¶ 1 This is a review of an unpublished per curiam decision of the court of appeals, Emjay Investment Co. v. Village of Germantown, No. 2009AP1714, unpublished slip op., 2010 WL 2598211 (Wis.Ct.App. June 30, 2010), that affirmed an order of the Washington County Circuit Court
¶ 2 Emjay does not dispute that it failed to comply with the 90-day period of appeal
¶ 3 We disagree with Emjay and therefore affirm the court of appeals' decision.
¶ 4 We conclude that Emjay's appeal and complaint challenging the special assessments levied by Germantown are governed by the 90-day period of appeal in Wis. Stat. § 66.0703(12)(a). We further conclude that Wis. Stat. § 893.72 is inapplicable in this case. It is undisputed that Emjay filed its notice of appeal and complaint years after the 90-day period of appeal had passed, and accordingly, the circuit court properly dismissed the action.
¶ 5 Mark and Donna Lohmann are the general partners of Emjay. Until 2007, Emjay owned two parcels of land on the corner of Appleton Avenue (State Highway 175) and County Line Road (County Highway Q) in Germantown. Emjay owned and operated Lohmann's Steak House on that corner for over 60 years.
¶ 6 In the late 1990s, Menard, Inc. (Menard) submitted a development plan to Germantown for a proposed retail development to be located at the intersection of Appleton Avenue and Maple Road. Menard and Germantown agreed that certain road improvements would need to be undertaken in order to accommodate the
¶ 7 On July 1, 2002, Germantown entered into a Development Agreement with Menard, in which Menard agreed to install and pay for the above-mentioned improvements. In return, Germantown agreed to reimburse Menard for a portion of the cost through special assessments levied against and collected from benefitted properties. The Development Agreement defined the benefitted properties as those abutting Appleton Avenue, or more specifically:
It is undisputed that Emjay's property was located within that geographical description (hereinafter the "Special Assessment District").
¶ 8 Menard commenced construction. The improvements were significantly completed by the end of 2003.
¶ 9 During that time, on July 7, 2003, Germantown adopted a Preliminary Resolution declaring its intent to exercise its police powers under Wis. Stat. §§ 66.0701 and 66.0703 and under § 8.04 of Germantown's Municipal Code to levy special assessments against the Special Assessment District for the relocation of Sanitary Sewer Lift Station No.3 and for the road improvements to Appleton Avenue. See Wis. Stat. § 66.0703(4). The Preliminary Resolution provided that "[t]he special assessments shall be deferred, with interest, until the benefitted property is conveyed or developed, whichever comes first."
¶ 10 On July 11, 2003, Germantown mailed notice of the Preliminary Resolution to all interested property owners, including Emjay.
¶ 11 On or about April 25, 2004, Germantown's Director of Public Works and Village Engineer filed with the Village Clerk a report on the proposed special assessments. See Wis. Stat. § 66.0703(4), (5). The report detailed the cost of the improvements, which totaled $3,144,313.44. See § 66.0703(5)(b). The report also included a Statement of Benefits, which provided that the Director of Public Works examined the relevant area and made a benefit determination for each parcel included within the Special Assessment District. See § 66.0703(5)(c), (d). Concerning the two parcels owned by Emjay, the report proposed a special assessment of $73,417.01 and $85,291.39, respectively. The Director of Public Works determined that "a benefit will accrue to each of the properties due to the improvement on the basis of providing improved safety through controlled traffic flow and turning movements and enhanced economical value to the property."
¶ 12 On April 28, 2004, Germantown published notice of a May 17, 2004, public hearing on the Preliminary Resolution and mailed notice of the public hearing to all interested property owners, including Emjay. See Wis. Stat. § 66.0703(7)(a).
¶ 13 Once Emjay received notice of the public hearing, Mark Lohmann telephoned Germantown's Village Hall. According to Mark Lohmann, a person at Village Hall informed him that the special assessment would not affect Emjay's property because the property was already commercially developed.
¶ 15 On June 21, 2004, Germantown adopted Resolution No. R21-04, the Final Resolution levying special assessments against the Special Assessment District for the relocation of Sanitary Sewer Lift Station No.3 and for the road improvements to Appleton Avenue. See Wis. Stat. § 66.0703(8)(c). The Final Resolution explicitly provided that the special assessments were made pursuant to Germantown's police power and pursuant to Wis. Stat. §§ 66.0701 and 66.0703 and § 8.04 of Germantown's Municipal Code. In addition, the Final Resolution expressed Germantown's determination that the properties located in the Special Assessment District "have received a special benefit" from the improvements and that the proposed special assessments have a reasonable basis.
¶ 16 Relevant to this case, the Final Resolution provided that pursuant to Wis. Stat. § 66.0715, the special assessments "shall be deferred, along with accrued interest. . . until the benefitted property is commercially developed or redeveloped." The special assessments were deferred for a period of up to 10 years:
The Final Resolution then stated that the special assessments, plus interest, collected from the benefitted properties will be paid to Menard, in accordance with the terms of the Development Agreement.
¶ 17 The Final Resolution was published on June 30, 2004. See Wis. Stat. § 66.0703(8)(d). On July 12, 2004, Germantown mailed notice of the Final Resolution to all interested property owners, including Emjay. See id. Emjay does not dispute that it received such notice.
¶ 18 In September 2007, Mark and Donna Lohmann retired, and Emjay sold its two parcels to a developer. Before the closing of the sale, Germantown sent Emjay two letters of special assessment, one for each parcel. Germantown claimed outstanding special assessments of $73,417.01 and $85,291.39, respectively, plus six percent interest, due and payable in full upon the sale of the property. In accordance with Germantown's claimed special assessments, the sale contract was amended, and Emjay was required to deposit $235,000 in escrow to cover the cost of the special assessments, subject to Emjay's right to contest the special assessments.
¶ 19 On May 30, 2008, Emjay filed a "Notice of Appeal Pursuant to Wis. Stat. Sec. 66.0703(12) and Complaint" against Germantown. The notice of appeal alleged that the special assessments were "defective"
¶ 20 Germantown moved the circuit court to dismiss Emjay's appeal and complaint, arguing that Emjay's claims are barred by the 90-day period of appeal set forth in Wis. Stat. § 66.0703(12)(a). Germantown maintained that Emjay's inclusion of other causes of action in the complaint does not save the claims from § 66.0703(12)(a), since the additional causes of action "[arise] out of and are based entirely on the alleged improper assessments. . . ."
¶ 21 On April 13, 2009, the circuit court granted Germantown's motion, dismissing Emjay's appeal and complaint on the grounds that Emjay failed to comply with the strictly enforced 90-day period of appeal in Wis. Stat. § 66.0703(12)(a).
¶ 22 Emjay appealed, and the court of appeals affirmed. Emjay, No. 2009AP1714. In an unpublished per curiam decision, the court of appeals agreed with the circuit court that Emjay's action
¶ 23 Emjay petitioned this court for review, which we granted on September 22, 2010. We now affirm.
¶ 24 A motion to dismiss based upon a failure to appeal within a statutorily mandated period functions as a motion for summary judgment. Whether the circuit court properly granted a motion for summary judgment is a question of law that we review de novo, applying the same standards used by the circuit and set forth in Wis. Stat. § 802.08 (2009-10). See Town Bank v. City Real Estate Dev., LLC, 2010 WI 134, ¶ 31, 330 Wis.2d 340, 793 N.W.2d 476; Tatera v. FMC Corp., 2010 WI 90, ¶ 15, 328 Wis.2d 320, 786 N.W.2d 810. Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." § 802.08(2) (2009-10).
¶ 25 A "special assessment," also known as an "assessment for benefits," is defined as "[t]he assessment of a tax on property that benefits in some important way from a public improvement." Black's Law Dictionary 112 (7th ed.1999); see also Park Ave. Plaza v. City of Mequon, 2008 WI App 39, ¶ 17, 308 Wis.2d 439, 747 N.W.2d 703 ("A special benefit has the effect of furnishing an uncommon advantage to a property. An uncommon advantage is one that differs in kind, rather than in degree, from the benefits enjoyed by the general public." (Internal citation omitted.)).
¶ 26 A municipality's power to levy special assessments against private property owners is statutory. Steinbach v. Green Lake Sanitary Dist., 2006 WI 63, ¶ 13, 291 Wis.2d 11, 715 N.W.2d 195. Pursuant to Wis. Stat. § 66.0701(1), the governing body of a village "may, by ordinance, provide that the cost of installing or constructing any public work or improvement shall be charged in whole or in part to the property benefited, and make an assessment against the property benefited in the manner that the governing body determines." Consistent with its authority under § 66.0701(1), Germantown enacted § 8.04 of its Municipal Code for purposes of levying special assessments. Section 8.04 is based upon Germantown's police powers. See Mowers v. City of St. Francis, 108 Wis.2d 630, 636, 323 N.W.2d 157 (Ct.App.1982).
¶ 27 In addition, pursuant to Wis. Stat. § 66.0703(1)(a), the governing body of any city, town or village may, by resolution, "levy and collect special assessments upon property in a limited and determinable area for special benefits conferred upon the property by any municipal work or improvement." Furthermore, § 66.0703(1)(a) permits the municipality to fund the cost of the work or improvement out of the proceeds of the special assessments.
¶ 28 Wisconsin Stat. § 66.0703(4)-(8) then outlines the procedure by which the municipality must exercise its power to levy special assessments, culminating in the adoption of a final resolution under subsection (8)(c)
¶ 29 Of significance to this case, Wis. Stat. § 66.0703(12) provides the exclusive procedure by which an aggrieved property owner may appeal from the municipality's adoption of a final resolution to levy special assessments under § 66.0703(8)(c). Section 66.0703(12)(a) states, in relevant part:
In other words, pursuant to § 66.0703(12)(a), a 90-day period of appeal commences once the municipality publishes its final resolution levying the special assessments or once the municipality mails notice of the final resolution to interested persons, whichever is later. See Mayek v. Cloverleaf Lakes Sanitary Dist. No. 1, 2000 WI App 182, ¶ 11 & n. 9, 238 Wis.2d 261, 617 N.W.2d 235. "The statute thus sets dates certain from which the time limit proceeds rather than a more ephemeral date such as when a property owner knows of the assessment." Id., ¶ 11.
¶ 30 An aggrieved property owner must strictly comply with the 90-day period of appeal in Wis. Stat. § 66.0703(12)(a); the failure to do so is a forfeiture of the right to appeal. See id., ¶ 13 ("A notice served more than ninety days after publication of the assessment is untimely, and a property owner's appeals rights are foreclosed."); Gamroth v. Vill. of Jackson, 215 Wis.2d 251, 259, 571 N.W.2d 917 (Ct.App. 1997); Bialk v. City of Oak Creek, 98 Wis.2d 469, 472, 297 N.W.2d 43 (Ct.App. 1980). "[T]he policy consideration behind this rule is to maintain a simple, ordinary and uniform way of conducting legal business in our courts. Uniformity, consistency and compliance with procedural rules are important aspects of the administration of justice. If the statutory prescriptions are to be meaningful, they must be unbending." Gamroth, 215 Wis.2d at 259, 571 N.W.2d 917 (internal quotations omitted).
¶ 31 The legislature has explicitly directed that an appeal under Wis. Stat. § 66.0703(12) is the "sole remedy" of a property owner aggrieved by a special assessment levied under § 66.0703:
§ 66.0703(12)(e); see also Harbours Pointe of Nashotah, LLC v. Vill. of Nashotah, 278 F.3d 701, 705 (7th Cir.2002) ("A clear reading of the statute . . . demonstrates that section 66.60(12)(a) [renumbered as Wis. Stat. § 66.0703(12)(a)] explicitly provides a claimant with the `sole remedy' for any complaint regarding a municipality's collection of assessments under section 66.60 [renumbered as § 66.0703]."). Section 66.0703(12)(e) lists only two types of appeals that are excepted from the 90-day
¶ 32 Turning to the facts of this case, Emjay does not dispute that it failed to comply with the 90-day period of appeal set forth in Wis. Stat. § 66.0703(12)(a). The 90-day period of appeal commenced on July 12, 2004, the date on which Germantown mailed notice of the Final Resolution to all interested property owners, including Emjay. See § 66.0703(12)(a); Mayek, 238 Wis.2d 261, ¶ 11 & n. 9, 617 N.W.2d 235. Emjay, however, did not file its notice of appeal and complaint until May 30, 2008, nearly four years after Germantown mailed notice of the Final Resolution. Indeed, Emjay's brief to this court acknowledges that "[t]he notice of special assessment was made, and the 90 Day Appeal Limitation had passed, years before Emjay filed suit in 2008." As made clear in Mayek, 238 Wis.2d 261, ¶ 13, 617 N.W.2d 235; Gamroth, 215 Wis.2d at 259, 571 N.W.2d 917; and Bialk, 98 Wis.2d at 472, 297 N.W.2d 43, an aggrieved property owner's failure to strictly comply with the 90-day period of appeal in § 66.0703(12)(a) requires dismissal of the appeal.
¶ 33 Emjay maintains, however, that its failure to comply with the 90-day period of appeal is not dispositive because Wis. Stat. § 66.0703(12)(a) does not apply in this case. In support of its position, Emjay advances several arguments, the most notable of which include: (1) Section 66.0703(12)(a) does not to apply to contingent special assessments like those levied in this case; (2) Section 66.0703(12)(a) does not apply because Germantown levied the special assessments after construction of the improvements was completed; and (3) the special assessments are fraudulent, evident by Germantown's "procedural failure" and neglect "to actually endeavor what [§ 66.0703] charges it to do." According to Emjay, these alleged deficiencies evince Germantown's lack of authority to levy the special assessments in the first instance. Citing Germantown's alleged lack of power, Emjay urges us to apply Wis. Stat. § 893.72
¶ 34 Emjay's arguments miss the mark. Whether the special assessments were defective or even whether Germantown had the power to levy the special assessments do not bear on the preliminary issue of whether the 90-day period of appeal in Wis. Stat. § 66.0703(12)(a) applies in this case. The issue of whether § 66.0703(12)(a) applies entails a much more straight-forward analysis.
¶ 35 We conclude that Emjay's appeal and complaint are governed by the 90-day period of appeal set forth in Wis. Stat. § 66.0703(12)(a). 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.
¶ 37 Both the Preliminary Resolution and the Final Resolution expressly provided that the special assessments were being levied pursuant to Germantown's authority under Wis. Stat. §§ 66.0701 and 66.0703 and § 8.04 of its Municipal Code. Section 8.04(4) of Germantown's Municipal Code expressly incorporates the provisions of Wis. Stat. § 66.0703,
¶ 38 Furthermore, neither the Preliminary Resolution nor the Final Resolution mentions Wis. Stat. § 893.72. While this court has recognized an apparent conflict between Wis. Stat. § 66.0703(12) and the more general right to file a civil action under Wis. Stat. § 893.72 to contest a special assessment, see Bornemann v. City of New Berlin, 27 Wis.2d 102, 111, 133 N.W.2d 328 (1965), the latter is simply not implicated in this case. Germantown explicitly levied the special assessments under Wis. Stat. § 66.0703. See State ex rel. Robinson v. Town of Bristol, 2003 WI App 97, ¶¶ 13-14, 264 Wis.2d 318, 667 N.W.2d 14. An appeal under Wis. Stat. § 66.0703(12)(a) and (e) is limited to special assessments levied by municipalities under Wis. Stat. § 66.0703. Wisconsin Stat. § 893.72, on the other hand, applies to all special assessments generally. See Bornemann, 27 Wis.2d at 111, 133 N.W.2d 328. "One of the well-recognized canons of statutory construction is that, in event of a conflict between a general and a specific statute, the latter controls." Id. Indeed, Wis. Stat. § 893.01 expressly recognizes that civil actions under chapter 893 "may be commenced only within the periods prescribed in this chapter, except when, in special cases, a different limitation is provided by statute." (Emphasis added.) Wisconsin Stat. § 66.0703(12)(a) provides a different period of appeal.
¶ 39 Accordingly, whether Emjay classifies its challenge to the special assessments as a notice of appeal under Wis. Stat. § 66.0703(12) or as a complaint comprised
¶ 40 Wisconsin Stat. § 66.0703(12)(e) lists only two types of appeals that are excepted from the 90-day period of appeal in subsection (12)(a): "appeals based [1] on fraud or [2] on latent defects in the construction of the improvement discovered after the period of limitation." Emjay concedes that its appeal is not based on any "latent defects in the construction of the improvement." See § 66.0703(12)(e). Instead, Emjay argues that the 90-day period of appeal in § 66.0703(12)(a) does not apply in this case because the special assessments are fraudulent.
¶ 41 It is true that an appeal based on fraud is expressly excluded from the 90-day period of appeal. Wis. Stat. § 66.0703(12)(e). However, neither Emjay's notice of appeal nor complaint alleges fraud or otherwise conveys an intent to mislead on the part of Germantown. When pressed at oral argument, Emjay advised the court that the special assessments are fraudulent because of Germantown's "procedural failure" and its neglect "to actually endeavor what [§ 66.0703] charges it to do." However, absent an intent to mislead, such procedural deficiencies, assuming they exist, do not constitute fraud. Rather, procedural deficiencies are precisely the type of allegations that "shall" be raised in an appeal under § 66.0703(12). See § 66.0703(12)(e) (providing that an appeal under § 66.0703(12) "shall raise any question of law or fact, stated in the notice of appeal, involving the making of the improvement, the assessment of benefits or the award of damages or the levy of any special assessment").
¶ 42 We conclude that Emjay's appeal and complaint challenging the special assessments levied by Germantown are governed by the 90-day period of appeal in Wis. Stat. § 66.0703(12)(a). We further conclude that Wis. Stat. § 893.72 is inapplicable in this case. It is undisputed that Emjay filed its notice of appeal and complaint years after the 90-day period of appeal had passed, and accordingly, the circuit court properly dismissed the action.
The decision of the court of appeals is affirmed.
Wisconsin Stat. §§ 66.0701 and 66.0703 were preceded by Wis. Stat. §§ 66.62 and 66.60 (1997-98), respectively. See 1999 Wis. Act 150, §§ 532, 544; Steinbach v. Green Lake Sanitary Dist., 2006 WI 63, ¶ 14, 291 Wis.2d 11, 715 N.W.2d 195. The statutes were recodified as a result of the legislature's effort to reorganize and modernize Wis. Stat. ch. 66. See 1999 Wis. Act 150, prefatory note. Wisconsin Stat. §§ 66.0701 and 66.0703 are substantively identical to their predecessor statutes.
(Emphasis added.)
