Village of Egg Harbor, Door County Wis. v. Sarkis

• Citation: 166 Wis.2d 5,479 N.W.2d 536
• Decision Date: 10 October 1991
• Docket Number: No. 91-0254,91-0254
• Parties: VILLAGE OF EGG HARBOR, DOOR COUNTY WISCONSIN, a Municipal Corporation, Plaintiff-Respondent-Cross-Appellant, v. James G. SARKIS, d/b/a Horseshoe Bay Pub and Restaurant, Defendant-Appellant-Cross-Respondent. d . Oral Argument
• Court: Court of Appeals of Wisconsin

Page 536

479 N.W.2d 536

166 Wis.2d 5

VILLAGE OF EGG HARBOR, DOOR COUNTY WISCONSIN, a Municipal Corporation, Plaintiff-Respondent-Cross-Appellant, v. James G. SARKIS, d/b/a Horseshoe Bay Pub and Restaurant Defendant-Appellant-Cross-Respondent. ^d

No. 91-0254.

Court of Appeals of Wisconsin.

Oral Argument Oct. 10, 1991.

Opinion Released Nov. 12, 1991.

Opinion Filed Nov. 12, 1991.

Donald Romundson, argued, George Burnett of Liebmann, Conway, Olejniczak & Jerry, S.C., on the briefs, Green Bay, for defendant-appellant-cross-respondent.

Dorothy Dey, Milwaukee, D. Todd Ehlers, Sturgeon Bay, argued, Shawn Govern, of Quale, Feldbruegge, Calvelli, Thom & Croke, S.C., Milwaukee, on the brief, for plaintiff-respondent-cross-appellant.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

James Sarkis appeals a judgment upholding an assessment by the village of Egg Harbor related to his remodeling of an existing structure into a pub and restaurant. Sarkis argues that the ordinance under which the assessment was made is inapplicable to him and that the ordinance is unconstitutional. He also contends that the fine imposed against him for failure to pay the assessment was unreasonable. We reject these arguments and affirm the assessment.

The village cross-appeals that portion of the court's judgment striking down the provision of the ordinance allowing interest to be calculated on the new assessment from the date of the enactment of the ordinance to the date of reassessment. The trial court found the provision to be unconstitutional and an abuse of exercise of the village's police power. The village argues that its interest calculating provision is reasonable because the village has been paying interest on bonds for the construction of the sewage system since it was built. We conclude that the interest provision of the ordinance is unreasonable and, therefore, affirm the trial court's judgment.

The village of Egg Harbor constructed its sewage system in 1987. It then enacted an ordinance to assess property owners in the village to recoup the cost of the system. In May 1988, Sarkis bought property in Egg Harbor. The property was used as a body shop and warehouse prior to Sarkis' purchase and had initially been assessed one residential equivalent unit (REU).

Sarkis remodeled the building into two retail shops. As a result of this remodeling, he was assessed and paid an additional REU. In June 1989, Sarkis added a restaurant and pub to his facilities. As a result of this remodeling, the village assessed Sarkis an additional 4.5 REUs. Sarkis refused to pay the additional 4.5 REUs and challenged the validity of the assessment in court. The trial court found that the village properly reassessed Sarkis under the ordinance and found the reassessment provision to be constitutional, but set aside that portion of the ordinance permitting the village to assess interest on the additional REUs calculated from the date the ordinance was enacted to the date of the assessment. The court then imposed a fine against Sarkis pursuant to the ordinance for failure to pay the assessment.

Sarkis argues that the ordinance by its terms does not permit the additional assessment against his property. In the alternative, he argues that the ordinance is ambiguous and, therefore, should be construed against the drafter.

The rules for the construction of statutes and ordinances are the same. Sauk County v. Trager, 113 Wis.2d 48, 55, 334 N.W.2d 272, 275 (Ct.App.1983). The construction and application of an ordinance to a particular set of facts are questions of law that we review de novo. Eastman v. City of Madison, 117 Wis.2d 106, 112, 342 N.W.2d 764, 767 (Ct.App.1983). First, we look to the language of the ordinance to determine whether it is ambiguous. An ordinance is only ambiguous when reasonably well-informed persons can disagree as to its meaning. Kearney & Trecker Corp. v. Wisconsin DOR, 91 Wis.2d 746, 753-54, 284 N.W.2d 61, 65 (1979). If we conclude the ordinance is ambiguous, we do not, as Sarkis suggests, construe the ordinance against the drafter. Instead, we examine the scope, history, context, subject matter and object of the ordinance to ascertain the intent of the legislative body that passed it. See Tahtinen v. MSI Ins. Co., 122 Wis.2d 158, 166, 361 N.W.2d 673, 677 (1985).

In pertinent part, the ordinance in question provides:

The Village of Egg Harbor hereby establishes permits, fees and charges relative to the connection of properties which are not served by the village sewage system, or other village utility facilities:

....

3. Where remodeling or additions to an existing structure would change the R.E.U.'s assessed, then an additional amount equal to the new R.E.U.'s times the original assessment amount of $3,067.00 per R.E.U. plus interest calculated as set forth above must be paid in full before occupancy is permitted.

First we address Sarkis' contention that, based on the language contained in the preamble, the ordinance unambiguously applies to only those properties that are not yet hooked up to the system. ¹ He argues that because his property was already hooked up to the system at the time he remodeled, it cannot be reassessed under the ordinance. We disagree.

The preamble does not in any way limit the application of the ordinance. The preamble is an expression of the village's intent to create an ordinance that would assess fees and charges related to the construction of the village sewage system. The ordinance, enacted prior to the connection of any properties to the system, alludes to the fact that the charges are related to the connection of properties within the village to the new sewage treatment facility. This allusion to historical fact, however, does not alter the language of subsection three that clearly contemplates reassessments against property owners who alter the nature and use of their property by additional construction or remodeling.

Accordingly, we find no merit in the suggestion that the provisions of the ordinance do not apply to any facility already connected to the sewage system. We hold that the sole reference to properties not connected to the system in the preamble reflects the fact that none of the properties in the village was connected to the newly-constructed facility at the time of the adoption of the ordinance.

Next, we address Sarkis' contention that the preamble renders subsection three of the ordinance ambiguous. He argues that one could reasonably read the preamble to limit the application of subsection three to only those facilities that are remodeled prior to connection to the system. Consistent with our previous discussion, we find this reading of the statute to be unreasonable. The preamble does not limit the substantive provisions of the ordinance; it merely expresses the village's intent to set up a basis for assessing property owners to pay for the new sewage treatment plant.

While we reject Sarkis' contention that the ordinance is ambiguous, we note that it is unlikely the village board intended to assess restaurants in the village differently based upon whether they were connected to the sewage treatment facility at the time of additional construction or remodeling. Sarkis' interpretation of the ordinance would encourage property owners to hook up to the sewage system and then undertake extensive remodeling projects because they would be immune from reassessment. The cost of the sewage system, under such circumstances, would be disproportionately borne by property owners who had restaurants on their property prior to connection to the sewage system. Such a result creates grave disparities in treatment among restaurant owners in the village.

Consequently, even if we were to conclude that the ordinance is ambiguous, we would determine that the village did not intend to create such unreasonable and disparate results among comparable property owners in the village limits. We would, therefore, resolve the ambiguity in favor of the village's intent that remodeled properties be reassessed upon remodeling regardless of whether they were already hooked up to the system.

Sarkis also contends that the ordinance constitutes an unconstitutional exercise of the village's police power because it allows reassessment where no additional benefit is conferred on the property. An ordinance is presumed to be constitutional. Eastman, 117 Wis.2d at 11, 342 N.W.2d at 767. It is the burden of the party seeking to have the ordinance struck down to prove its unconstitutionality beyond a reasonable doubt. Id.

When a municipality proceeds under its police power, an assessment based on a benefit and made on a reasonable basis is constitutional. See CIT Group/Equip. Fin. v. Germantown, 163 Wis.2d 426, 437-38, 471 N.W.2d 610, 614 (Ct.App.1991). Therefore, our inquiries are whether Sarkis' property was benefitted by the sewage system and whether the assessment is reasonable. The municipality need not show that the assessment does not exceed the value of benefits as required under the exercise of the general taxing power. Gelhaus & Brost, Inc. v. City of Medford, 144 Wis.2d 48, 51, 423 N.W.2d 180, 181-82 (Ct.App.1988).

Sarkis contends that in order to reassess his property, an additional benefit must be conferred upon his property...