Park Ave. Plaza v. City of Mequon

• Citation: 747 N.W.2d 703,2008 WI App 39
• Decision Date: 20 February 2008
• Docket Number: No. 2006AP2339.,2006AP2339.
• Parties: PARK AVENUE PLAZA, Scannell Family, Ltd., PJL Group, Khalid Ahmed, JRJ Properties, LLC, Mequon Motel Investors, Telahc, Inc., Stern Real Estate, LLC, Peter Plautz, Zimon, LLC, Wladys Pawelec, Allna Pawelec, and Holdings, LLC, Plaintiffs-Appellants, v. CITY OF MEQUON, Defendant-Respondent.
• Court: Court of Appeals of Wisconsin

747 N.W.2d 703

2008 WI App 39

PARK AVENUE PLAZA, Scannell Family, Ltd., PJL Group, Khalid Ahmed, JRJ Properties, LLC, Mequon Motel Investors, Telahc, Inc., Stern Real Estate, LLC, Peter Plautz, Zimon, LLC, Wladys Pawelec, Allna Pawelec, and Holdings, LLC, Plaintiffs-Appellants, v. CITY OF MEQUON, Defendant-Respondent.

No. 2006AP2339.

Court of Appeals of Wisconsin.

Submitted on Briefs October 4, 2007.

Opinion Filed February 20, 2008.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Alan Marcuvitz and Andrea H. Roschke of Michael Best & Friedrich, LLP, Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Raymond J. Pollen and Amy J. Doyle of Crivello, Carlson & Mentkowski, S.C., Milwaukee.

Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.

¶ 1 SNYDER, J

Park Avenue Plaza, together with other commercial property owners along Port Washington Road (Park Plaza), appeals from a summary judgment affirming special assessments levied by the City of Mequon after public improvement work was completed. Park Avenue also appeals from the court's order denying a motion for reconsideration. Park Avenue contends the circuit court erred when it concluded that the City complied with the statutory procedures set forth in WIS. STAT. § 66.0703 (2005-06),¹ governing a municipality's power to levy and collect special assessments. It also challenges the court's determination that special benefits were conferred on commercial property owners and that the special assessments were made on a reasonable basis; specifically, Park Avenue contests the exclusion of residential property owners from any obligation under the assessment. Park Avenue asserts that the court should have reconsidered its ruling in light of the supreme court's decision in Steinbach v. Green Lake Sanitary District, 2006 WI 63, 291 Wis.2d 11, 715 N.W.2d 195. We disagree and affirm.

BACKGROUND

¶ 2 The events underlying this appeal span several years and two phases of public improvements along Port Washington Road in the City of Mequon. The improvements included adding new lanes and a median, new lighting, landscaping, sidewalks, curbs, and storm sewer. The first phase began in 1991 along the northern portion of Port Washington, and a special assessment occurred shortly thereafter. Improvements along the southern portion of Port Washington, south of Mequon Road, took place between the spring of 2000 and fall of 2001. This second phase of improvements is the subject of this lawsuit.

¶ 3 On November 13, 1996, the City held a public informational meeting to present the project and hold an informal discussion with project staff. There, the Mequon City Engineer informed attendees that special assessments for the work on the southern portion of Port Washington Road would "probably" be accomplished using the same method as that used for the northern portion. Property owners asked questions about sidewalks, medians, ditch drainage, and a nearby berm.

¶ 4 The formal statutory process to levy the assessments began in September 2001, when the City of Mequon Common Council adopted Preliminary Resolution No. 2291, stating its intent to levy a special assessment to "recover all or part of the City's local share of the Port Washington Road project expenditures." The special assessment was delayed, however, because the City was waiting for the Wisconsin Department of Transportation to determine the final project costs. Funds to cover the road work came from different sources, including the City and the County.

¶ 5 On November 10, 2003, the city engineer submitted his report in accordance with Preliminary Resolution No. 2291. The report calculated the assessable amount of the local share of costs to be $528,657. Two days later, the City issued a notice of public hearing to be held on December 9, 2003; however, the matter was removed from the hearing agenda due to "technical issues that need further investigation and clarification."

¶ 6 The process began anew on February 10, 2004, when the common council approved Preliminary Resolution No. 2490 to levy a special assessment under their police power pursuant to WIS. STAT. § 66.0703. As required, the city engineer's report was filed on July 21, 2004, and the matter was set for a noticed public hearing. In the interim, the City continued discussions and the proposed assessment was eventually reduced from approximately $528,000 to approximately $490,000.

¶ 7 The public hearing took place on August 10, 2004; eleven people took the opportunity to speak against the proposed assessment and twelve others registered their opposition without further comment. Final Resolution No. 2522 to levy the assessment was ultimately approved on October 15, 2004.

¶ 8 The City employed a trip generation formula, which apportioned the assessment in accordance with the number of vehicle trips each property was projected to generate. The City limited the assessment to the commercial properties along Port Washington Road and declined to levy against the residential properties.

¶ 9 On January 13, 2005, Park Avenue filed an appeal from the special assessment. In its motion for summary judgment, Park Avenue asserted that the City had not complied with statutory procedures under WIS. STAT. § 66.0703, and that it was unreasonable to exclude residential property owners from the special assessment. After reviewing the briefs and hearing oral arguments from the parties, the circuit court held that the City had complied with the statutory requirements, that commercial property owners had received special benefits from the road improvements, and that the special assessments were properly allocated using a reasonable methodology. On June 2, 2006, the court issued a decision denying Park Avenue's motion for summary judgment. Shortly thereafter, the court followed with a judgment, dismissing all of Park Avenue's claims with prejudice.

¶ 10 On October 6, 2006, Park Avenue filed a motion for relief from judgment on grounds that the supreme court's recent decision, Steinbach v. Green Lake Sanitary District, 2006 WI 63, 291 Wis.2d 11, 715 N.W.2d 195, required a different outcome. The court determined that Steinbach did not change the law and refused to provide Park Avenue with relief from the judgment. Park Avenue appeals.

DISCUSSION

¶ 11 Park Avenue presents three issues for our review: (1) whether the special assessment comported with statutory requirements under WIS. STAT. § 66.0703, (2) whether the assessed properties received special benefits, and (3) whether the assessments met the reasonableness test where all residential properties were excluded from the assessment. Following our initial review of the appeal, we ordered supplemental briefs on two additional issues. First, we inquired as to whether the circuit court's denial of Park Avenue's summary judgment motion fully disposed of the § 66.0703(12)(a) appeal. Also, we asked whether the denial of the summary judgment motion satisfied the disposition mandate under § 66.0703(12)(d). Both parties agreed, and we accept, that the decision and order below represented a final disposition of the case and conformed to the statutory requirements if not on its face, at least in its function. Accordingly, we turn to the merits of Park Avenue's appeal.

The Statutory Procedure

¶ 12 Park Avenue contends that the City pursued the public improvement project and the assessments in reverse order: the City made the improvements before embarking on the statutory process. For support, Park Avenue directs us to WIS. STAT. § 66.0703, which provides the procedures a municipality must follow when levying a special assessment. Under the statute, a municipality planning to levy a special assessment must, "[b]efore the exercise of any [special assessment] powers conferred by this section ... declare by preliminary resolution its intention to exercise the powers for a stated municipal purpose." Sec. 66.0703(4). Because Park Avenue argues the anticipatory nature of the precise language of the statute, we repeat the relevant portion here:

The resolution shall describe generally the contemplated purpose, the limits of the proposed assessment district, the number of installments in which the special assessments may be paid, or that the number of installments will be determined at the hearing required under sub. (7), and direct the proper municipal officer ... to make a report on the proposal.

Id. In addition, the statute provides that the report must include preliminary or final plans, an estimate of the entire cost of the proposed project, and, where the special assessment constitutes an exercise of police power, a "statement that the property against which the assessments are proposed is benefited." Sec. 66.0703(5). Park Avenue notes that "the improvements were constructed between April, 2000, and September, 2001. No formal special assessment procedures were undertaken before September 20, 2001" and the process again was delayed for over two years as costs were reevaluated.

¶ 13 Park Avenue argues that the language of the statute reveals the legislature's intent to start the assessment process before the actual work begins. It notes, for example, that the preliminary resolution should describe the "contemplated" purpose of the project. See WIS. STAT. § 66.0703(4). Further, it states that the report should contain an "estimate" of the cost of the "proposed" work. See § 66.0703(5)(b). Also, the statute states, "When the governing body finally determines to proceed with the work ... it shall approve the plans and specifications and adopt a resolution directing that the work or improvement be carried out and paid for in accordance with the final report as finally approved." Sec. 66.0703(8)(c) (emphasis added). Finally, "[w]hen the final resolution is published, all work or improvements described in the resolution ... and assessments arising from the resolution are then...