2010AP897 Hildebrand v. Town of Menasha

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Municipalities
Special assessments

A recreational trail is not a local improvement for which a municipality may levy special assessments.

“The Hildebrands successfully rebutted any presumption of the validity of the assessment and showed that the primary purpose of the trail—to complete the trail system in Winnebago county—confers a general, not local, benefit under the law. Assuming, for the sake of discussion, the Town is correct that a trail abutting the Hildebrands’ property confers a benefit to the property, this fact is not determinative. Merely proving that the Hildebrands are incidentally benefitted or that their benefit is arguably greater ‘in degree’ than the general public, does not transform the benefit from a general to a local benefit. See Genrich, 268 Wis. 2d 233, ¶¶14, 15. As the trial court pointed out, the Hildebrands’ property was already serviced by a different trail on the east end. Furthermore, in order for the Town to prevail in its argument that the Hildebrands received a local benefit from this new trail, the Hildebrands must also have received an uncommon advantage—i.e., a benefit that differs in kind, rather than in degree from that of the general public. See id., ¶14. The record shows nothing of the sort. Indeed, proof of incidental benefit and/or a benefit greater in degree conferred upon the Hildebrands is the most that can be gleaned from the Town’s evidence, including its experts’ testimonies. This is not enough.”

“We reject the Town’s argument that the trail is the equivalent of a sidewalk, the costs of which can be assessed against the property owner without any special procedure. See Wis. Stat. § 66.0907(f). The Town cannot have it both ways. The facts unequivocally show that the Town treated the trail as a trail. The Town cannot now call it a sidewalk simply to legitimize the special assessment levied against the Hildebrands’ property.”

Affirmed.

Recommended for publication in the official reports.

2010AP897 Hildebrand v. Town of Menasha

Dist. II, Winnebago County, Woldt, J., Anderson, J.

Attorneys: For Appellant: Koehler, Charles D., Appleton; For Respondent: Osowski, Beth D., Oshkosh

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