Statutory Interpretation

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WI Supreme Court

Case Name: CED Properties, LLC, v. City of Oshkosh

Case No.: 2018 WI 24

Focus: Statutory Interpretation

CED Properties, LLC (CED) challenges the special assessment imposed by the City of Oshkosh (City) following the reconfiguration of a traditional traffic light intersection into a roundabout.  We review the unpublished court of appeals decision, CED Properties, LLC v. City of Oshkosh, No. 2016AP474, unpublished slip op. (Wis. Ct. App. Jan. 18, 2017), affirming the circuit court’s grant of summary judgment in favor of the City.3 CED raises two issues: (1) whether the term “special benefits” in Wisconsin’s eminent domain statute has the same meaning in Wisconsin’s special assessments statute, and if so, whether the City’s denial of the existence of any special benefits during the earlier eminent domain proceeding precludes the City from asserting the conferral of special benefits in the later special assessment action; and (2) whether CED raised genuine issues of material fact precluding summary judgment.

We hold that “special benefits” has the same meaning under both statutes. Although the failure to raise the issue of special benefits in an eminent domain action does not necessarily preclude a municipality from later doing so in a special assessment action, a municipality’s admission that special benefits are non-existent in the context of an eminent domain proceeding constitutes relevant evidence in a later challenge to the special assessment.

We further hold the court of appeals erred in concluding CED failed to overcome the presumption of correctness afforded the City’s special assessment and to establish sufficient genuine issues of material fact. The affidavit of CED’s expert raises material factual issues in dispute, including whether the roundabout project conferred a local rather than a general benefit, whether the project conferred any special benefits on CED’s property or actually diminished its value, and whether the amount of the special assessment was fair and equitably apportioned among the commercial properties involved as well as proportionate to the benefits accruing to the property. Because we conclude CED overcame any presumption of correctness by presenting competent evidence to the contrary, we reverse the decision of the court of appeals and remand to the circuit court for a trial.

Reversed and Remanded

Concur:

Dissent: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY, J. (opinion filed)

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.