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COURT OF APPEALS DECISION DATED AND RELEASED JUNE 20, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0582
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
JOHN A. ROOYAKKERS,
JILL D. ROOYAKKERS,
JOHN S. STRICK and
JULIE M. STRICK,
Plaintiffs-Respondents,
v.
VILLAGE OF LITTLE
CHUTE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Outagamie County:
HAROLD V. FROEHLICH, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. The Village of Little
Chute appeals a judgment voiding a special assessment against John and Jill
Rooyakkers and John and Julie Strick that was imposed to partially offset the
cost of a mini-storm sewer installed to serve the Rooyakkers' property. The Village contends that the trial court
erred by voiding the assessment because:
(1) the Rooyakkers and Stricks benefited from the installation of the
mini-storm sewer; and (2) the assessment was made upon a reasonable basis. Because we conclude that the trial court's
finding that the Rooyakkers and Stricks did not accrue a benefit from the mini-storm
sewer was not clearly erroneous, we affirm the judgment.
In 1985, the Rooyakkers
connected their sump pump to the storm sewer catch basin via a private underground
pipe. The Stricks' sump pump is also
connected to the pipe on the Rooyakkers' property. The Rooyakkers were not required to install the pipe, but only
did so to prevent water from accumulating on their property, their neighbors'
property and the road.
In 1993, the Village
installed a mini-storm sewer along the curb in front of the Rooyakkers' and
Stricks' property to collect sump pump discharge and carry it to the main storm
sewer. The mini-storm sewer was installed
as part of a Village policy to eliminate ice buildups on the streets that
resulted from sump pump runoff and to increase the longevity of the
streets. Upon completion of the
mini-storm sewer system, the Village determined that the Rooyakkers and Stricks
were uniquely benefited by the installation of the sewer. Accordingly, the Village established a
special assessment pursuant to its police powers under § 66.60(1)(b), Stats.
The amount each property owner was assessed was based upon the amount of
lineal footage that each property owner had abutting the mini-storm sewer. Using this method, the Rooyakkers were
assessed a total of $346.50 and the Stricks were assessed $631.40. Both the Rooyakkers and the Stricks,
however, refused to pay the assessment and filed suit to have the assessment
voided. The trial court found that
neither the Rooyakkers nor the Stricks received a benefit from the installation
of the mini-storm sewer and voided the assessment.[1] The Village appeals.
Under § 66.60(1)(b), Stats., a Village may exercise its
police power to levy a special assessment.
However, this power is not unlimited.
As we noted in Gelhaus & Brost v. Medford, 144 Wis.2d
48, 51, 423 N.W.2d 180, 181-82 (Ct. App. 1988), the assessed property must be
benefited and the assessment must be made upon a reasonable basis. We note that when the Village levies an
assessment under its police power, the property need not be benefited to the
full extent of the assessment. Id.
at 51, 423 N.W.2d at 182. Rather, it is
sufficient that the property has received some benefit, regardless of
degree. See id.
In this case, the
Village contends that the trial court erred by finding that neither the
Rooyakkers nor the Stricks were benefited by the installation of the mini-storm
system. Whether the Rooyakkers and
Stricks benefited from the mini-storm system is a question of fact. See Egg Harbor v. Sarkis,
166 Wis.2d 5, 16, 479 N.W.2d 536, 540 (Ct. App. 1991). We will accept the trial court's findings of
fact unless they are clearly erroneous.
Section 805.17(2), Stats.
At trial, Rooyakkers
testified that neither he nor the Stricks used the mini-storm system, but that
they continued to use the private underground pipe they installed to carry off
their sump pump discharge.
Additionally, Rooyakkers testified that since installing his private
system, there has been no water accumulation on his property or in the street
fronting his home. Finally, he stated
that the main line to which the mini-storm sewers are attached is too small,
thereby causing flooding on the streets.
Dennis Welker, a public works inspector for the City of Appleton,
affirmed Rooyakkers' testimony. Welker
testified that he had never noticed any standing water problems or wet areas on
the Rooyakkers' property, nor had he noticed any ice buildup on the road in
front of the Rooyakkers' home prior to the installation of the mini-storm
sewer. Welker further stated that the
mini-storm sewer did not offer any advantages that were lacking in the
Rooyakkers' private system. Finally,
Strick testified that he did not have any stagnant water or ice problems from
his sump pump discharge.
The Village offered
testimony from Gene Hojan, the director of public works and an engineer for the
Village of Little Chute. Hojan
testified that the mini-storm sewer installed in front of the respondents'
homes was part of a plan to supply every lot in the community with a mini-sewer
to carry off sump pump discharge. Hojan
testified that the plan was instituted in response to complaints that water was
running along the curbs and into the streets causing ice to form. However, Hojan stated that he was not aware
of any water discharge problems on the respondents' property or of ice buildup
on the road in front of the respondents' homes.
This evidence is
sufficient to support the trial court's finding that the Rooyakkers and Stricks
did not benefit from the installation of the mini-storm sewer system. The evidence supports a finding that the
Rooyakkers' and Stricks' existing system adequately discharged their sump pump
water and prevented both ground water accumulation and ice buildup. Further, like the Rooyakkers' and Stricks'
existing system, the mini-storm system drained the sump pump discharge into the
city's storm sewers, and there was no evidence the new system was more
efficient or effective. In fact, the
evidence showed that flooding occurred after the installation of the mini-storm
system. The sum of these facts
demonstrates that the trial court properly found that the Rooyakkers and
Stricks realized no benefit from the new storm system. Therefore, we conclude that the trial
court's finding was not clearly erroneous and affirm the judgment.[2]
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.