CED Properties, LLC v. City of Oshkosh
909 N.W.2d 136
Wis.2018Background
- CED Properties owns a Taco Bell franchise at the Jackson (Hwy 76)–Murdock (US 45) intersection in Oshkosh. The City reconstructed the intersection as a multi-lane roundabout, taking about 6% of CED’s land by eminent domain and paying $180,000 compensation.
- In the eminent domain proceeding the City’s expert testified the taking decreased CED’s value and that no “special benefits” accrued to CED under Wis. Stat. § 32.09(3).
- The City then levied special assessments under Wis. Stat. § 66.0703 to fund part of the project and reassessed CED for $40,103.03, describing special benefits as increased accessibility, safer/shorter travel times for customers, sidewalk repairs and streetscaping.
- CED challenged the special assessment as conferring only general benefits, lacking a nexus to the linear-foot assessment, and being unequally apportioned; it submitted an expert affidavit opining the roundabout reduced its property value and conferred no special benefits.
- The circuit court granted summary judgment for the City; the court of appeals affirmed (one dissent). The Wisconsin Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does "special benefits" have the same meaning under Wis. Stat. ch. 32 and ch. 66, and does a municipality's denial of special benefits in an eminent domain action bar later asserting them in a special-assessment action? | CED: Same meaning, so City's prior concession that no special benefits existed in eminent domain precludes later assessment. | City: Statutes differ in use; denial in eminent domain does not preclude later asserting special benefits for assessments. | Term means the same ("uncommon advantage") but is used differently: ch. 32 limits to benefits affecting market value for offsets; ch. 66 imposes assessments for special benefits regardless of market-value effect. Prior denial is not per se dispositive but is relevant evidence. |
| Whether the City met prerequisites for a police-power special assessment: (locality, special benefit, reasonableness). | CED: The project is a general/public improvement; no special/local benefit to CED; assessment is unreasonable and unequally apportioned. | City: Project confers local/special benefits (accessibility, sidewalks, aesthetics); assessment presumption of correctness unrebutted. | These prerequisites are factual questions. CED’s expert affidavit created genuine factual disputes on locality, existence of special benefits, and thus reasonableness; summary judgment was improper and remand for trial is required. |
| Whether the presumption of correctness for the City’s assessment was overcome on summary judgment. | CED: Submitted competent, contradictory expert evidence (affidavit & appraisal) to rebut the presumption. | City: CED failed to produce sufficient evidence to overcome the conclusive presumption of correctness. | The Court held the presumption is rebuttable; CED’s expert affidavit raised material factual disputes and overcame the presumption for summary judgment purposes. |
| Whether a roundabout is an "improvement" vs. a "service" for assessment purposes. | CED: (argued services not relevant here) | City: Characterized benefits broadly to justify assessment. | Court: Roundabout is an improvement (not a statutory "service"); assessments under §66.0703 apply to improvements. |
Key Cases Cited
- CED Properties, LLC v. City of Oshkosh, 352 Wis. 2d 613 (Wis. 2014) (this Court’s prior decision addressing timeliness and sufficiency of CED’s complaint)
- Molbreak v. Village of Shorewood Hills, 66 Wis. 2d 687 (Wis. 1975) (presumption that assessments are based on benefits and standards for overcoming that presumption)
- Hietpas v. State, 24 Wis. 2d 650 (Wis. 1964) (special benefits in eminent domain limited to immediate/imminent market-value increases)
- Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (Wis. 2004) (statutory interpretation principles)
- Genrich v. City of Rice Lake, 268 Wis. 2d 233 (Ct. App. 2003) (requirements for special assessments and summary-judgment standards)
- Park Ave. Plaza v. City of Mequon, 308 Wis. 2d 439 (Ct. App. 2008) (character of an improvement as a factual inquiry)
- First State Bank v. Town of Omro, 366 Wis. 2d 219 (Ct. App. 2015) (summary-judgment standard in special-assessment cases; expert affidavit can preclude summary judgment)