Emjay Inv. Co. v. Village of Germantown
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Plaintiff filed an appeal and complaint against defendant where defendant claimed outstanding special assessments that were due and payable in full upon the sale of plaintiff's property. At issue was whether Wis. Stat. 66.0703(12)(a)'s 90-day appeal period applied where the special assessments were contingent, were levied after construction of the improvements were completed, or in the alternative, were fraudulent. Also at issue was whether Wis. Stat. 893.72 permitted plaintiff's appeal irrespective of the 90-day period of appeal in section 66.0703(12)(a). The court held that the circuit court properly dismissed the action where plaintiff's appeal and complaint were governed by the 90-day period in section 66.0703(12)(a) and that section 893.72 was inapplicable to the case and where it was undisputed that plaintiff filed its notice of appeal and complaint years after the 90-day period had passed.
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2011 WI 31 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP1714 Emjay Investment Company, Plaintiff-Appellant-Petitioner, v. Village of Germantown, Defendant-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 327 Wis. 2d 799, 788 N.W. 2d 384 (Ct. App. 2010 Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: May 17, 2011 February 2, 2011 CIRCUIT COURT WASHINGTON DAVID G. RESCHKE JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiff-appellant-petitioner there were briefs and oral argument by Matthew R. Jelenchick, Niebler, Pyzyk, Roth & Carrig LLP For the defendant-respondent there was a brief and oral argument by Amy J. Doyle, Crivello Carlson, S.C. 2011 WI 31 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP1714 (L.C. No. 2008CV598) STATE OF WISCONSIN : IN SUPREME COURT Emjay Investment Company, FILED Plaintiff-Appellant-Petitioner, MAY 17, 2011 v. A. John Voelker Acting Clerk of Supreme Court Village of Germantown, Defendant-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 ANNETTE KINGSLAND ZIEGLER, J. Affirmed. This is a review of an unpublished per curiam decision of the court of appeals, Emjay Investment Co. unpublished affirmed an slip v. Village op. order of (Wis. the of Ct. Germantown, App. Washington June No. 30, County 2009AP1714, 2010), Circuit that Court1 granting the Village of Germantown's motion to dismiss Emjay Investment Company's appeal of special assessments levied under Wis. Stat. §§ 66.0701 and 66.0703 (2003-04).2 1 2 The circuit court The Honorable David C. Resheske presided. All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated. No. 2009AP1714 dismissed the appeal because Emjay Investment Company (Emjay) failed to appeal within 90 days after the date on which the Village of Germantown (Germantown) published its final resolution levying the special assessments or mailed notice of its final resolution to interested persons. § 66.0703(12)(a), of (e). The court See appeals Wis. Stat. affirmed. We granted Emjay's petition for review. ¶2 the Emjay does not dispute that it failed to comply with 90-day period § 66.0703(12)(a). of appeal3 set forth in Wis. Stat. Instead, Emjay argues that § 66.0703(12)(a) does not apply in this case because (1) the special assessments were contingent; (2) the special assessments were levied after construction of the improvements was completed; alternatively, (3) the special assessments were fraudulent. or, In any case, Emjay argues that its appeal can proceed under Wis. Stat. § 893.72, irrespective of the 90-day period of appeal in Wis. Stat. § 66.0703(12)(a). 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. 3 The 90-day period of appeal under Wis. Stat. § 66.0703(12)(a) has also been referred to as a 90-day period of limitations, see, e.g., Mayek v. Cloverleaf Lakes Sanitary Dist. No. 1, 2000 WI App 182, ¶13, 238 Wis. 2d 261, 617 N.W.2d 235, and a 90-day statute of limitations, see, e.g., Bornemann v. City of New Berlin, 27 Wis. 2d 102, 106, 109-10, 133 N.W.2d 328 (1965). 2 No. ¶3 2009AP1714 We disagree with Emjay and therefore affirm the court of appeals' decision. ¶4 We conclude challenging governed the by that special the 90-day § 66.0703(12)(a). Emjay's assessments period appeal levied of and by complaint Germantown appeal in Wis. are Stat. 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. I. FACTUAL BACKGROUND ¶5 Emjay. Mark and Donna Lohmann are the general partners of 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 large retail development. Specifically, Appleton Avenue would need to be widened, and a sewer lift station situated in the proposed expansion area would need to be relocated. In addition, the intersection of Appleton Avenue and Maple Road would need to be reconstructed, traffic signals and turn lanes. 3 including installation of No. ¶7 2009AP1714 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. properties The Development Agreement defined the benefitted as those abutting Appleton Avenue, or more specifically: Owners or purchasers of benefitted properties abutting STH 175, including without limitation, owner or purchasers of properties located on the south side of STH 175 running from CTH Q to the gas pipeline north of the Maple/STH 175 intersection and owners or purchasers of properties located on the north side of STH 175 running from the [Menard] Property to the gas pipeline north of the Maple/STH 175 intersection. 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 assessments Germantown's against the Municipal Special Code to Assessment levy District special for the relocation of Sanitary Sewer Lift Station No.3 and for the road improvements to Appleton Avenue. The Preliminary Resolution See Wis. Stat. § 66.0703(4). provided 4 that "[t]he special No. assessments shall be deferred, with interest, 2009AP1714 until the benefitted property is conveyed or developed, whichever comes first." ¶10 On Preliminary July 11, 2003, Resolution to Germantown all mailed interested notice property of the 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 § 66.0703(4), proposed (5). special The assessments. report detailed improvements, which totaled $3,144,313.44. See the Wis. Stat. cost of the 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). 5 No. ¶13 2009AP1714 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. ¶14 As noticed, Germantown conducted a public hearing on the Preliminary Resolution on May 17, 2004. ¶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 Appleton Avenue. No.3 and for the road improvements See Wis. Stat. § 66.0703(8)(c). to The Final Resolution explicitly provided that the special assessments were made pursuant to Germantown's police power and pursuant to Wis. Stat. §§ 66.0701 Municipal Code. and 66.0703 and § 8.04 of Germantown's 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: 6 No. 2009AP1714 If a benefitted property, or a portion thereof, is commercially developed or redeveloped, within ten (10) years, as measured from the date of execution of the Developer Agreement on July 1, 2002, to the date on which the Village [of Germantown] shall grant final approval of a site plan for the commercial development or redevelopment of the benefitted property, the principal balance of the special assessments, plus accrued interest as provided for herein, shall immediately become due and payable in full to the Village of Germantown. 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. of the sale, Germantown sent Emjay assessment, one for each parcel. two Before the closing letters of special 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. 7 No. 2009AP1714 II. PROCEDURAL POSTURE ¶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"4 and requested a judgment annulling 4 Emjay's "Notice of Appeal" alleged that the assessments were defective for the following reasons: special a. The special assessments levied on the property exceed the value of the benefits accruing to the property. b. The special assessments reasonable basis. c. The area of the special assessments is not limited or determined by the special benefits conferred. d. The Village [of Germantown] does not have jurisdiction to specially assess the property since the property is not adjacent to or abutting the improvements. e. The special assessments, or any installations thereof, were never entered upon the tax rolls of the Village [of Germantown]. f. Accrued interest on the special assessments is not related to any bond, note or other financing expense, and therefore, is not recoverable as part of the special assessments. g. The special assessment does not become due until the property is finally approved for commercial development upon application to the Village [of Germantown], and may never be collected relative to certain properties that have been developed in the past or will not be developed in the future. 8 as levied, have no No. the assessments under § 66.0703(12)(d). 2009AP1714 Emjay's complaint h. That the special assessments expire in 2012 and may never be collected by the Village [of Germantown] relative to properties that are not developed before then. i. The improvements, or a portion thereof, sought to be paid by the special assessments were not for municipal purpose, and were not public works. j. The special assessments include interest from the date of the Development Agreement with Menard, Inc. and not of any special assessment notice. k. The Director of Public Works did not prepare a preliminary or final report as required to be part of the Resolution. l. The Director of Public Works did not prepare any preliminary or final plans and specifications for the improvements to be part of the report. m. The Director of Public Works did not produce any estimate of the entire cost of the improvements or a statement of the final cost of the improvements to be part of the report. n. The Director of Public Works did not make any statement that each property against which the special assessments were levied had been inspected and were benefitted, setting forth the basis of such benefit. o. The report of the Director of Public Works was never filed with the Village Clerk. p. The Village [of Germantown] did not adopt any resolution directing the work or improvement to be carried out and paid for in accordance with the Director of Public Works' report. q. The Village [of Germantown] did not approve the plans and specifications by resolution. 9 No. 2009AP1714 sought a judgment declaring the special assessments illegal and void and a judgment declaring that Germantown had no interest in Emjay's property for purposes of levying special assessments. In addition, Emjay's complaint alleged that the special assessments were "false, a sham and frivolous" and therefore impaired title to Emjay's property; the special assessments tortuously interfered with Emjay's contractual right to receive the full value of its property; and the special assessments were confiscatory in nature and effectively constituted a taking of Emjay's property without just compensation and without due process of law. ¶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 § 66.0703(12)(a). of appeal set forth in Wis. Stat. 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, Emjay, No. 2009AP1714. and the court of appeals affirmed. In an unpublished per curiam decision, the court of appeals agreed with the circuit court that Emjay's 10 No. 2009AP1714 action was barred by the 90-day period of appeal in Wis. Stat. § 66.0703(12)(a). ¶23 Emjay Id., ¶3. petitioned this granted on September 22, 2010. court for review, which we We now affirm. III. STANDARD OF REVIEW ¶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 Wis. 2d 320, 786 rendered if v. Corp., N.W.2d 810. the interrogatories, FMC Summary pleadings, and 2010 admissions WI 90, file, 328 "shall judgment depositions, on ¶15, be answers together with to 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). IV. ANALYSIS ¶25 for A "special assessment," also known as an "assessment benefits," property that improvement." is defined benefits in as "[t]he some assessment important way of from a a tax on public 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. 11 An uncommon No. 2009AP1714 advantage is one that differs in kind, rather than in degree, from the benefits enjoyed by the general public." (Internal citation omitted.)). ¶26 against A municipality's private to owners property power is levy special statutory. assessments 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 Section Code for 8.04 is Mowers v. City purposes based upon of St. of levying Germantown's Francis, 108 special assessments. police powers. Wis. 2d 630, 636, See 323 N.W.2d 157 (Ct. App. 1982). ¶27 the In addition, pursuant to Wis. Stat. § 66.0703(1)(a), governing body of any city, town or village may, by resolution, "levy and collect special assessments upon property in a limited conferred upon and determinable the improvement." property Furthermore, area by for any special municipal § 66.0703(1)(a) benefits work permits or 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 12 No. 2009AP1714 levy special assessments, culminating in the adoption of a final resolution under subsection (8)(c)5 and the publication of the final resolution under subsection (8)(d).6 ¶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: A person having an interest in a parcel of land affected by a determination of the governing body, under sub. (8)(c) . . . , may, within 90 days after the date of the notice or of the publication of the final resolution under sub. (8)(d), appeal the determination to the circuit court of the county in which the property is located. . . . In other words, pursuant to § 66.0703(12)(a), a 90-day period of appeal commences resolution once levying the the municipality special publishes assessments or its once final the municipality mails notice of the final resolution to interested 5 Wisconsin Stat. § 66.0703(8)(c) states: "When the governing body finally determines to proceed with the work or improvement, it shall approve the plans and specifications and adopt a resolution directing that the work or improvement be carried out and paid for in accordance with the report as finally approved." "[T]he report" in subsection (8)(c) refers to the report that a designated municipal officer or employee must prepare at the proposal stage of the special assessment. See § 66.0703(4), (5). 6 Wisconsin Stat. § 66.0703(8)(d) states: "The city, town or village clerk shall publish the final resolution as a class 1 notice, under ch. 985, in the assessment district and a copy of the resolution shall be mailed to every interested person whose post-office address is known, or can be ascertained with reasonable diligence." 13 No. persons, whichever is Sanitary Dist. Wis. 2d 261, No. 617 later. 1, See 2000 WI N.W.2d 235. Mayek App "The v. 182, 2009AP1714 Cloverleaf Lakes ¶11 statute & thus n.9, sets 238 dates certain from which the time limit proceeds rather than a more ephemeral date assessment." ¶30 such as when a property owner knows of the Id., ¶11. 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. id., ¶13 ("A publication of notice the served more assessment is than ninety untimely, days and a See after 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. to be meaningful, they If the statutory prescriptions are must be unbending." Gamroth, 215 Wis. 2d at 259 (internal quotations omitted). ¶31 under The legislature has explicitly directed that an appeal Wis. Stat. § 66.0703(12) is the "sole remedy" of a property owner aggrieved by a special assessment levied under § 66.0703: An appeal under this subsection is the sole remedy of any person aggrieved by a determination of 14 No. 2009AP1714 the governing body, whether or not the improvement was made according to the plans and specifications, and 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. . . . § 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 66.60(12)(a) statute . . . demonstrates [renumbered as Wis. Stat. that section § 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 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." ¶32 dispute Turning to the that it failed facts to of this case, Emjay comply with the 90-day appeal set forth in Wis. Stat. § 66.0703(12)(a). does not period of The 90-day period of appeal commenced on July 12, 2004, the date on which Germantown interested mailed notice property of the owners, Final including Resolution Emjay. § 66.0703(12)(a); Mayek, 238 Wis. 2d 261, ¶11 & n.9. to all See 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 15 No. filed suit in 2008." 2009AP1714 As made clear in Mayek, 238 Wis. 2d 261, ¶13; Gamroth, 215 Wis. 2d at 259; and Bialk, 98 Wis. 2d at 472, 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. of its position, Emjay advances several In support 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. § 893.727 to its appeal instead of Wis. Stat. § 66.0703(12)(a). 7 Wisconsin Stat. § 893.72 contesting special assessment": governs generally "[a]ctions An action to avoid any special assessment, or taxes levied pursuant to the special assessment, or to restrain the levy of the taxes or the sale of lands for the nonpayment of the taxes, shall be brought within one year from the notice thereof, and not thereafter. This limitation shall cure all defects in 16 No. ¶34 Emjay's arguments miss the mark. 2009AP1714 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 straightforward 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. ¶36 As previously explained, an appeal under Wis. Stat. § 66.0703(12) is the "sole remedy" of a property owner aggrieved by a special § 66.0703(12)(e). assessment In this case, levied there under is no § 66.0703. question that Germantown levied the special assessments under § 66.0703 and that Emjay received notice of the same. the proceedings, and defects of power on the part of the officers making the assessment, except in cases where the lands are not liable to the assessment, or the city, village or town has no power to make any such assessment, or the amount of the assessment has been paid or a redemption made. (Emphasis added.) 17 No. ¶37 Both the Preliminary Resolution and 2009AP1714 the Final Resolution expressly provided that the special assessments were being levied pursuant to Germantown's authority under Wis. Stat. §§ 66.0701 Section and 8.04(4) incorporates the 66.0703 of and § 8.04 Germantown's provisions of of its Municipal Wis. Stat. Municipal Code Code. expressly § 66.0703,8 and notably, section 8.04(6) specifically provides that the appeal provisions of Wis. Stat. §§ 66.0703(12) and 66.0701(2)9 "apply to any special assessment levied under this section." not dispute that it received Resolution and the Final notice of Resolution. notice is all that due process requires. both In the this Emjay does Preliminary context, such See Estate of Wolff v. Town Bd. of Town of Weston, 156 Wis. 2d 588, 596, 457 N.W.2d 510 (Ct. App. 1990) ("A notice must be sufficient to enable the 8 Section 8.04(4) of Germantown's Municipal Code provides: "The provisions of § 66.60, Wis. Stats. [renumbered as Wis. Stat. § 66.0703], including those related to notice, hearing and the adoption of a final resolution shall, to the extent not inconsistent with this section, apply to special assessments levied under this section." 9 Wisconsin Stat. § 66.0701(2), in turn, expressly incorporates Wis. Stat. § 66.0703(12). Wisconsin Stat. § 66.0701(2) states, in relevant part, that "[a]ny person against whose land a special assessment is levied under the ordinance may appeal in the manner prescribed in s. 66.0703(12) within 40 days of the date of the final determination of the governing body." Because it is undisputed that Emjay failed to comply with the 90-day period of appeal in Wis. Stat. § 66.0703(12)(a), and therefore necessarily failed to comply with the 40-day period of appeal in Wis. Stat. § 66.0701(2), we make no determination as to which of the two limitation periods controls in this case. 18 No. recipient to determine what he must do to 2009AP1714 prevent the Resolution nor deprivation of his interest."). ¶38 Furthermore, neither the Preliminary 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 Bristol, N.W.2d 14. 2003 WI the special assessments See State ex rel. Robinson v. Town under Wis. Stat. § 66.0703. of levied App 97, ¶¶13-14, 264 Wis. 2d 318, 667 An appeal under Wis. Stat. § 66.0703(12)(a) and (e) is limited to special assessments levied by municipalities under Wis. Stat. § 66.0703. hand, applies Bornemann, 27 to all Wisconsin Stat. § 893.72, on the other special Wis. 2d at 111. assessments "One of generally. the See 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 periods prescribed cases, a in different (Emphasis added.) this "may be commenced chapter, limitation is except only when, provided by within the in special statute." 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. 19 No. 2009AP1714 § 66.0703(12) or as a complaint comprised of separate causes of action is a distinction without a difference: because all of Emjay's claims are based upon the special assessments that Germantown levied under § 66.0703, Emjay's exclusive remedy is an appeal under § 66.0703(12). 278 F.3d at 705-06 constitutional takings See Harbours Pointe of Nashotah, (concluding claim that was the governed by plaintiff's Wis. Stat. § 66.60(12)(a) [renumbered as Wis. Stat. § 66.0703(12)(a)] and that "any contrary interpretation of this statutory scheme would undermine the clear intent of the Wisconsin legislature"). ¶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 § 66.0703(12)(e). complaint mislead on period of appeal. Wis. Stat. However, neither Emjay's notice of appeal nor alleges the 90-day fraud part of or otherwise Germantown. conveys When an intent pressed at to 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 20 No. do." However, absent deficiencies, Rather, assuming procedural allegations that § 66.0703(12). an intent they exist, deficiencies "shall" to be mislead, do are not such procedural constitute precisely raised 2009AP1714 in the an fraud. type appeal of under 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"). V. CONCLUSION ¶42 We conclude challenging governed the by special the § 66.0703(12)(a). that Emjay's assessments 90-day period of appeal levied by appeal and complaint Germantown in Wis. are Stat. 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. By the Court. The decision affirmed. 21 of the court of appeals is No. 1 2009AP1714
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