Sch. Dist. of Hillsboro v. City of Hillsboro

• Decision Date: 06 December 2012
• Docket Number: No. 2012AP888.,2012AP888.
• Citation: 826 N.W.2d 123,345 Wis.2d 848,2013 WI App 13
• Parties: SCHOOL DISTRICT OF HILLSBORO, Plaintiff–Appellant, v. CITY OF HILLSBORO, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

345 Wis.2d 848

826 N.W.2d 123

2013 WI App 13

SCHOOL DISTRICT OF HILLSBORO, Plaintiff–Appellant,

v.CITY OF HILLSBORO, Defendant–Respondent.

No. 2012AP888.

Court of Appeals of Wisconsin.

Dec. 6, 2012.

OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Vernon County: Michael J. Rosborough, Judge. Judgment reversed and cause remanded.

Before LUNDSTEN, P.J., BLANCHARD and KLOPPENBURG, JJ.¶ 1BLANCHARD, J.

In 1965, the Hillsboro School District constructed a high school on District property, former farmland, within the city limits of the City of Hillsboro. The construction project included creation of a new road, School Road,¹ which provided access to the high school. In 2010, the City improved School Road to address a storm water runoff problem in the area. The City then levied a special assessment against the District to cover the District's portion of the cost of the improvements to the road.

¶ 2 The District filed a complaint against the City in circuit court, seeking to annul the special assessment. The District moved for summary judgment, arguing that School Road was District property and therefore the City was without authority to construct the improvements or to levy the special assessment. The City also moved for summary judgment, on the ground that School Road was no longer District property but instead had become a public highway belonging to the City, by operation of Wis. Stat. § 82.31(2)(a) (2009–10), ² because the City had “worked” School Road “as a public highway” for more than ten years before undertaking the improvements.

¶ 3 The circuit court ruled in favor of the City, dismissing the District's complaint on summary judgment. The court concluded that there was undisputed evidence showing that the City had “worked” the road “as a public highway” for more than ten years.

¶ 4 Given case law interpreting the concept of “worked as a public highway” in Wis. Stat. § 82.31(2)(a), we conclude that case law allows a property owner to defeat a municipal claim under the statute by showing that such work was at least initially done by permission of the property owner, and that the municipality did not subsequently take unequivocally “hostile” actions regarding use or ownership of the property, meaning actions inconsistent with the property owner's rights. Here, there are reasonable inferences from the parties' affidavits giving rise to factual disputes as to whether the City's work on the road was initially permissive and whether the City subsequently took actions that unequivocally signaled hostility regarding use or ownership of the property. Therefore, neither the City nor the District was entitled to summary judgment and we reverse and remand for further proceedings.

BACKGROUND

¶ 5 Regarding the creation and maintenance of School Road, the District submitted evidence that included the following. Curt Bisarek, the District's administrator, averred that the school grounds, including School Road, were constructed by the District in 1965. Randy Darcy, who has worked on maintenance for the District since 1986, averred that School Road has only one use, namely, “to access the high school parking lot,” and that “the District has always permitted the public to use it for that purpose.” Based on this and other evidence, the circuit court characterized School Road as “a driveway connecting the highway [State Highway 33/82, known in the City as Lake Street] to the school parking lot.”

¶ 6 A former president of the school board, Francis Denman, averred that the District “resurfaced” the school parking lot in 1992 and 2001, and his best memory was that, at least in 1992, the resurfacing extended along School Road.

¶ 7 Darcy averred that, since he began performing maintenance at the District in 1986, “I have plowed School Road many times, each winter.... The City sometimes plows the road. At other times, when it has not, or I have determined that the school staff could not wait, I have plowed the road each year....” Darcy also averred, “[F]rom 1989 on, I have plowed School Road ... four to five times each winter.” In addition, he averred that he at least occasionally supplemented patching and gravel placement on School Road done by the City: “I have patched potholes and placed gravel on the road or shoulders about once every three or four years.” ³

¶ 8 On the same topic of work on School Road, the City submitted evidence that included the following. Greg Kubarski, the Mayor of Hillsboro, has resided near School Road his entire life (with memories dating from “the mid–1970s”), and has served as an alder or mayor every year since 1992. Kubarski averred that, throughout his life, while he had seen City trucks plowing School Road, “I have never seen nor heard of any [District] maintenance personnel doing any work on School Road.” Kubarski further averred, “Throughout my time as a City official, ... the City has always maintained [School Road] as a city street by plowing it, filling in gravel along the shoulders, and otherwise doing the regular maintenance required on city streets.” Kubarski averred that, in his capacity as alder and mayor, “I am not aware of there ever being any agreement between the School District and the City ... regarding maintenance of School Road.”

¶ 9 In a similar vein, but covering a shorter time period, Terry Revels, an employee of the City's street department, averred that, at least since his employment with the City in 2001, he had “performed the same type of road maintenance on School Road ... as the City performs on other city streets,” including: asphalt patchwork; trimming trees and brush along both sides of the street as needed; adding gravel to the shoulder areas at least once a year, and sometimes more often than that; and plowing snow. In contrast, “I have never seen nor heard of any [District] maintenance personnel doing any work on School Road similar to what I have described above,” and “I have not seen any results of any other maintenance work other than the work that the [City] does on School Road.”

¶ 10 The circuit court characterized the above affidavit evidence as showing that “[b]etween 1965 and 2010 the parties shared responsibilities and expenses for road maintenance on an informal, cooperative basis,” albeit with the City shouldering a heavier relative burden.

¶ 11 In August 2010, a City representative made a presentation to the District on a School Road improvement project. The president of the District's board of education, Robert Stekel, averred that the District did not consent to the project before, during, or after the meeting. In October 2010, Stekel further averred, he read a letter to the City's common council stating the District's opposition to the improvement project and asserting that the City was proposing “unauthorized improvements on property not owned by the city.”

¶ 12 In November 2010, the City's common council adopted a resolution authorizing the project, aiming “to improve the storm water drainage and management” in a drainage way near the high school, “including installation of asphalt concrete pavement, base course, curb & gutter, and all related appurtenant work along School [Road].” The City proceeded to have the improvement project designed, bid out, and constructed, and then levied a special assessment of $56,575.02 against District property abutting the road.

¶ 13 District Administrator Bisarek averred that the City initiated communications with the District in 2010 regarding a proposed “Service Exchange Agreement” between the two entities, which the parties entered into in December 2010. This agreement addressed, on a going-forward basis, snow plowing of School Road and lawn care in the area.

¶ 14 The District filed its complaint against the City pursuant to Wis. Stat. § 66.0703(12)(a), which authorizes property owners to challenge special assessments in circuit court. As indicated above, both parties moved for summary judgment. The court issued a written decision and order, followed by a final judgment, granting the City's motion for summary judgment, denying the District's motion for summary judgment, dismissing the District's challenge to the special assessment, and confirming the special assessment. The District appeals.

DISCUSSION

¶ 15 “We review de novo the grant of summary judgment, employing the same methodology as the circuit court. A party is entitled to summary judgment when there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2).” Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶ 9, 324 Wis.2d 180, 781 N.W.2d 503 (citations omitted).

¶ 16 Under summary judgment procedure, the court first examines the complaint to determine if it sets forth a claim for relief, and if it does, the court examines the answer to determine if it joins issue. Butler v. Advanced Drainage Sys., Inc., 2006 WI 102, ¶ 18, 294 Wis.2d 397, 717 N.W.2d 760. If issue is joined, the court examines “the moving party's affidavits to determine whether they establish a prima facie case for summary judgment.” Id. If so, “we review the opposing party's affidavits to determine whether there are any material facts in dispute, or inferences from undisputed material facts, that would entitle the opposing party to a trial.” Id.

¶ 17 Summary judgment is not appropriate if submissions on a material fact are subject to conflicting interpretations where reasonable people might differ as to their significance. See Grams v. Boss, 97 Wis.2d 332, 338–39, 294 N.W.2d 473 (1980). Every reasonable inference must be drawn in favor of the party opposing the motion for summary judgment. Id.

I. School Road as a Public Highway Under Wis. Stat. § 82.31(2)(a)

¶ 18 There is no dispute that the District's complaint sets forth a claim for relief and that the City's answer joins issue. Therefore we proceed to the question of whether the City's affidavits establish a prima facie case for summary judgment. The City...