Under sub. (15) [now sub. (13)] the assessment lien is effective from the date of the determination of the assessment, not from the date of the publication of the resolution. Dittner v. Town of Spencer, 55 Wis. 2d 707
, 201 N.W.2d 450
A presumption arises that an assessment was made on the basis of benefits actually accrued. In levying a special assessment for benefits to residential property from a public improvement, the benefit to the property as commercial property may be considered only if the assessing authority can prove there is a reasonable probability of rezoning the property in the near future. Molbreak v. Village of Shorewood Hills, 66 Wis. 2d 687
, 225 N.W.2d 894
The plaintiff's failure to comply strictly with the express terms of sub. (12) (a) and (f) deprived the court of subject matter jurisdiction. Bialk v. City of Oak Creek, 98 Wis. 2d 469
, 297 N.W.2d 43
(Ct. App. 1980).
“Special benefits" under sub. (1) (a) is defined as an uncommon advantage accruing to the property owner in addition to the benefit enjoyed by other property owners. Goodger v. City of Delavan, 134 Wis. 2d 348
, 396 N.W.2d 778
(Ct. App. 1986).
Confirmation under sub. (10) permits interest to be collected from the date of the original assessment. Gelhaus & Brost v. City of Medford, 143 Wis. 2d 193
, 420 N.W.2d 775
(Ct. App. 1988).
Sub. (12) (d) does not permit a trial court to correct an assessment that was annulled due to lack of evidence. Because sub. (12) (d) evinces an intent that the municipality will reassess, a trial court may modify an assessment only if there is an adequate record of evidence to make the determination. VTAE District 4 v. Town of Burke, 151 Wis. 2d 392
, 444 N.W.2d 733
(Ct. App. 1989).
Property specially assessed under the police power must be benefitted to some extent, and the method of assessment must be reasonable, not arbitrarily or capriciously burdening any group of property owners. CTI Group v. Village of Germantown, 163 Wis. 2d 426
, 471 N.W.2d 610
(Ct. App. 1991).
Imposition of interest on an assessment from the date of enactment of an ordinance is unreasonable. Village of Egg Harbor v. Sarkis, 166 Wis. 2d 5
, 479 N.W.2d 536
(Ct. App. 1991).
A police power special assessment must benefit the property and be made on a reasonable basis. The degree, effect, and consequences of the benefit must be examined to measure reasonableness. Mere uniformity of treatment does not establish reasonableness; rather uniqueness of a property may be the cause for the assessment being unreasonable. Lac La Belle Golf Club v. Lac La Belle, 187 Wis. 2d 274
, 522 N.W.2d 277
(Ct. App. 1994).
Sub. (12) (a), when read with s. 895.346, allows a cash deposit in lieu of a bond. Aiello v. Village of Pleasant Prairie, 206 Wis. 2d 68
, 556 N.W.2d 67
An assessment that cannot be legally made cannot be validated by reassessment under sub. (10). An assessment that is invalid by reason of a defect or omission, even if material, may be cured by reassessment. Reassessment is not limited to situations when construction has not yet commenced, and may be made after the project is completed. Dittberner v. Windsor Sanitary District, 209 Wis. 2d 478
, 564 N.W.2d 341
(Ct. App. 1997), 98-0877
Appeals brought under sub. (12) (a) are exempt from the notice provisions of s. 893.80 (1). Gamroth v. Village of Jackson, 215 Wis. 2d 251
, 571 N.W.2d 917
(Ct. App. 1997), 96-3396
An appellant's filing under sub. (12) (a) of a notice of appeal and bond with the municipal clerk within the 90-day limit, but not in the circuit court, was a reasonable interpretation of the statute and did not result in the appeal being untimely. Outagamie County v. Town of Greenville, 2000 WI App 65
, 233 Wis. 2d 566
, 608 N.W.2d 414
The filing of an appeal prior to publication of the final resolution required by sub. (8) (d) was not premature under sub. (12) (a). Section 808.04 (8), which provides that a notice of appeal filed prior to the entry of the order appealed from shall be treated as filed after the entry, is applicable to appeals under this section as the result of the application of s. 801.01 (2), which makes chs. 801 to 847 applicable in all special proceedings. Mayek v. Cloverleaf Lakes Sanitary District #1, 2000 WI App 182
, 238 Wis. 2d 261
, 617 N.W.2d 235
Section 60.77 authorizes town sanitary districts to levy special assessments and makes the procedures under this section applicable to those districts. As such, service of a notice of appeal on the district clerk was proper under this section. Mayek v. Cloverleaf Lakes Sanitary District #1, 2000 WI App 182
, 238 Wis. 2d 261
, 617 N.W.2d 235
Legal expenses associated with an appeal of a special assessment may not be added to the assessment under sub. (5). Such legal expenses are not reasonably attributed to the work or improvement as they do not aid in its creation or development. Bender v. Town of Kronenwetter, 2002 WI App 284
, 258 Wis. 2d 321
, 654 N.W.2d 57
Because special assessments can only be levied for local improvements, before the propriety of the assessment can be addressed the circuit court must initially examine whether the improvement is local. The purpose for making the improvements is relevant to resolving the nature of the improvement, but not determinative because the court must also consider the benefits the property receives. The purpose for initiating improvements must be for reasons of accommodation and convenience, and the object of the purpose must be primarily for the people in a particular locality. Genrich v. City of Rice Lake, 2003 WI App 255
, 268 Wis. 2d 233
, 673 N.W.2d 361
Uniformity requires the assessment to be fairly and equitably apportioned among property owners in comparable positions. The municipality must use a method of assessment that produces a uniform and equal value for all affected properties. It is unreasonable to use the same method to assess a group of property owners when it results in an entirely disproportionate result that could easily be remedied by using a different method or to assess one group of property owners by a different method from that used to assess others if the results are entirely disproportionate. There is no per se reasonable method. Genrich v. City of Rice Lake, 2003 WI App 255
, 268 Wis. 2d 233
, 673 N.W.2d 361
An availability charge assessed against each condominium unit served by a sewer extension through a single connection from the condominium lot to the sewer was not levied uniformly and imposed an inequitable cost burden as compared with the benefit accruing to the petitioners and to all benefited properties. The availability charge lacked a reasonable basis because: 1) there was no nexus between the availability charge and the district's recovery of the capital cost to it to provide sanitary sewer service to individual lots; 2) other lots with multiple habitable units and were provided the same sewer service through one stub were assessed only one availability charge; and 3) there was no showing that the condominium owners received a greater benefit than was provided to other lots that were affected by the sewer extension. Steinbach v. Green Lake Sanitary District, 2006 WI 63
, 291 Wis. 2d 11
, 715 N.W.2d 195
Absent an intent to mislead, procedural deficiencies, assuming they exist, do not constitute fraud, which is expressly excluded from the 90-day period of appeal under sub. (12) (e). Rather, procedural deficiencies are precisely the type of allegations that shall be raised in an appeal under sub. (12). Emjay Investment Company v. Village of Germantown, 2011 WI 31
, 333 Wis. 2d 252
, 797 N.W.2d 844
Special assessments can only be levied for local improvements. If the improvement's primary purpose and effect are to benefit the public, it is not a local improvement. While general improvements grant substantially equal benefits and advantages to the property of the whole community or otherwise benefit the public at large, local improvements confer “special benefits" on property in a particular area. A special benefit has the effect of furnishing an “uncommon advantage" that either increases the services provided to the property or enhances its value. An uncommon advantage is a benefit that differs in kind rather than in degree from those benefits enjoyed by the general public. Hildebrand v. Town of Menasha, 2011 WI App 83
, 334 Wis. 2d 259
, 800 N.W.2d 502
Under s. 801.01 (2), chs. 801 to 847 “govern procedure and practice in circuit courts of this state in all civil actions and special proceedings . . . except where different procedure is prescribed by statute or rule." Special assessment appeals under this section are special proceedings. Nothing in this section conflicts with Wisconsin's notice pleading rules under s. 802.02 and there is no reason why the principles of notice pleading should not apply to appeals of special assessments. CED Properties LLC v. City of Oshkosh, 2014 WI 10
, 352 Wis. 2d 613
, 843 N.W.2d 382
Special benefits means an “uncommon advantage" and has the same meaning under both sub. (1) (a) and s. 32.09 (3), the eminent domain statute. Under s. 32.09 (3), only those special benefits that affect the market value of a property because of a planned improvement are considered and used to offset the value of the property taken. In contrast, sub. (1) allows a municipality to levy and collect a special assessment upon property for special benefits conferred on the property by an improvement, regardless of the improvement's effect on the property's market value. Because of this distinction, a municipality's failure to raise the issue of special benefits in an eminent domain action does not foreclose the municipality's ability to levy and collect a special assessment upon a property for special benefits conferred. CED Properties, LLC v. City of Oshkosh, 2018 WI 24
, 380 Wis. 2d 399
, 909 N.W.2d 136
, 66 Wis. 2d 687
, held that “in the absence of evidence to the contrary there is a conclusive presumption that the assessment was on the basis of benefits actually accrued." That presumption of correctness exists only in the absence of evidence to the contrary. CED Properties, LLC v. City of Oshkosh, 2018 WI 24
, 380 Wis. 2d 399
, 909 N.W.2d 136
State property is not subject to assessment of special charges. 69 Atty. Gen. 269.
Landowners who were not treated in a discriminatory manner and did not avail themselves of the statutory right to appeal the merits of an assessment against land based on a report under sub. (2) [now sub. (4)] were not deprived of due process or equal protection and could not maintain an action under the civil rights act for damages. Kasper v. Larson, 372 F. Supp. 881
Wisconsin special assessments. Klitzke and Edgar. 62 MLR 171 (1978).
Property of public and private entities subject to special assessments. 66.0705(1)(a)
The property of this state, except that held for highway right-of-way purposes or acquired and held for purposes under s. 85.08
, and the property of every county, city, village, town, school district, sewerage district or commission, sanitary or water district or commission, or any public board or commission within this state, and of every corporation, company, or individual operating any railroad, telegraph, telecommunications, electric light, or power system, or doing any of the business mentioned in ch. 76
, and of every other corporation or company is in all respects subject to all special assessments for local improvements.
Certificates and improvement bonds for special assessments may be issued and the lien of the special assessments enforced against property described in par. (a)
, except property of the state, in the same manner and to the same extent as the property of individuals. Special assessments on property described in par. (a)
may not extend to the right, easement or franchise to operate or maintain railroads, telegraph, telecommunications or electric light or power systems in streets, alleys, parks or highways. The amount represented by any certificate or improvement bond issued under this paragraph is a debt due personally from the corporation, company or individual, payable in the case of a certificate when the taxes for the year of its issue are payable, and in the case of a bond according to the terms of the bond.
In this subsection, “assessment" means a special assessment on property of this state and “project" means any continuous improvement within overall project limits regardless of whether small exterior segments are left unimproved. If the assessment of a project is less than $50,000, or if the assessment of a project is $50,000 or more and the building commission approves the assessment under s. 66.0703 (6)
, the state agency which manages the property shall pay the assessment from the revenue source which supports the general operating costs of the agency or program against which the assessment is made.
Assessment or special charge against property in adjacent city, village or town. 66.0707(1)(1)
A city, village or town may levy special assessments for municipal work or improvement under s. 66.0703
on property in an adjacent city, village or town, if the property abuts and benefits from the work or improvement and if the governing body of the municipality where the property is located by resolution approves the levy by resolution. The owner of the property is entitled to the use of the work or improvement on which the assessment is based on the same conditions as the owner of property within the city, village or town.
A city, village or town may impose a special charge under s. 66.0627
against real property in an adjacent city, village or town that is served by current services rendered by the municipality imposing the special charge if the municipality in which the property is located approves the imposition by resolution. The owner of the property is entitled to the use and enjoyment of the service for which the special charge is imposed on the same conditions as the owner of property within the city, village or town.
A special assessment or special charge under this section is a lien against the benefited property and shall be collected by the treasurer in the same manner as the taxes of the municipality and paid over by the treasurer to the treasurer of the municipality levying the assessment.
History: 1991 a. 316
; 1999 a. 150
; Stats. 1999 s. 66.0707.
Preliminary payment of improvements funded by special assessments. 66.0709(2)
If it is determined that the cost of a public improvement is to be paid, in whole or in part, by special assessments against the property to be benefited by the improvement, the resolution authorizing the public improvement shall provide that the whole, or any stated proportion, or no part of the estimated aggregate cost of the public improvement, which is to be levied as special assessments, shall be paid into the treasury of the local governmental unit in cash. The public improvement may not be commenced nor any contract for the improvement let until the payment required by the resolution is paid into the treasury of the local governmental unit by the owner or persons having an interest in the property to be benefited. The payment shall be credited against the amount of the special assessments levied or to be levied against benefited property designated by the payer. If a preliminary payment is required by the resolution, the refusal of one or more owners or persons having an interest in the property to be benefited to pay any preliminary payments does not prevent the making of the improvement if the entire specified sum is obtained from the remaining owners or interested parties.
History: 1999 a. 150
Discount on cash payments for public improvements. 66.0711(2)
Every bid received for any public improvement which is not to be paid wholly in cash shall contain a provision that all payments made in cash by the local governmental unit as provided by contract or made on special assessments are subject to a specified rate of discount. The treasurer of the local governmental unit shall issue a receipt for every payment made on any special assessment, stating the date and amount of the cash payment, the discount and the total credit including the discount on a specified special assessment. The treasurer shall on the same day deliver a duplicate of the receipt to the clerk, who shall credit the specified assessments accordingly. All moneys so received shall be paid to the contractor as provided by the contract.
History: 1999 a. 150
Contractor's certificates; general obligation-local improvement bonds; special assessment B bonds. 66.0713(1)(1)
In this section, unless a different meaning clearly appears from the context:
“Contractor" means the person, firm or corporation performing the work or furnishing the materials, or both, for a public improvement.
“Debt service fund" means the fund, however derived, set aside for the payment of principal and interest on contractor's certificates or bonds issued under this section.
“Governing body" means the body or board vested by statute with the power to levy special assessments for public improvements.
“Local governmental unit" means county, city, village, town, farm drainage board, sanitary districts, utility districts, public inland lake protection and rehabilitation districts, and all other public boards, commissions or districts, except 1st class cities, authorized by law to levy special assessments for public improvements against the property benefited by the special improvements.
“Public improvement" means the result of the performance of work or the furnishing of materials or both, for which special assessments are authorized to be levied against the property benefited by the work or materials.
Payment by contractor's certificate. 66.0713(2)(a)
If a public improvement has been made and has been accepted by the governing body of the local governmental unit, it may issue to the contractor for the public improvement a contractor's certificate as to each parcel of land against which special assessments have been levied for the unpaid balance of the amount chargeable to the parcel, describing each parcel. The certificate shall be substantially in the following form:
$.... No. ....
(name of local governmental unit)
For construction of ....
(name of local governmental unit)
Issued pursuant to
We, the undersigned officers of the (name of local governmental unit), certify that (name and address of contractor) has performed the work of constructing .... in .... benefiting the following premises: (insert legal description) in the (name of local governmental unit) .... County, Wisconsin, pursuant to a contract entered into by (name of local governmental unit) with .... (name of contractor), dated ...., and that .... entitled to the sum of .... dollars, the unpaid balance due for the work chargeable to the property described above.
If the unpaid balance due is not paid to the treasurer of (name of local governmental unit) before the first day of the following December, that amount shall be extended upon the tax roll of the (name of local governmental unit) against the property above described as listed in the tax roll, and collected as provided by law.
This certificate is transferable by endorsement but an assignment or transfer by endorsement is invalid unless recorded in the office of the clerk of the (name of local governmental unit) and the fact of the recording is endorsed on this certificate. The holder of this certificate has no claim upon the (Name of local governmental unit), except from the proceeds of the special assessments levied for the work against the above described land.
This certificate shall bear interest from its date to the following January 1.
Given under our hands at (name of local governmental unit), this .... day of ...., .... (year)
(Mayor, President, Chairperson)
Clerk, (name of local governmental unit)
Assigned by .... .... (Original Contractor) to .... .... (Name of Assignee) of .... (Address of Assignee) .... .... (Date and signature of clerk)
A contractor's certificate is not a liability of a local governmental unit and shall so state in boldface type printed on the face of the certificate. Upon issuance of a certificate, the clerk of the local governmental unit shall immediately deliver to the treasurer of the local governmental unit a schedule of each certificate showing the date, amount, number, date of maturity, person to whom issued and parcel of land against which the assessment is made. The treasurer shall notify, by mail, the owner of the parcel, as the owner appears on the last assessment roll, that payment is due on the certificate at the office of the treasurer, and if the owner pays the amount due, the clerk shall pay that amount to the registered holder of the certificate, and shall endorse the payment on the face of the certificate and on the clerk's record of the certificate. The clerk shall keep a record of the names of the persons, firms or corporations to whom contractor's certificates are issued and of the assignees of certificates when the assignment is known to the clerk. Assignments of contractor's certificates are invalid unless recorded in the office of the clerk of the local governmental unit and the fact of recording is endorsed on the certificate. Upon final payment of the certificate, the certificate shall be delivered to the treasurer of the local governmental unit and by the treasurer delivered to the clerk. On the first of each month, to and including December 1, the treasurer shall certify to the clerk a detailed statement of all payments made on certificates.
If a contractor's certificate is not paid before December 1 in the year in which issued, the comptroller or clerk of the local governmental unit shall include in the statement of special assessments to be placed in the next tax roll an amount sufficient to pay the certificate, with interest from the date of the certificate to the following January 1, and the proceedings for the collection of that amount shall be the same as the proceedings for the collection of general property taxes, except as otherwise provided in this section. The delinquent taxes shall be returned to the county treasurer in trust for collection and not for credit. All moneys collected by the treasurer of the local governmental unit or by the county treasurer and remitted to the treasurer of the local governmental unit on account of the special assessments shall be delivered to the owner of the contractor's certificate on demand.
General obligation-local improvement bonds.
For the purpose of anticipating the collection of special assessments payable in installments as provided in s. 66.0715 (3)
and after the installments have been determined, the governing body may issue general obligation-local improvement bonds under s. 67.16
For the purpose of anticipating the collection of special assessments payable in installments, as provided in s. 66.0715 (3)
and after the installments have been determined, the governing body may issue special assessment B bonds payable out of the proceeds of the special assessments as provided in this section. The bonds are not a general liability of the local governmental unit.
The issue of special assessment B bonds shall be in an amount not exceeding the aggregate unpaid special assessments levied for the public improvement that the issue is to finance. A separate bond shall be issued for each separate assessment and the bond shall be secured by and be payable out of only the assessment against which it is issued. The bonds shall mature in the same number of installments as the underlying special assessments. The bonds shall carry coupons equal in number to the number of special assessments. The coupons shall be detachable and entitle the owner of the bond to the payment of principal and interest collected on the underlying special assessments. The bond shall be executed as provided in s. 67.08 (1)
and may be registered under s. 67.09
. Each bond shall include a statement that it is payable only out of the special assessment on the particular property against which it is issued and the purpose for which the assessment was levied and other provisions that the governing body inserts.
Payments of principal and interest shall conform as nearly as possible to the payments to be made on the installments of the assessment, and the principal and interest to be paid on the bonds shall not exceed the principal and interest to be received on the assessment. All collections of installments of the special assessments levied to pay for the public improvement, either before or after delinquency, shall be placed by the treasurer of the local governmental unit in a special debt service fund designated and identified for the bond issue and shall be used only for the payment of the bonds and interest of the issue. Any surplus in the debt service fund after all bonds and interest are fully paid shall be paid into the general fund.
Special assessment B bonds shall be registered in the name of the owner on the records of the clerk of the local governmental unit that issued the bonds. Upon transfer of the ownership of the bonds the transfer shall be noted upon the bond and on the record of the clerk of the local governmental unit. Any transfer not so recorded is void and the clerk of the local governmental unit may make payments of principal and interest to the owner of the bond as registered on the books of the local governmental unit.
Principal and interest collected on the underlying special assessments and interest collected on the delinquent special assessments and on delinquent tax certificates issued for the delinquent assessments shall be paid by the treasurer of the local governmental unit out of the debt service fund created for the issue of the bonds to the registered holder of the bonds upon the presentation and surrender of the coupons due attached to the bonds. If any installment of the special assessment entered in the tax roll is not paid to the treasurer of the local governmental unit with the other taxes, it shall be returned to the county treasurer as delinquent in trust for collection.