Emjay Investment Co. v. Village of Germantown
797 N.W.2d 844
Wis.2011Background
- Emjay owned two Germantown parcels; Menard planned development requiring improvements; Germantown issued a Preliminary Resolution and later a Final Resolution levying special assessments; assessments were to be deferred until development occurred; notices and reports were mailed in 2003–2004; Final Resolution published June 30, 2004 and notices sent July 12, 2004; Emjay sold parcels in 2007 and faced escrow for assessments; Emjay filed a notice of appeal and complaint in 2008 seeking invalidation of the assessments; circuit court dismissed for failure to timeously appeal; court of appeals affirmed; this Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 90-day appeal period applies | Emjay argues § 66.0703(12)(a) does not apply | Germantown argues the 90-day period governs for all such appeals | 90-day period applies; § 893.72 not applicable |
| Whether the fraud exception in § 66.0703(12)(e) can save untimely appeal | Emjay contends fraud exceptions apply | Germantown asserts no fraud alleged in notice/complaint | Fraud exception not established; no timely appeal saved |
| Whether § 893.72 could provide an independent remedy | Emjay relies on § 893.72 as an alternative route | Defendant maintains § 893.72 not triggered when § 66.0703(12) applies | § 893.72 not applicable; exclusive remedy under § 66.0703(12) |
| Whether Emjay’s claims were properly treated as an appeal under § 66.0703(12) rather than a separate action | Emjay amalgamated notices and claims | Claims arise from the final assessment under § 66.0703(12) | Claims governed by § 66.0703(12); separate action not permissible |
Key Cases Cited
- Mayek v. Cloverleaf Lakes Sanitary Dist. No. 1, 238 Wis.2d 261 (Wis. 2000) (90-day appeal deadline starts from notice or final resolution publication)
- Gamroth v. Village of Jackson, 215 Wis.2d 251 (Wis. Ct. App. 1997) (strict adherence to 90-day appeal rule; forfeiture if late)
- Bialk v. City of Oak Creek, 98 Wis.2d 469 (Wis. Ct. App. 1980) (late notice forfeits appeal rights under §66.0703(12))
- Bornemann v. City of New Berlin, 27 Wis.2d 102 (Wis. 1965) (statutory framework; special cases permit different limitations)
- Harbours Pointe of Nashotah, LLC v. Village of Nashotah, 278 F.3d 701 (7th Cir. 2002) (consolidates §66.0703(12) as sole remedy for certain takings claims)
- Estate of Wolff v. Town Bd. of Town of Weston, 156 Wis.2d 588 (Wis. Ct. App. 1990) (due process notice sufficiency in special assessment)
- State ex rel. Robinson v. Town of Bristol, 2003 WI App 97 (Wis. Ct. App. 2003) (recognizes statutory placement of §66.0703 in the scheme)