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04/26/83 MATTER CONSTRUCTION CONCRETE SIDEWALKS

April 26, 1983

IN RE THE MATTER OF THE CONSTRUCTION OF CONCRETE SIDEWALKS IN THE FOURTH ADDITION TO CHEROKEE PARK PLAT (THIRD ADDITION): JOSEPH F. PRELOZNIK, DOLORES A. BUCHLER, JOSEPH R. DIXON AND JEANNE B. SNODGRASS, ET AL., APPELLANTS
v.
CITY OF MADISON, RESPONDENT; IN RE THE MATTER OF THE CONSTRUCTION OF STANDARD STREET IMPROVEMENTS ON LOT 276, IN THE FOURTH ADDITION TO CHEROKEE PARK PLAT (THIRD ADDITION): JOSEPH F. PRELOZNIK, DOLORES A. BUCHLER, JOSEPH R. DIXON, JEANNE B. SNODGRASS AND RICHARD R. HOHOLIK, APPELLANTS V. CITY OF MADISON, RESPONDENT



Appeal from an order of the Circuit Court for Dane County: William F. Eich, Judge.

Gartzke, P.j.1, Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Gartzke

As authorized by sec. 66.60(12) (a), Stats., appellants appealed to the circuit court from the special assessments by the City of Madison in 1979 against their properties for sidewalks. They seek appellate review of an order dismissing those appeals on the city's motion for summary judgment. We conclude that summary judgment dismissing the appeals was inappropriate because an issue of material fact exists. We therefore reverse.

Summary judgment is governed by sec. 802.08, Stats. Its purpose is to determine whether a dispute can be resolved without a trial. Summary judgment methodology must be followed by an appellate court as well as the trial court. Board of Regents v. Mussallem, 94 Wis. 2d 657, 674, 289 N.W.2d 801, 809 (1980).

Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. If the complaint (in these consolidated cases, the notice of appeal to the circuit court) states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary. Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473, 476-77 (1980).

Summary judgment methodology prohibits the trial court from deciding an issue of fact. The court determines only whether a factual issue exists, resolving doubts in that regard against the party moving for summary judgment. Grams, 97 Wis. 2d at 338-39, 294 N.W.2d at 477.

Before applying that methodology, we note that the city installed the sidewalks and levied the assessments under sec. 66.60, Stats. When proceeding under that statute, a city must elect either to use its taxing power or its police power. Thomas v. Waukesha, 19 Wis. 2d 243, 248-49, 120 N.W.2d 58, 62 (1963). The city used its police power. The common council's resolution directing the improvements and levying the assessments provides that the work "represents an exercise of the police power" of the city.

Section 66.60(1) (b), Stats., distinguishes an assessment levied under the taxing power from one levied under the police power, in that:

The amount assessed against any property for any work or improvement which does not represent an exercise of the police power shall not exceed the value of the benefits accruing to the property therefrom, and for those representing an exercise of the police power, the assessment shall be upon a reasonable basis as determined by the governing body of the city, town or village.

Section 66.60(3) requires different reports to the municipal governing body depending on which power is used. If the municipality proceeds under its taxing power, the report must include an estimate as to each parcel of the benefits, damages, and net benefits over damages or net damages over benefits. Sec. 66.60(3) (c). If it proceeds under its police power, sec. 66.60(3) (d) requires:

A statement that the property against which the assessments are proposed is benefited, where the work or improvement constitutes an exercise of the police power. In such case the estimates required under par. (c) shall be replaced by a schedule of the proposed assessments.

Relying on sec. 66.60(1) (b) and (3) (d), Stats., In re Installation of Storm Sewers, 79 Wis. 2d 279, 287, 255 N.W.2d 521, 525 (1977), held that an assessment made under the police power must be reasonable and the property assessed must be benefited. The court said:

We hold that the fact of benefiting is required to be established as well as the reasonableness of the basis on which the assessment is made. As one state supreme court has stated, referring to an assessment statute: "he statute does prescribe a specific method for apportioning costs. Where such is the case, the municipality may adopt any plan that is fair and ...


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