Special assessment for construction of regional trail held invalid

By Melanie Thwing

Hildeband v. Town of Menasha

(May 11, 2011, Wisconsin Court of Appeals)

David and Susan Hildebrand own 6.216 undeveloped acres in the Town of Menasha, WI. The property is zoned commercial but the owners had no current plan for development.  The north side of this property does not have a sidewalk but does abut four-lane arterial street.  In 2007 the town assessed the owners $33,205 for the installation of  the 958-foot section of a 10-foot wide asphalt regional recreation trail.  The section would have connected to the regional trails in several municipalities.

About the same time the Town also applied for grant funding through the Department of Natural Resources.  Under Wis. Admin. Code. § NR 50.06 these projects are given priority based on general public use. The Town specified in the application that the trail would “be used extensively by people outside [its] governmental jurisdiction.”  The project was also continuously referred to as a “recreational trail” not a sidewalk. As the community development director for the Town pointed out unlike sidewalks, the town is not required to maintain the trails if they choose not to.

The Hildebrands challenged the assessment in circuit court, arguing that Wis. Stat. § 66.0703 only permits assessments for “special benefits [conferred] upon the property.”  Witnesses for the Town testified that a special benefit occurred because the trail now provided direct and safe access to the property for nonmotorists and enhanced the property value. The circuit court, however, sided with the Hildebrands

The town appealed to the Wisconsin Court of Appeals.  According to the Court of Appeals a general benefit is one that benefits the entire community whereas a special benefit is an improvement that primarily benefits a particular locality and gives special benefits to those properties. By looking at the purpose of the trail the circuit court found that the primary benefit is general in nature.  The court found the trail was more like a park than a sidewalk because it provides recreational benefits to the region, and the landowners are not required to clear snow from the trail (unlike a sidewalk).  The court also noted that the Hildebrands’ property also had another trail running along the south side, and that therefore any special benefit to the property that comes with access to the trail had already been satisfied.  Because of this, there is no appreciable amount of special benefit given to the Hildebrand property by extending the trail.

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