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High court sides with property owner in dispute over assessment from roundabout

This roundabout at the intersection of Jackson Street and Murdock Ave. in Oshkosh is at the center of a decision the Wisconsin Supreme Court handed down on Tuesday. It’s the second time a case involving the roundabout has gone before the high court. (File photo by Kevin Harnack)

This roundabout at the intersection of Jackson Street and Murdock Ave. in Oshkosh is at the center of a decision the Wisconsin Supreme Court handed down on Tuesday. It’s the second time a case involving the roundabout has gone before the high court. (File photo by Kevin Harnack)

How much litigation can come from the construction of a single roundabout? Enough to result in two separate cases going before the state Supreme Court, apparently.

On Tuesday, the Wisconsin Supreme Court for a second time handed down a decision involving a roundabout project in Oshkosh. To make room for the $4 million project, built in the late 2000s where Oshkosh’s Jackson Street crosses Murdock Avenue, the city bought land that was then home to a much-beloved KFC.

Besides closing down that restaurant, the project also led Oshkosh officials to impose a “special assessment” of more than $40,000 on an abutting land owner, CED Properties. Officials argued  the city was owed the money because the roundabout work had resulted in improvements to CED’s property.

In its first challenge of the special assessment, CED Properties successfully argued before the state Supreme Court that the city had not followed correct procedures in trying to collect the money. The second challenge, on which the Supreme Court issued a decision on Tuesday, questioned the city’s claim that the roundabout project had resulted in improvements for abutting landowners. Once again, CED was successful.

At the heart of the company’s arguments were state statutes allowing municipalities to charge abutting property owners a special assessment when a project results in special benefits that increase their property’s value or in increased services.

In Tuesday’s 5-2 decision, the justices found that CED Properties had presented enough evidence to argue that the roundabout in Oshkosh may not have resulted in a special benefit. Rather than absolve the company from paying the $40,000 special assessment, though, the justices sent the case back to Winnebago County Circuit Court for a trial.

Reached on Tuesday, CED’s attorney, Erik Olsen of Madison-based Eminent Domain Services, said he is confident that his client will win in circuit court. Whatever happens there, the possibility of appealing the outcome means the case could once again make its way back to the Supreme Court.

Were that to happen, the outcome could well change the way cities and other local governments conduct assessments, said Richard Carlson Appleton-based Silton Seifert Carlson, who is representing the city of Oshkosh in the case.

Olsen disagreed.

“The city can still do special assessments,” he said. “But now landowners know what they have to do contest those assessments, and the cities know much better what they can and can’t do.”

At a minimum, Olsen said, the Supreme Court’s decision on Tuesday has helped to clarify Wisconsin’s special-assessment law. Now, he said, property owners won’t have to do as much legwork to figure out how to best challenge special assessments. He noted that Justice Rebecca Bradley, writing for the majority in Tuesday’s decision, laid out three interdependent requirements that must be met for a city to levy a special assessment on a public project.

Above all, Olsen said, the decision comes as a victory for property owners.

“We have municipalities running rampant,” he said. “It’s clear they’re going to be knocking down KFCs and building islands in roundabouts until people who don’t do those things get elected.”


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