Business owners missed appeals window, stuck with bill for special
Business owners snagged by 90-day limitations period must pay nearly
$160,000 in special assessment fees, plus interest, to the Village of
Germantown for Menard, Inc. development.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
2011 – The Wisconsin statute that gives municipalities power to
make special assessments against property owners bars the appeal of
business owners who must now pay nearly $160,000 to the Village of
Germantown, the Wisconsin Supreme Court recently concluded.
In the late 1990s, Menard sought approval of a retail development plan
in the Village of Germantown (Germantown). Germantown and Menard agreed
that road improvements were necessary, among others, and relocation of a
sewer lift station was also necessary.
Menard agreed to pay, with an understanding that Germantown would
reimburse a portion of the cost through special assessments against
property owners who benefitted from the improvements. Emjay Investment
Co. (Emjay) owned a restaurant located in the “special assessment
The Menard development was completed at the end of 2003. In July of
that year, Germantown adopted a preliminary resolution to exercise a
power, under Wis. Stat. sections 66.0701 and 66.0703, to levy special
assessments against property owners in the special assessment
Germantown sent notice to Emjay, which owned two parcels, and other
property owners in the special assessment district. A public hearing was
held. Allegedly, an Emjay partner called the Village Hall to ask about
the assessment, but was told it would not affect Emjay’s
commercially developed property.
In June 2004, Germantown adopted the resolution. The Director of Public
Works made a benefit determination proposing a special assessment of
nearly $160,000 for Emjay’s two properties. The final resolution
was published on June 30, 2004. Twelve days later, Germantown mailed
notice to Emjay.
In September 2007, Emjay sold the two parcels. Before closing,
Germantown claimed the assessment amount, plus 6 percent interest, was
due upon sale. Emjay was required to put $235,000 in escrow in order to
close on the sale.
In May 2008, nearly four years after the final resolution was issued,
Emjay filed a notice of appeal pursuant to section 66.0703(12) to
challenge the assessments. However, the circuit court dismissed the case
after Germantown argued section 66.0703(12)(a) bars appeals filed 90
days after publication of a resolution. The appeals court affirmed.
Investment Co. v. Village of Germantown, 2011 WI 31 (May 17,
2011), the Wisconsin Supreme Court unanimously affirmed, rejecting
Emjay’s argument that the special assessments were defective in a
number of ways, primarily that they exceeded the value of the benefits
accruing to the property.
The supreme court – in an opinion written by Justice Annette
Ziegler – clarified that section 66.0703(12) is “the
exclusive procedure by which an aggrieved property owner may appeal from
the municipality’s adoption of a final resolution to levy special
Once Emjay received notice of the final resolution, it had 90 days to
appeal, and this appeals process was the “sole remedy” for
challenging the assessments issued, the court explained. The two
exceptions – appeals asserting fraud or latent defects in
construction – were not applicable, the court concluded.
The supreme court also rejected Emjay’s argument that section
66.0703(12)(a) does not apply to contingent special assessments or the
assessments are levied after construction of the improvements are
“Had Emjay filed its notice of appeal and complaint within the
90-day period of appeal, the circuit court would have been able to
address the merits of Emjay’s arguments – including whether
the special assessments were defective or whether Germantown had the
power to levy the special assessments in the first instance,”
Justice Ziegler wrote.