The decision is problematic for two reasons: it is, at a minimum, logically inconsistent, and may be actually incorrect, insofar as it holds the Citys purpose if that purpose was to benefit the City rather than the property owners is not dispositive of the issue whether the improvement is local or general.
The overall holding of the court could not be clearer both purpose and effect are to be considered by the trier of fact in deciding the type of improvement.
The following statement by the court, however, is not consistent with that holding: a local improvement, although incidentally beneficial to the public at large, is primarily made for the accommodation and convenience of inhabitants in a particular locality and confers special benefits to their properties (emphasis added).
The use of the word and in this sentence suggests that, for an improvement to be local, it must meet two requirements: (1) the purpose must be to benefit the residents of a particular locality; and (2) the improvement must actually have that effect.
This being the case, in order for the Genrichs to prevail, as they argued, they need only show either that the primary purpose of the improvement was to benefit the City.
The court also stated, the Citys purpose for initiating improvements must be for reasons of accommodation and convenience (the what question), and the object of the purpose must be primarily for the people in a particular locality (the who question) for an improvement to fall within the local improvement category.
This statement, however, has nothing to do with effect. Both prongs of the inquiry who and what relate to purpose. It is merely a different way of stating the first prong of the first two-prong standard.
To support its rejection of the Genrichs argument, the court cites the statement in McQuillin that, [I]f [the improvements] primary purpose and effect are to benefit the public, it is not a local improvement (emphasis added).
Reliance on the statement from McQuillin, however, is somewhat misguided. It is not as though any of the cases McQuillin cites to support the statement directly considered and rejected the argument put forth by the Genrichs.
Thus, it is somewhat ironic that the court uses the term, and, carelessly in its own analysis, while giving such great import to use of the word in one sentence from McQuillin, which may have used the word just as carelessly as the court did.
The court also cites the Wisconsin Supreme Courts decision in Duncan Develop. Corp. v. Crestview San. Dist., 22 Wis.2d 258, 125 N.W.2d 617 (1964), for support.
However, the courts reliance is suspect, as a strong case can be made that Duncan supports the Genrichs argument instead.
Duncan holds, A local improvement, although it may incidentally benefit all the property in the municipality and the public at large, is made primarily for the accommodation and convenience of inhabitants of a particular area in the community whose property receives a special benefit from the improvement either in the form of service or of enhancement of the value. Duncan, 22 Wis.2d at 264.
However, the statement can easily be interpreted to create a two-part inquiry for purpose and effect, and if the improvement fails the purpose inquiry the primary purpose is not to accommodat[e] and convenience a particular subset of the community, but is to benefit the municipality or the public at large it cannot fit the definition of a local improvement, regardless of the benefits those property owners may receive.
The Genrichs seem to have a strong case that t
he Citys primary purpose was to build an extended driveway to its own park for the convenience of soccer players, rather than to benefit any of the people whose property abuts that driveway.
Contrary to the courts opinion, Duncan can and should be read to hold that this is all the Genrichs need to show in order to prevail.
– David Ziemer
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David Ziemer can be reached by email.