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High court hears Oshkosh roundabout fight

By: Dan Shaw, [email protected]//December 18, 2013//

High court hears Oshkosh roundabout fight

By: Dan Shaw, [email protected]//December 18, 2013//

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Although Oshkosh officials made a blunder in notifying a property owner of special taxes for a nearby roundabout, they will have a second chance to set things right.

The same will not be true for the property owner, Fond du Lac-based CED Properties LLC, if it loses an appeal it argued Wednesday before the Wisconsin Supreme Court. Erik Olsen, a lawyer representing the company, conceded legal precedent has established that the law gives the public little opportunity to correct mistakes made in appeals of government decisions.

He also admitted his firm made just such a mistake when challenging Oshkosh officials’ July 27, 2010, decision to levy additional property taxes, or special assessments, on CED Properties to pay for a roundabout built at the crossing of the city’s Murdock Avenue and Jackson Street. Olsen said his firm’s blunder was in stating the amount for only one of the two assessments imposed on his client’s lot.

He and his colleagues, he said, challenged only the $19,241.73 assessment connected to the work on Murdock Avenue, leaving in question a separate $19,404.93 tied to Jackson Street.

By the time Olsen became aware of the error, he said, the city’s 90-day deadline for filing an appeal had passed. Still, he noted on Wednesday that his complaint correctly named both of the streets involved in the project and listed the parcel number attached to his client’s lot, which is the site of a Taco Bell restaurant.

If that information did not convey the intent to challenge the entire project, he said, what chance does any property owner have of successfully fighting special assessments?

“I think that if complaints are to be liberally construed, and if we are going to give a commonsense way that people can get their complaints heard,” then his client should prevail, Olsen told the justices Wednesday.

Richard Carlson, a lawyer representing the city’s insurer, the League of Wisconsin Municipalities Mutual Insurance, conceded Oshkosh had made mistakes. For one, he said, the notice sent to CED Properties omitted a legally required statement of the project’s benefits for the property owner.

Second, he said, the statement failed to inform CED Properties of the roundabout project’s total cost of $4 million. The omissions meant both assessments levied on CED Properties were invalid, he said.

Still, Carlson said, CED Properties challenged only one of the two assessments by the legal deadline, leaving the city within its rights to collect on the other. What’s more, legal precedent gives Oshkosh officials the right to do over the special assessment that was successfully challenged, a step they are likely to take, he said.

The statement prompted Justice Annette Ziegler to wonder whether the law is tilted too far in favor of local governments and too far away from taxpayers.

“The city can be wrong on virtually everything,” she said. “And if the taxpayer doesn’t appeal, the taxpayer loses.”

Olsen said regardless of what the Supreme Court decides, a constitutional question remains over whether a city should have the right to make a property owner pay extra for a project that provides no direct benefit. He said the roundabout at the corner of Murdock and Jackson was not meant for his client and was instead part of a larger Oshkosh and Wisconsin Department of Transportation plan to make driving city streets safer.

But, for the present, Olsen said, the public should be concerned about the barriers put up to challenges of government decisions. In the case argued Wednesday, he said, his client not only had to file an appeal within 90 days of receiving notice of the special assessment, but it also had to put up a $150 insurance bond and pay the additional taxes while the challenge was moving through the court system.

If the justices allow a technicality to trip up his client’s appeal, Olsen said, the precedent they set will be “something that makes it nearly impossible to win.”

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