Published: May 31, 2011
Author: Charles (Buck) Sweeney

In a recent case from the Court of Appeals, Hildebrand v. Town of Menasha, the appeal court upheld Judge Scott Woldt’s opinion in a Winnebago County assessment case. In this particular case, the Town of Menasha specially assessed a vacant commercial property owner for the cost of placing a trail through the property. The Hildebrands were assessed $33,205.60 in construction costs for the installation of a 10’ asphalt trail abutting their commercial property. In response, the Hildebrands filed a notice of appeal to the circuit court raising numerous issues.

The question for the trial court, which was upheld by the Court of Appeals, was whether the Hildebrands' property was:

1. Specially benefitted by the trail segment for which the assessments were imposed.
2. Whether the trail segment for which assessments were imposed constitutes a local improvement.
3. Whether the trail segment for which assessments were imposed constitutes a general improvement for the community at large and therefore not a proper subject for imposition of the special assessments.

The evidence at trial made it very clear that this particular trail was clearly not a sidewalk, but was in fact a bike trail to help connect a regional multi-community recreational trail linking Oshkosh to Hortonville. The trail in question was asphalt and 10’ wide, unlike most typical sidewalks.

After the Town realized that they were losing, they tried to transform the trail into a sidewalk. Too late, according to the Court of Appeals.

If municipalities want to make sure they have a correct legal special assessment, the assessment must be local. Although incidentally beneficial to the public at large, its primary means for the accommodation and convenience of inhabitants in a particular locality and confers special benefits to the property.

Remember, if you do not want your sidewalk to be specially assessed, consider asking your municipality to place a 10’ asphalt trail through your yard.

For more information about sidewalk and trail assessments in Wisconsin, contact Buck Sweeney at 608.283.6743 or csweeney@axley.com.

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