When the city condemned a portion of CED’s property back in 2012 for a highway project (replacing an intersection with a roundabout), the city’s appraiser testified that the taking did not confer any “special benefits” to CED’s remainder parcel. Eventually, CED and the city settled the case and the city paid agreed-upon compensation and severance damages.
Flash forward a few years, and to help fund the roundabout project, the city adopted a special assessment and tagged CED and other nearby landowners. Based on its street frontage, the city charged CED a total of $40k, asserting that CED’s parcel had specially benefited from the improvement project by, among other things, “a substantial increase in accessibility, which includes safer, lower cost, and short travel time for customer, deliveries and employees. These special benefits are different in kind that those enjoyed by the public for through traffic.” The city acknowledged there were also community (“general”) benefits brought about by the project, but argued that the presence of specific benefits to CED’s parcel allowed it to make the assessment.
CED appealed, asserting the project conferred only community benefits, pointing out that hey, during the condemnation, the city asserted the project did not confer any special benefits to CED’s parcel, and arguing that the term “special benefits” has the same meaning in both Wisconsin’s eminent domain code and special assessment statute:
because the City conceded “special benefits” did not accrue to CED’s property during the Wis. Stat. ch. 32 eminent domain action, the City forfeited the opportunity to assert “special benefits” during the later special assessment appeal.
CED also submitted evidence in the form of an appraiser who testified that the project did not confer any benefits, special or general, to CED’s parcel. The city, by contrast, asserted the term “special benefit” has one meaning for purposes of eminent domain, and a different meaning when used in the special assessment statute. The trial court granted the city summary judgment because CED could not overcome the presumption of validity for assessments. The court of appeals agreed that the special assessment was reasonable as a matter of law.
In CED Properties, LLC v. City of Oshkosh, No. 2016AP 474 (Apr. 3, 2018), the Wisconsin Supreme Court held that the term “special benefit” means the same thing in the eminent domain code as it does in the special assessment statute. But (and this is a finer point), this doesn’t mean the term is used the same in both statutes:
CED and the City disagree on whether the term “special benefits” has the same meaning in both Wis. Stat. ch. 32 and ch. 66. CED argues that if it has the same meaning, then the City cannot take the position that no special benefits exist in a ch. 32 action but later assert special benefits exist in a ch. 66 action. We hold the term “special benefits” has the same meaning in both statutes, but that it is used differently in each context. Accordingly, the City is not barred from imposing a special assessment on CED’s property to pay for improvements, provided the City establishes the improvements were local, conferred special benefits on CED’s property, and were fair, equitable, and in proportion to the benefits accruing to the property. These issues involve questions of fact for the trier of fact to resolve.
Slip op. at 12.
Generally, “‘[s]pecial benefits’ means “an uncommon advantage.'” Slip op. at 14. But in eminent domain, this advantage is linked to the market value of the property; in the special assessment statute, it is not linked. Thus, the court concluded:
We conclude that “special benefits” has the same meaning in each statute, but the failure to raise the issue of special benefits in an eminent domain action does not necessarily preclude a municipality from levying and collecting “special benefits” via a subsequent special assessment. Notably, in an eminent domain action, only special benefits accruing to the property that affect its market value because of the planned improvement are required to be considered and used to offset the value of the property taken. Wis. Stat. § 32.09(3). In contrast, special assessments upon property may be levied and collected for special benefits conferred on the property by the improvement, regardless of the impact on the property’s market value; Wis. Stat. § 66.0703 is silent on the subject.
Slip op. at 19.
So the city was not automatically precluded from claiming that a parcel is specially benefited by a project just because the city had claimed that it had not been benefited in an earlier condemnation.
But it did not mean the city’s assessment here met all the requirements of imposing an assessment in the statute. The court held the city’s earlier assertion that CED’s parcel was not specially benefited should not have been ignored, and remanded the case to consider that fact, and others.
In other words, the city’s earlier position, and CED’s appraiser’s affidavit contradicted the city’s proffered evidence on special benefits, and revealed a dispute about a genuine issue of material fact, thus making summary judgment inappropriate. Slip op. at 31.
CED Properties, LLC v. City of Oshkosh, No. 2016AP474 (Wis. April 3, 2018)