Summary
In Christenson, 72 Wis.2d at 565, 568, 241 N.W.2d at 194-95, for example, § 66.60(10), STATS., was applied to permit a reassessment where the original assessment was void for the municipality's failure to comply with statutes dictating the content of the city engineer's report.
Summary of this case from Dittberner v. Windsor Sanitary Dist. No. 1Opinion
No. 780 (1974).
Submitted on briefs April 12, 1976. —
Decided May 4, 1976.
APPEAL from a judgment of the circuit court for Brown county: ROBERT J. PARINS, Circuit Judge. Affirmed.
For the appellants the cause was submitted on the brief of Joseph A. Hoida and Berk, Pressentin Hoida of Green Bay.
For the respondent the cause was submitted on the brief of Richard G. Greenwood, city attorney, and Mark A. Warpinski, assistant city attorney.
Facts.
As part of the construction of the Tillman Bridge in Green Bay, Jefferson Street was widened and rebuilt, changing it from a minor street in the overall traffic pattern to a main artery of vehicular traffic. This case and appeal involve assessment procedures initiated by the city pursuant to sec. 66.60, Stats.
On April 18, 1973, a preliminary resolution was adopted stating the improvements contemplated "constitute an exercise of the police power of the City Council under Section 66.60(3) (d) of Wisconsin Statutes."
On April 18, 1973, the city engineer made his report, including what he termed an "estimate of benefits, " basically a preliminary assessment figure and final assessment figure.
On April 26, 1973, the notice for public hearing was issued, stating that the hearing would concern the "proposed assessments of benefits and award of damages."
On May 10, 1973, the public hearing was held.
On June 11, 1973, the final resolution authorizing the street improvements and special assessments was signed by the mayor.
On September 6, 1973, a number of property owners located along Jefferson Street appealed the action of the city of Green Bay, their basic complaint being that their assessed property had not been benefited.
On July 3, 1974, trial to the court was held, the property owners moving the court to declare the assessments null and void for failure to include a statement in the report required by sec. 66.60(2), Stats., that the property assessed had been benefited.
On August 28, 1974, the court issued an order granting such motion and setting aside the assessments, giving the city two options: (1) It could proceed under sec. 66.60 (10), Stats. to assess the property again; or (2) it could submit the matter of assessment to the circuit court under sec. 66.635. Pending exercise of the city's option the court retained jurisdiction.
On October 29, 1974, the city having exercised its option and having reassessed pursuant to sec. 66.60(10), Stats., judgment was entered setting aside the original assessments.
On January 22, 1975, the property owners filed notice of appeal as to that portion of the judgment that confirmed and effectuated the order giving the city the right to reassess.
The issue raised on this appeal is whether the city here was estopped from making a assessment of the properties here involved.
In its original assessment procedure, brought under sec. 66.60, Stats., the city had failed to allege that the properties involved were benefited.
Because of such failure to comply with the statute, particularly sec. 66.60(3) (d), Stats., the circuit court set aside the original assessment.
In setting aside such assessment because of such defect, the circuit court gave the city the option to reassess under sec. 66.60(10), Stats.
This the city did, but its reassessment is challenged by appellants on the ground that the city was estopped from reassessing under the decision of this court in Thomas v. Waukesha (1963), 19 Wis.2d 243, 120 N.W.2d 58.
In the Thomas Case the city had failed to file a statement or schedule, as required by sec. 66.60(3) (d), Stats., that the work on the improvement "constituted an exercise of the police power."
In Thomas this court held that ". . . the procedural steps of sec. 66.60, Stats., are jurisdictional and failure to conform to the procedural steps of the statutes is fatal to the exercise of the police power." (Id. at page 250.)
In Thomas this court stated one issue to be ". . . whether the city by proceeding under sec. 66.60, Stats., without filing a statement under sec. 66.60(3) (d), is now precluded from making an assessment under the police power for the street improvement in question." (Id. at page 248.)
In Thomas, addressing itself to this issue, this court noted that the resolution of the common council of the city there involved indicated that the sole basis for the assessment was the general taxing power, not the police power.
In Thomas this court concluded that the city was acting under the taxing power and not the police power and that the city "proceeded under sec. 66.60, Stats., to the exclusion of other methods it may have employed." (Id. at page 250).
In Thomas this court held in essence that the city had elected to assess on the basis of benefit only and was precluded on appeal from contending that its assessments were made under the police power. Thus the city there was estopped from asserting on appeal its police power after having elected to proceed solely on the basis of its taxing power.
No such attempt to proceed under the police power after having elected to proceed under the taxing power is involved in the case before us. What is here involved is the right of the city, under the option granted by the circuit court, to start over, using the correct procedure for exercise of its police power under sec. 66.60, Stats., where its original assessment attempted on the same basis under the same statute had been found to be procedurally invalid.
The circuit court found that sec. 66.60, Stats., made provisions for exactly this ability to go back and start over in sub. (10) which provides in relevant part: ". . . whenever any assessment is void or invalid for any reason, . . . it [the governing body] is empowered, after giving notice as provided in sub. (7) and after a public hearing, to amend, cancel or confirm any such prior assessment, and thereupon notice of the resolution amending, canceling or confirming such prior assessment shall be given by the clerk as provided in sub. (8) (d)." We agree that this sub. (10) does provide for exactly what the circuit court permitted as an option and for what the city, in fact, here did. The holding in Thomas does not cover nor control the situation here presented. Subsection (10) of sec. 66.60 does apply and does control. The circuit court was empowered to grant to the city the option of reassessing the property, and the city was entitled under sub. (10) to reassess the property following the procedures required by sec. 66.60.
By the Court. — Judgment affirmed.