as proposed improvements. The existing improvements included the property acquired and used for the widened portion of Kilbourn Avenue between North Broadway and North Sixth Street and the bridge across the Milwaukee River to connect East and West Kilbourn Avenue. The cost of the bridge was not included in the assessable cost. The total estimated assessable cost of the improvement was found to be between $3,926,000 and $4,024,000. Following this estimate the resolution contained the following sentence: “In accordance with this revision of the revised plan, 40 per cent of the actual assessable cost is to be assessed for benefits against the property benefited within the benefit district. The estimated assessable benefits, therefore, may be between $1,570,400.00 and $1,609,600.00 for the completed project.”

After the verdict of the jury the common council adopted a resolution on February 13, 1939, directing the board of assessment to proceed according to law, to determine the damages to be paid for each piece of property and the amount of benefits to be assessed against each piece of property benefited within the established benefit district. The report and statement of damages and benefits of said board was submitted to the common council on October 7, 1940. It was referred to a committee of said council and a public hearing was held and the committee reported recommending its confirmation. On October 21, 1940, the assessment was confirmed by the common council by the adoption of a resolution to that effect. In its report the board of assessment stated:

“Pursuant to the resolution of the Common Council, File Nnmber 51231, adopted February 13, 1939, directing the Board of Assessment to proceed, according to law, to determine the damages to be paid for each piece of property taken or injured and the amounts of the benefits to be assessed against each piece of property benefited within the established benefited district for the widening of Kilbourn Avenue as widened and to be widened between North Ninth Street and North Prospect Avenue, and including a part of Juneau Park, in the Third and Fourth...