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First State Bank v. Town of Omro

Court of Appeals of Wisconsin, District II

November 11, 2015

FIRST STATE BANK, PLAINTIFF-APPELLANT,
v.
TOWN OF OMRO, WISCONSIN, DEFENDANT-RESPONDENT

Submitted on Briefs September 22, 2015.

Page 248

[Copyrighted Material Omitted]

Page 249

APPEAL from an order of the circuit court for Winnebago County: KAREN L. SEIFERT, Judge. Cir. Ct. No. 2013CV1366.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Philip A. Munroe of McCarty Law LLP, Appleton.

On behalf of the defendant-respondent, the cause was submitted on the brief of Ryan R. Graff and Andrew L. Stevens of Nash, Spindler, Grimstad & McCracken LLP, Manitowoc.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

OPINION

REILLY, P.J.

Page 250

[366 Wis.2d 224] [¶1] The issue presented is whether a municipality may use its police powers to build roads and levy special assessments against the land benefitted after a developer defaults in its obligation to build the roads. The Barony subdivision, a seventy-four lot subdivision in the Town of Omro, received final plat approval in 2004. By 2009, only a few of the lots had been sold and First State Bank had acquired all sixty-five remaining lots in lieu of foreclosure. As of 2009, the roads in the subdivision had not been paved. In 2013, the Town authorized finishing the roads and specially assessed the lots within the Barony subdivision for the cost of completing the roads.

[366 Wis.2d 225] [¶2] The Bank challenges the Town's authority to levy the special assessments as to all lots and specifically challenges the assessments as to lots four, five, and fifty-five, which do not abut any of the roads built by the Town. We affirm that part of the circuit court's summary judgment decision ratifying the Town's special assessment against the lots that benefit from the road project. We reverse that part of the court's decision that found that the three lots not abutting the improved roads received special benefits; there is a genuine factual dispute over this issue, making it inappropriate for resolution at the summary judgment stage.

BACKGROUND

[¶3] The Barony LLC and the Town entered into a development agreement in July 2004 in conjunction with the Town's final plat approval for the Barony subdivision. The agreement required Barony LLC to construct, complete, and pay for all roads in the subdivision. Construction of the roads was to proceed in three phases, with the first two phases to be completed by July 30, 2006, followed by the final paving to be done by Barony LLC " pursuant to the Road Development Ordinance and only when authorized and required by the Town Board." The Town's Road Development Ordinance provides in relevant part,

PURPOSE
The purpose of this ordinance is to establish minimum construction standards for public roads in the Town. Unless the Town Engineer recommends otherwise, and the Town Board concurs, these specifications shall apply to construction, reconstruction or repair of all roads regardless of whether they are in a plat.
[366 Wis.2d 226] ....

15. Asphaltic Pavement

....
When 70%-80% of the lots are developed, a minimum of one year after basecourse ...

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