                                                        2018 WI 24


                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2016AP474
COMPLETE TITLE:        CED Properties, LLC,
                                 Plaintiff-Appellant-Petitioner,
                            v.
                       City of Oshkosh,
                                 Defendant-Respondent.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 373 Wis. 2d 767, 895 N.W.2d 855
                                      (2017 – Unpublished)

OPINION FILED:         April 3, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         November 1, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Winnebago
   JUDGE:              John A. Jorgensen

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
                       J. (opinion filed)
  NOT PARTICIPATING:


ATTORNEYS:


       For the plaintiff-appellant-petitioner, there were briefs
filed by Erik S. Olsen, Joseph J. Rolling, Andrew D. Weininger,
and Eminent Domain Services, LLC, Madison.           There was an oral
argument by Erik S. Olsen.


       For the defendant-respondent, there was a brief filed by
Richard J. Carlson and Silton Seifert Carlson, SC, Appleton.
There was an oral argument by Richard J. Carlson.
                                                                        2018 WI 24

                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2016AP474
(L.C. No.      2015CV70)

STATE OF WISCONSIN                             :            IN SUPREME COURT

CED Properties, LLC,

               Plaintiff-Appellant-Petitioner,                        FILED
      v.                                                          APR 3, 2018
City of Oshkosh,                                                    Shelia T. Reiff
                                                                 Clerk of Supreme Court
               Defendant-Respondent.




      REVIEW of a decision of the Court of Appeals.                   Reversed and

the cause remanded to the circuit court.

      ¶1       REBECCA GRASSL BRADLEY, J.          CED Properties, LLC (CED)

challenges the special assessment imposed by the City of Oshkosh

(City)1 following the reconfiguration of a traditional traffic

light intersection into a roundabout.2             We review the unpublished

court     of    appeals    decision,   CED   Properties,       LLC    v.    City     of


      1
       The City imposed the special assessment on other affected
commercial property owners, but this case involves only CED's
challenge to the special assessment.
      2
       Roundabout, American Heritage Dictionary of the English
Language (5th ed. 2011) ("A traffic circle.").
                                                                               No.      2016AP474



Oshkosh, No. 2016AP474, unpublished slip op. (Wis. Ct. App. Jan.

18,   2017),      affirming        the    circuit        court's       grant       of       summary

judgment     in     favor     of    the    City.3          CED       raises    two          issues:

(1) whether the term "special benefits" in Wisconsin's eminent

domain     statute    has     the     same       meaning      in     Wisconsin's            special

assessments statute, and if so, whether the City's denial of the

existence of any special benefits during the                                earlier eminent

domain      proceeding      precludes            the     City      from      asserting          the

conferral of special benefits in the later special assessment

action; and (2) whether CED raised genuine issues of material

fact precluding summary judgment.

      ¶2     We hold that "special benefits" has the same meaning

under both statutes.             Although the failure to raise the issue of

special      benefits       in      an    eminent        domain        action        does      not

necessarily preclude a municipality from later doing so in a

special     assessment        action,        a       municipality's         admission         that

special benefits are non-existent in the context of an eminent

domain     proceeding       constitutes          relevant        evidence       in      a    later
challenge to the special assessment.

      ¶3     We     further        hold   the         court     of    appeals        erred       in

concluding CED failed to overcome the presumption of correctness

afforded      the    City's        special           assessment       and     to     establish

sufficient genuine issues of material fact.                             The affidavit of

CED's      expert    raises        material           factual      issues      in       dispute,

      3
       The        Honorable        John   A.         Jorgensen,       Winnebago         County,
presiding.


                                                 2
                                                                  No.    2016AP474



including    whether    the    roundabout      project    conferred      a   local

rather than a general benefit, whether the project conferred any

special benefits on CED's property or actually diminished its

value, and whether the amount of the special assessment was fair

and   equitably      apportioned      among     the    commercial    properties

involved as well as proportionate to the benefits accruing to

the property.       Because we conclude CED overcame any presumption

of correctness by presenting competent evidence to the contrary,

we reverse the decision of the court of appeals and remand to

the circuit court for a trial.

                               I.    BACKGROUND

      ¶4    CED owns property located on the northeast corner of

the intersection of United States Highway 45 and State Highway

76. Locally, United States Highway 45 is called Murdock Avenue

and State Highway 76 is called Jackson Street.                      A Taco Bell

franchise has operated on the property since 1992.

      ¶5    In January 2008, the City and the Wisconsin Department

of Transportation entered into an improvement plan agreement to
reconstruct and install a multi-lane roundabout at the Jackson-

Murdock    intersection.       The    reconstruction      plan    proposed    the

removal     of    traffic   signals,        concrete    and    asphalt   paving,

concrete driveway approaches, sidewalk replacement and repair,

sanitary    and    storm    sewer    laterals,    and    the    improvement    of

streetscaping and landscaping.              The plan required the City to

take about six percent of CED's property to ensure enough space

to build the roundabout.            The City used its power of eminent
domain under Wis. Stat. ch. 32 to do so.                 In April 2012, after
                                        3
                                                                         No.     2016AP474



lengthy litigation, the City and CED agreed the City would pay

CED $180,000 just compensation for the taking.                            During that

litigation, the City filed with the circuit court the appraisal

of its expert, Patrick Wagner.                 According to Wagner's report,

the City's partial taking caused CED's property to decrease in

value by $38,850, and he testified during his deposition that

the   taking    did   not    confer      any    "special     benefits"          on   CED's

property under Wis. Stat. § 32.09(3) (2015-16).4

      ¶6     In July 2010, the City passed a resolution that levied

special     assessments     upon   CED's       property    and    other        commercial

properties     pursuant     to     its    police     power       under    Wis.       Stat.

§ 66.0703(1)(a)5      to    help    fund       the   intersection         improvement



      4
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.

      Wisconsin Stat. § 32.09(3) provides:

      Special   benefits  accruing   to  the   property  and
      affecting its market value because of the planned
      improvement shall be considered and used to offset the
      value of property taken or damages under [Wis. Stat.
      § 32.09(6)], but in no event shall such special
      benefits be allowed in excess of damages described
      under sub. (6).
      5
          Wisconsin Stat. § 66.0703(1)(a) provides:

      (a)   Except as provided in s. 66.0721, as a complete
      alternative to all other methods provided by law, any
      city, town or village may, by resolution of its
      governing body, levy and collect special assessments
      upon property in a limited and determinable area for
      special benefits conferred upon the property by any
      municipal work or improvement; and may provide for the
      payment of all or any part of the cost of the work or
                                                      (continued)
                                          4
                                                                No.   2016AP474



project.     CED challenged the special assessment, but the City

argued the challenge was untimely.             That dispute ended after

this court ruled that CED's appeal of the assessment was timely

and its complaint sufficient; we instructed the circuit court to

grant summary judgment in favor of CED.             See CED Properties, LLC

v. City of Oshkosh, 2014 WI 10, 352 Wis. 2d 613, 843 N.W.2d 382

[hereinafter "CED I"].6

     ¶7     Following this court's decision in CED I, the City re-

assessed CED pursuant to Wis. Stat. § 66.0703(10),7 imposing a


     improvement out      of   the       proceeds    of   the   special
     assessments.

Paragraph (b) provides where "an assessment represents 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."
     6
       CED asserted in CED I that the improvement project had not
conferred special benefits under Wis. Stat. § 66.0703(1)(a), but
this substantive issue was not addressed or resolved.     See CED
Properties, LLC v. City of Oshkosh, 2014 WI 10, 352 Wis. 2d 613,
843 N.W.2d 382.
     7
         Wisconsin Stat. § 66.0703(10) provides:

     If the actual cost of any project, upon completion or
     after the receipt of bids, is found to vary materially
     from the estimates, if any assessment is void or
     invalid,   or  if  the   governing  body   decides   to
     reconsider and reopen any assessment, it may, after
     giving notice as provided in sub. (7)(a) and after a
     public hearing, amend, cancel or confirm the prior
     assessment. A notice of the resolution amending,
     canceling or confirming the prior assessment shall be
     given by the clerk as provided in sub. (8)(d). If the
     assessments are amended to provide for the refunding
     of special assessment B bonds under s. 66.0713(6), all
     direct and indirect costs reasonably attributable to
                                                      (continued)
                                     5
                                                                                No.    2016AP474



special assessment of $19,486.36 based on CED's frontage along

Jackson     Street    and    $20,616.67            based   on   CED's      frontage         along

Murdock Avenue for a total special assessment of $40,103.03.8

The City issued a final resolution authorizing the re-assessment

and a report describing the special benefits conferred upon CED

as:       "a substantial increase in accessibility, which includes

safer,     lower    cost,        and   shorter       travel     times      for    customers,

deliveries and employees.               These special benefits are different

in kind than those enjoyed by the public for through traffic."

The   City    said    additional            special    benefits       were      conveyed      by

correcting       sidewalk        defects      in    sections      contiguous          with   the

property, which "provide[d] a safe corridor for pedestrians to

access     the     site,"    and       by    improving      the      streetscape,           which

enhanced the property's overall aesthetics.

      ¶8     The City's report further explained that the project

improved     the     intersection's           primary      function        of    moving       and

carrying      traffic       (a     "community         benefit")       as     well      as     the

secondary        benefit    of     providing         access     to    traffic         flow    (a
"special     benefit"       to     abutting         property      owners,        like       CED).

According to the City, this intersection served about 25,000



      the refunding of the bonds may be included in the cost
      of the public improvements being financed.
      8
       The  entire   project  cost   $4,060,000.  The   Wisconsin
Department of Transportation paid $2,610,750.      The City paid
$1,449,250, but specially assessed the affected property owners
$307,118.72 of that amount.      The $40,103.03 charged to CED
equaled 0.99 percent of the total entire project cost.


                                               6
                                                                  No.   2016AP474



vehicles each day, with 1,973 (or about 7.9 percent) of those

vehicles tied to stops at the Taco Bell on CED's property.                   The

City's analysis indicated that before the roundabout, it took a

vehicle 37.9 seconds to travel through the intersection; this

was reduced to 10.5 seconds per vehicle after the project.

       ¶9     CED    again   appealed   the    special    assessment    to   the

circuit court, claiming the project conferred only community or

general benefits of better traffic flow and no local or special

benefits      at    all.     CED   further    claimed    the   assessment    was

unreasonable because it had no nexus between the linear feet

upon which the property was assessed and the alleged benefits

conferred.

       ¶10    The City moved for summary judgment.             It acknowledged

the improvement conferred public benefits, but asserted that the

improvement also conferred special benefits assessable against

CED, that the resulting assessment was reasonable, and that CED

failed to overcome the presumption of correctness afforded the

City's assessment.
       ¶11    CED opposed the motion, arguing that because the City

conceded "special benefits" did not accrue to CED's property

during the Wis. Stat. ch. 32 eminent domain action, the City

forfeited the opportunity to assert "special benefits" during

the later special assessment appeal.              Alternatively, CED argued

that   even    if    asserting     special    benefits   during   the   eminent

domain action was not a condition precedent to asserting them

during the ch. 66 special assessment action, the improvements
were not local in nature, no special benefits accrued, and the
                                        7
                                                                          No.    2016AP474



assessments'       costs        were   unreasonably      apportioned          among     the

abutting property owners.                CED also argued that the special

assessment violated the equal protection clause of the Wisconsin

and United States Constitutions.9

     ¶12    In     support        of   its       arguments,       CED   submitted       the

affidavit and appraisal of its expert witness, James C. Johnson.

According    to     his    affidavit,        Johnson    is    a    certified     general

appraiser     who       was      previously        employed       by    the     Wisconsin

Department of Transportation as an "access specialist."                           During

his time with that department, he "served on the committee that

established       the      'Special       Benefits       Criteria'        which       were

implemented and used by the [department] for assessing whether

benefits were general benefits or special benefits."                            He cites

to cases on which he acted as an "access expert . . . on the

issue of reasonable access."                     He served as the department's

"litigation coordinator," training the department's consultant

appraisers "on evaluating general vs. special benefits."                          "[A]ll

requests    for     changes       in   the   amount     of    compensation        due    to
landowners        in      the     southwest        region     were       reviewed        by

[Johnson] . . . includ[ing] consideration of any access issues,

general benefits, and special benefits."

     ¶13    Having        personally     inspected      CED's      property,      Johnson

believed that "absolutely no benefit to [CED's property], let

alone a special benefit" arose from any of the improvements.                            In


     9
         CED does not make this argument before this court.


                                             8
                                                                             No.    2016AP474



fact, Johnson opined that the roundabout was a detriment to

CED's property, explaining:                 "Retail fast food sites like the

subject      are     more     valuable       when      they     are     on        controlled

intersections"        since    "[g]reater         time    at    the    intersection       is

desirable for the subject because the subject is an impulse

stop."       According to Johnson's appraisal, as of October 29,

2009, the roundabout project caused the fair market value of

CED's property to decrease $251,370.

       ¶14    CED    also   submitted       an    affidavit      from       its    attorney,

attaching, as material here, Wagner's appraisal and the page

from   Wagner's       deposition      where       he     said   no     special       benefit

accrued to CED's property in the eminent domain action.                                  CED

asserted in its brief opposing summary judgment that Wagner's

appraisal and testimony precluded the City from later specially

assessing CED for "special benefits."

       ¶15     The    circuit    court       granted      the    City's       motion     for

summary judgment.           It did not address whether genuine issues of

fact   remained      regarding       the    existence      of    a    special       benefit,
whether      the    benefit    was    local       or     general,      or    whether     the

assessment was reasonable.

       ¶16    CED appealed and the court of appeals affirmed, with

Judge Mark Gundrum dissenting.                   CED Properties, LLC v. City of

Oshkosh, No. 2016AP474, unpublished slip op. (Wis. Ct. App. Jan.

18, 2017).         The court of appeals' majority ruled CED failed to

prove "a genuine issue of material fact to show that it has

overcome the presumption of correctness" and failed to prove the
special      assessments      were    not    reasonable.             Id.,    ¶29.      Judge
                                             9
                                                                          No.    2016AP474



Gundrum    disagreed,     concluding          that       CED's     expert's     affidavit

setting forth reasons why the project made vehicle access to

CED's property "worse, not better" was sufficient evidence that

"could support a finding by a reasonable jury that a special

benefit does not exist."                   Id.,    ¶34 (Gundrum, J. dissenting)

(quoting First State Bank v. Town of Omro, 2015 WI App 99, ¶20,

366 Wis. 2d 219, 873 N.W.2d 247).                       Judge Gundrum said "a jury

issue exists as to whether the Jackson-Murdock Project conferred

special benefits on the CED property," and the "matter should be

returned to the circuit court for a jury trial on the issue."

Id., ¶¶30, 34.       CED petitioned for review in this court, which

we granted.

                              II.    STANDARD OF REVIEW

     ¶17    This case requires us to review a grant of summary

judgment   against      CED.         "We    independently        review    a    grant    of

summary judgment using the same methodology of the circuit court

and the court of appeals."             Water Well Sols. Serv. Grp., Inc. v.

Consol.    Ins.    Co.,       2016    WI     54,    ¶11,     369    Wis. 2d 607,        881
N.W.2d 285.       The law governing summary judgment is well-known.

Summary judgment is appropriate when there is no genuine dispute

of material fact and the moving party is entitled to judgment as

a matter of law.        Wis. Stat. § 802.08(2).               Summary judgment must

be   granted      "if     the        pleadings,          depositions,     answers        to

interrogatories,        and    admissions          on    file,     together     with    the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a
judgment as a matter of law."               Id.
                                             10
                                                                         No.    2016AP474



      ¶18     We apply a two-step test to make this determination.

Garza    v.   Am.    Transmission       Co.     LLC,    2017     WI    35,     ¶21,   374

Wis. 2d 555, 893 N.W.2d 1 (citing Green Spring Farms v. Kersten,

136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987)).                             First, this

court asks if the plaintiff stated a claim for relief.                                Id.

Second, this court applies Wis. Stat. § 802.08(2), asking if any

factual issues exist that preclude a grant of summary judgment.

Id.     It is undisputed here that CED's complaint states a claim

for   relief.        The    parties'     dispute       focuses    on     whether      CED

presented sufficient evidence to create any material issues of

fact to overcome the presumption of correctness.

      ¶19     "Summary judgment is a drastic remedy; therefore, the

moving party must clearly be entitled to judgment as a matter of

law."     Genrich v. City of Rice Lake, 2003 WI App 255, ¶6, 268

Wis. 2d 233, 673 N.W.2d 361 (citing Vill. of Fontana-On-Geneva

Lake v. Hoag, 57 Wis. 2d 209, 214, 203 N.W.2d 680 (1973)).                             In

reviewing a grant of summary judgment, we view the facts in a

light most favorable to CED, the nonmoving party.                        See Genrich,
268 Wis. 2d 233, ¶6.             Any doubts as to whether a genuine issue

of material fact exists should be resolved against the City as

the moving party.          Id.

      ¶20     This   case        also   involves       the     interpretation         and

interplay            of           two          statutes,              Wis.         Stat.

§§ 32.09 and 66.0703(1)(a).              The     interpretation          of     statutes

presents a question of law we review de novo.                     State v. Talley,

2017 WI 21, ¶24, 373 Wis. 2d 610, 891 N.W.2d 390.


                                          11
                                                                    No.     2016AP474



                                III.     ANALYSIS

    ¶21     CED and the City disagree on whether the term "special

benefits" has the same meaning in both Wis. Stat. ch. 32 and

ch. 66.     CED argues that if it has the same meaning, then the

City cannot take the position that no special benefits exist in

a ch. 32 action but later assert special benefits exist in a

ch. 66 action.      We hold the term "special benefits" has the same

meaning in both statutes, but that it is used differently in

each context.      Accordingly, the City is not barred from imposing

a special assessment on CED's property to pay for improvements,

provided    the   City     establishes        the   improvements     were    local,

conferred special benefits on CED's property, and were fair,

equitable, and in proportion to the benefits accruing to the

property.    These issues involve questions of fact for the trier

of fact to resolve.

    A.     The Meaning and Application of "Special Benefits"
    ¶22     We begin with the language of the statutes.                   See State

ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000

WI 76,    ¶31,    236    Wis. 2d 211,      612      N.W.2d 659).      Except     for

technical or specially-defined words or phrases, "[s]tatutory

language     is    given       its     common,       ordinary,     and     accepted

meaning. . . ."          Id.         Additionally,     because     "[c]ontext     is

important to meaning. . . . statutory language is interpreted in

the context in which it is used; not in isolation but as part of
a whole; in relation to the language of surrounding or closely-


                                         12
                                                              No.    2016AP474



related     statutes;   and   reasonably,       to   avoid     absurd      or

unreasonable     results."      Id.,      ¶46    (citations         omitted).

"Statutory language is read where possible to give reasonable

effect to every word, in order to avoid surplusage."           Id.

    ¶23     Wisconsin Stat.   §§ 32.09 and 66.0703(1)(a) both use

the term "special benefits."       Wisconsin Stat. § 32.09 governs

"all matters involving the determination of just compensation in

eminent domain proceedings."    Section 32.09(3) provides:

    Special   benefits  accruing   to  the   property  and
    affecting its market value because of the planned
    improvement shall be considered and used to offset the
    value of property taken or damages under [Wis. Stat.
    § 32.09(6)], but in no event shall such special
    benefits be allowed in excess of damages described
    under sub. (6).[10]
(Emphasis   added.)     Section 66.0703   governs    the     general    rules

applicable to special assessments imposed by a city, town or

village.     Section 66.0703(1)(a) provides:

    Except as provided in s. 66.0721,[11] as a complete
    alternative to all other methods provided by law, any
    city, town or village may, by resolution of its
    governing body, levy and collect special assessments
    upon property in a limited and determinable area for
    special benefits conferred upon the property by any
    municipal work or improvement; and may provide for the
    payment of all or any part of the cost of the work or
    improvement out of the proceeds of the special
    assessments.
    10
       Wisconsin Stat. § 32.09(6) provides the method to
determine the amount a property owner shall be compensated in
the case of a partial taking of property.
    11
       Wisconsin Stat. § 66.0721, entitled "Special assessments
on certain farmland or camps for construction of sewerage or
water system," is not relevant to the analysis of this case.


                                  13
                                                                     No.    2016AP474



(Emphasis added.)

      ¶24    Because neither statute defines the non-technical term

"special benefits," we give the term its common, ordinary, and

accepted meaning.           Kalal, 271 Wis. 2d 633, ¶45.                The common,

ordinary, and accepted meaning of the term "special benefits"

itself does not change from one statutory section to another,

particularly        when       the    statutory        provisions        have     some

relationship as they do here.12              "Statutes in pari materia are to

be interpreted together as though they were one law."                           Antonin

Scalia & Bryan A. Garner, Reading Law:                      The Interpretation of

Legal Texts 252 (2012).              In other words, laws addressing the

same subject should be interpreted harmoniously, if possible.

Id.        There   is     no     textual    basis     for    assigning     different

interpretations of "special benefits" accruing to property in

the     context     of     eminent    domain     versus       "special     benefits"

conferred on property upon which a special assessment is levied.

Wisconsin courts have applied the same definition of special

benefits     in    both    the    eminent    domain    and    special     assessment
contexts.

      ¶25    "Special benefits" means "an uncommon advantage."                      Red

Top Farms v. DOT, 177 Wis. 2d 822, 833, 503 N.W.2d 354 (Ct. App.

1993)      (eminent      domain);    Goodger     v.    City     of   Delavan,      134

      12
        "The presumption of consistent usage applies also when
different sections of an act or code are at issue" and "the more
connection the cited statute has with the statute under
consideration, the more plausible the argument becomes."
Antonin   Scalia  &   Bryan  A.   Garner,   Reading Law:     The
Interpretation of Legal Text 172-73 (2012).


                                            14
                                                                                          No.   2016AP474



Wis. 2d 348,             352,        396    N.W.2d 778           (Ct.     App.      1986)       (special

assessment).                 "Special"          is     defined    as    "[s]urpassing           what    is

common or usual."                    Special, American Heritage Dictionary of the

English        Language             (1992       3d.    ed.).       "Benefit"         is    defined      as

"[s]omething                 that     produces           or     enhances        well        being;      an

advantage."                  Benefit,       American           Heritage       Dictionary        of     the

English Language (1992 3d ed.).                                This judicial definition of

"special benefits" as "an uncommon advantage" aligns with the

text of both statutes.

         ¶26       In Goodger, the court of appeals addressed whether a

special benefit was conferred for purposes of determining the

validity           of    a    special       assessment.            134       Wis. 2d at 352.            It

adopted        a    plain       meaning          definition       of    "special          benefits"     to

denote             "uncommon            advantage"               because           "[a]bsent . . . a

legislative definition, the ordinary and accepted meaning of a

word used by the legislature can be established by reference to

a recognized dictionary."                        Id. (citation omitted).

         ¶27       The legislature uses the term "special benefits" in
each statute differently.                             In Wis. Stat. § 32.09(3), the term

begins the subsection and is qualified by the words that follow:

"Special benefits accruing to the property and affecting its

market value because of the planned improvement . . . ."                                                In

Wis. Stat. § 66.0703(1)(a), the term is embedded in the middle

of   a    sentence             and     is       not     qualified       by    an    effect      on     the

property's market value:                        " . . . for special benefits conferred

upon the property by any municipal work or improvement. . . ."
Although           the       meaning       of    the     term     "special         benefits"     itself
                                                        15
                                                                     No.    2016AP474



remains the same in both statutes, how it is used and applied in

the eminent domain and special assessment contexts is textually

different.

    ¶28     In the eminent domain statute, "special benefits" are

restricted to those local improvements that affect the market

value of the property13 for purposes of determining whether to

offset compensation to the owner of property taken for a planned

public improvement.          If the improvement project necessitating

the taking does not affect the market value of the property,

then the City is not entitled to an offset for any special

benefits     accruing   to    the   property       because     of    the    planned

improvement.      An    assertion   of     "special   benefits"        in   eminent

domain actions acts as an affirmative defense for the condemnor;

the governmental body has the burden of showing it is entitled

to an offset when property immediately increases or imminently

will increase in market value.             Hietpas v. State, 24 Wis. 2d

650, 656-57, 130 N.W.2d 248 (1964); see also Molbreak v. Vill.

of Shorewood Hills, 66 Wis. 2d 687, 703, 225 N.W.2d 894 (1975)
("special    benefits    accruing    to     land     not     taken    in    eminent

domain . . . may be set off against damages if they enhance the


    13
       This court expanded the scope of special benefits to
include "imminent adaptability of the land to a higher and
better use from an economic standpoint because of proximity to
the public improvement." Hietpas v. State, 24 Wis. 2d 650, 656,
130 N.W.2d 248 (1964). Concomitantly, this court also extended
the meaning of special benefits "to include enhanced value
because of more advantageous adaptability for use."   Petkus v.
State, 24 Wis. 2d 643, 648, 130 N.W.2d 253 (1964).


                                      16
                                                                                No.    2016AP474



market value immediately" (emphasis added) (citing Hietpas, 24

Wis. 2d at 656-57)).

       ¶29     The statutory qualification in Wis. Stat. § 32.09(3)

links special benefits to an effect on the market value of the

property.       When the property's market value remains unaffected

by the planned improvement, a particular taking may not require

an    offset    against         compensation         owed    to    the     property     owner.

Regardless,         the     improvement        project       may    nevertheless        confer

special benefits on the property owner within the meaning of

ch. 66.

       ¶30     Wisconsin        Stat.       § 66.0703(1)(a)         does    not       condition

special       assessments          on   the        conferral       of    special      benefits

affecting       the    market        value    of     the     property.          The    work    or

improvement must only provide an uncommon advantage specific to

that property.            See Genrich, 268 Wis. 2d 233, ¶¶13-14; Goodger,

134 Wis. 2d at 352.                  Under § 66.0703(1)(a), "special benefits"

can    include         an      increase       in     market       value     following         the

improvement.          Molbreak, 66 Wis. 2d at 703.                      But the text does
not require it.

       ¶31     CED     argues        that    the     word     "shall"      in    Wis.    Stat.

§ 32.09(3) is mandatory language requiring the City to consider

and   use     any     special        benefits      to   offset      compensation        to    the

property       owner      in    an    eminent       domain     action;      therefore,        CED

argues, failing to raise special benefits in an eminent domain

action       forecloses        a     municipality          from    later    assessing         the

property       for     special        benefits       purportedly        conferred.           This
argument ignores the narrowing of § 32.09(3)'s mandate to only
                                                17
                                                         No.   2016AP474



those special benefits affecting a property's market value.          In

the absence of an immediate or imminent increase in a property's

fair market value triggered by the planned public improvement,

the municipality need not consider or use special benefits to

offset the value of property taken under § 32.09.14

     ¶32   In   the   eminent   domain   proceeding   involving   CED's

property, the City's expert witness testified that he did not

believe CED's property received any special benefits from the

improvement project:



     14
       CED asserted at oral argument before this court that the
City is judicially estopped from specially assessing CED for
"special benefits" because it conceded no special benefits arose
in the condemnation action. We disagree. Judicial estoppel
"precludes a party from asserting a position in a legal
proceeding and then subsequently asserting an inconsistent
position." State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817
(1996)(citations omitted). The doctrine is equitable in nature,
intended to protect the proceedings against "cold manipulation"
rather than "unthinking or confused blunder[s]." Id. (citations
omitted). Accordingly, "[t]he doctrine is only applied when the
positions   taken   by   a   party  are   truly   inconsistent."
Id. at 350 n.5.

     The City's position in each proceeding is not clearly
inconsistent.    "Special benefits" in condemnation actions are
limited to immediate or imminent increases to a property's fair
market value.    The City is not specially assessing CED on the
basis of an increase in the fair market value of CED's property.
If the City successfully establishes the conferral of special
benefits on CED's property, based on the asserted "substantial
increase[s] in accessibility, which includes safer, lower cost,
and   shorter   travel   times   for    customers,   deliveries   and
employees," then the City may levy and collect a special
assessment    upon    CED's    property,     provided    the    other
prerequisites——the    improvement    is   local   and   the   special
assessment is reasonable——are met.


                                   18
                                                                           No.        2016AP474


      Q.   Okay.  In your appraisal here, did you find any
      special benefits to the subject property?

      A.    No.

      Q.   Okay.    Are there                any     special    benefits       to    the
      property in this case?

      A.     I don't believe so.
This testimony does not resolve the issue of special benefits in

the   context      of   a   special          assessment       because    the     record      is

unclear     regarding       whether          the    City's     expert     identified          no

special benefits that affected the property's market value or if

he identified no special benefits whatsoever.

      ¶33    We    conclude       that       "special     benefits"       has       the     same

meaning in each statute, but the failure to raise the issue of

special     benefits        in     an     eminent       domain        action        does     not

necessarily preclude a municipality from levying and collecting

"special       benefits"         via     a     subsequent        special       assessment.

Notably,    in     an   eminent        domain       action,    only    special       benefits

accruing to the property that affect its market value because of

the planned improvement are required to be considered and used

to    offset      the   value      of    the        property    taken.         Wis.        Stat.

§ 32.09(3).        In contrast, special assessments upon property may

be levied and collected for special benefits conferred on the

property by the improvement, regardless of the impact on the

property's market value; Wis. Stat. § 66.0703 is silent on the

subject.

      ¶34    CED    decries       the    inefficiency          and    burden    of    forcing

property owners to "endure" two proceedings; however, the remedy
lies not with the judiciary but with the                             legislature, which

                                               19
                                                                                No.     2016AP474



produced the ostensible problem.                     Perhaps, as CED contends, the

legislature did not intend this result but this court does not

divine      the    legislature's         intentions;      it     interprets           what   the

legislature actually enacted.

      B.      Prerequisites to Police Power Special Assessments

      ¶35     While the City's denial of special benefits in the

eminent      domain     action       does     not    foreclose        its    assertion        of

special benefits in a subsequent special assessment, the City

must satisfy certain requirements in order for its assessment to

be valid.         In order for the City to exercise its police power 15

to   levy    a    special        assessment     on    property       to   pay     for    public

improvements,          three      requirements        must      be    met:            (1)     the

improvement        must     be       local     rather    than        general;         (2)     the

improvement must confer special benefits on the property; and

(3) the assessment must be fair and equitable and in proportion

to the benefits accruing.                First State Bank, 366 Wis. 2d 219, ¶9

(citations         omitted).                 These      three        requirements             are

interdependent.             If    the    improvement      is     deemed      general,        the
inquiry stops and the special assessment is not permissible.                                  If

the improvement is local, the analysis shifts to whether the

property      received       special         benefits.         If    not,       the     special

assessment        is   invalid.         If    special    benefits         are     found,      the

review      moves      to      the      assessment's      reasonableness.                    Each

requirement is addressed in turn.
      15
       It is undisputed that the City exercised its police power
in imposing the special assessments to fund the improvement
project.


                                               20
                                                                                 No.     2016AP474




                       1.        Local versus general improvements

       ¶36    Because       special    assessments           can    be     levied       only   for

local improvements, the character of the improvement must first

be    determined       before       the        propriety      of     the        assessment      is

considered.      Genrich, 268 Wis. 2d 233, ¶9.                      A public improvement

is general in character if it "confers a substantially equal

benefit and advantage on the property of the whole community or

benefits the public at large."                       Duncan Dev. Corp. v. Crestview

Sanitary      Dist.,     22      Wis. 2d 258,         264,    125    N.W.2d 617           (1964).

Typically, general improvements are "financed by general taxes."

Id.    Because a general improvement benefits the whole community,

it    may    naturally       provide       a    benefit      of     some    degree        to   the

affected property.               In contrast, although a local improvement

"may incidentally benefit all the property in the municipality

and    the    public        at    large"       it     "is    made    primarily          for    the

accommodation      and       convenience         of    inhabitants         of    a     particular

area in the community whose property receives a special benefit
from the improvement."              Id. (emphasis added).                 "The fact that an

improvement confers a general benefit on the community does not

mean that certain property cannot benefit specially."                                  Molbreak,

66 Wis. 2d at 699 (first citing Brock v. Lemke, 455 P.2d 1, 3

(1969); then citing 63 C.J.S. Municipal Corps. § 1314) (special

assessment);       see       also     Red       Top    Farms,       177     Wis. 2d        at 829

("special benefit . . . accrues to a property owner in addition

to    the    benefit        enjoyed       by     other      property       owners        in    the
community").
                                                21
                                                                            No.        2016AP474



       ¶37   Because special assessments can be levied only "for

local improvements . . . the circuit court must examine whether

the improvement was local, that is, whether the purpose was to

accommodate       particular           property      owners     and    confer     a    special

benefit."     Park Ave. Plaza v. City of Mequon, 2008 WI App 39,

¶20, 308 Wis. 2d 439, 747 N.W.2d 703 (citations omitted).                                     In

order to be considered local rather than general, the special

benefit must also have "the effect of furnishing an uncommon

advantage    to        a    property     differing       in     kind,    rather       than   in

degree, from the benefits enjoyed by the general public."                                   Id.,

¶17 (citations omitted); Genrich, 263 Wis. 2d 233, ¶14; Petkus

v. State, 24 Wis. 2d 643, 648, 130 N.W.2d 253 (1964).                                       This

concept dates back to 1851, when this court held that "common

advantages        to        the    neighborhood          were      not    chargeable          as

benefits . . . but only such as were peculiar to [the particular

parcel]."     Red Top Farms, 177 Wis. 2d at 826 (citing Milwaukee &

Miss. R.R. v. Eble, 3 Pin. 334, 358 (1851)).                                 The test is

whether the property upon which the special assessment is levied
"has gained a benefit not shared by any other parcel."                                  Id. at

832.

                                  2.     Special benefits

       ¶38   If    an       improvement     is       local    in   character,         the   next

consideration          is    whether      the        improvement      conferred        special

benefits on the subject property.                      Section III.A comprehensively

examines the meaning of "special benefits."                              Additionally, we

note that "a benefit could accrue without any actual use of the
improvement."          Molbreak, 66 Wis. 2d at 701.                   Commercial property
                                                22
                                                                         No.     2016AP474



may receive special benefits from improved traffic safety and

aesthetic improvements to an adjacent public road.                           Id. at 699.

Finally, "the benefits necessary to sustain a special assessment

'must be substantial, certain, and capable of being realized

within a reasonable time.'"               Wm. H. Heinemann Creameries, Inc.

v.   Vill.    of     Kewaskum,      275      Wis. 636,      641,        82    N.W.2d 902

(1957)(citation omitted).

     ¶39     We    also    address     CED's      argument      that         this   court

incorrectly       expanded    "special     benefits"       to   mean     not     only    an

improvement, but also to encompass a "service."                               Duncan, 22

Wis. 2d at 264        (first        citing       14       McQuillin,            Municipal

Corporations       § 38.11    (3d    ed.);     then   citing       48    Am.     Jur.    2d

Special or Local          Assessments     § 1    (1964)).       The expansion of

"special benefits" in Duncan ostensibly to include services was

repeated but not applied by the court of appeals in Genrich, 268

Wis. 2d 233, ¶13, and First State Bank, 366 Wis. 2d 219, ¶20

("[a]n    uncommon     advantage      will      either    increase           services    to

property or enhance its value").                 Notably, Duncan involved an
assessment based on enhanced value of the property as a result

of the improvement.          22 Wis. 2d at 268.

     ¶40     Accepting CED's argument could require us to overrule

Duncan, a step we need not analyze.16                 While it is questionable

whether    services       constitute      "special       benefits"       for     which    a

     16
       Because a roundabout is unquestionably an improvement and
not a service, we defer a thorough analysis of Duncan
Development   Corp.   v.   Crestview   Sanitary   District,   22
Wis. 2d 258, 125 N.W.2d 617 (1964).


                                          23
                                                                 No.   2016AP474



special assessment potentially could be levied,17 the issue is

irrelevant in this case because a roundabout is an improvement,

not   a    service.      "Service"     as     defined   in    § 66.0627(1)(c)

includes:

      snow and ice removal, weed elimination, street
      sprinkling, oiling and tarring, repair of sidewalks or
      curb   and  gutter,   garbage  and   refuse  disposal,
      recycling,    storm    water   management,   including
      construction of storm water management facilities,
      tree care, removal and disposition of dead animals
      under s. 60.23 (20), loan repayment under s. 70.57 (4)
      (b), soil conservation work under s. 92.115, and snow
      removal under s. 86.105.
Construction of a roundabout is not mentioned in the statutory

definition of services and nothing in the list of services is

analogous to a roundabout.           While use of the word "includes"

indicates    that     what   follows    are    examples      rather    than   an




      17
       Under Wis. Stat. § 66.0627(2), a municipality "may impose
a special charge against real property for current services
rendered . . . ." Section 66.0627(1)(c) defines "service." In
contrast, Wis. Stat. § 66.0703 governs the levying and
collection of "special assessments" for "special benefits"
conferred on property by an improvement.        Because special
charges are imposed for services, whereas special assessments
are levied and collected for improvements, the legislature
regards services and improvements as distinct things subjecting
property owners to different taxes:    charges for services and
assessments for improvements.


                                       24
                                                                         No.    2016AP474



exhaustive     list,18     the   associated-words         canon    instructs          that

associated words bear on one another's meaning.                    Brown v. Chi. &

N.W. Ry. Co., 102 Wis. 137, 156, 78 N.W. 771 (1899) ("You may

know the meaning of a term by its associates,——what precedes and

what    follows   it.      When?     Not     in   every    case;        but    when   not

apparent      from   the     language      itself.");       Scalia         &    Garner,

supra ¶24, at 195.         The statutory examples of "services" have in

common the removal or rectification of temporary but recurring

occurrences, such as snow, weeds, and dead animals, along with

repair of sidewalks, curbs, or gutters——but not the construction

of a permanent structure like a roundabout.19                     Contrary to the

City's      characterization,      infrastructure         is      not     a    service.

       18
       "The verb to include introduces examples, not an
exhaustive list." Scalia & Garner, supra note 12, at 132; State
v. James P., 2005 WI 80, ¶26, 281 Wis. 2d 685, 698, 698 N.W.2d
95, 102 (quoting Wis. Citizens Concerned for Cranes and Doves v.
DNR, 2004 WI 40, ¶17 n.11, 270 Wis. 2d 318, 677 N.W.2d 612)
("'Generally, the word "includes" is to be given an expansive
meaning, indicating that which follows is but a part of the
whole.' While courts may sometimes read the word 'includes' as
a term of limitation or enumeration under the doctrine of
expressio unius est exclusio alterius, there must be some
textual evidence that the legislature intended this doctrine to
apply.").
       19
       The reconstruction of the intersection included the
replacement and repair of sidewalks: According to the report of
the Public Works Director and City Manager, "[d]efective
sidewalks section include those with open cracks, offset joints
or other defects that create a hazard to those using the
sidewalk.   Removal of the hazards provides a safe corridor for
pedestrians to access the site." "[R]epair of sidewalks" is
specifically enumerated as a service for which the City may
impose a special charge on real property under Wis. Stat. §
66.0627(2).


                                        25
                                                                              No.    2016AP474



Improved infrastructure may facilitate the delivery of services

to a property but it is not, in and of itself, a service.

                            3.      Reasonableness

       ¶41    The third prerequisite to the exercise of the police

power to levy a special assessment requires a reasonable basis

for the assessment.         An assessment made under the police power

is not limited to the value of the benefits conferred on the

property but must be made on a reasonable basis.                              Steinbach v.

Green Lake Sanitary Dist., 2006 WI 63, ¶13, 291 Wis. 2d 11, 715

N.W.2d       195.     Reasonableness        in        this      context      requires     (1)

uniformity——the        assessment        must         be       fairly     and       equitably

apportioned among all affected properties; and (2) uniqueness——

the assessment on a particular property must be in proportion to

the benefits conferred.          Genrich, 268 Wis. 2d 233, ¶¶20-21.

       ¶42    Multiple methods may be used to achieve uniformity.

Id., ¶21.       The City's selected method must be fair and equitable

and produce an assessment in proportion to the benefits accruing

to the property.        Berkvam v. City of Glendale, 79 Wis. 2d 279,
287,   255     N.W.2d 521   (1977).              In    examining        uniqueness,       the

circuit court must consider the degree, effect, and consequences

of the special benefits.           Id.      "Whether the facts relating to a

special assessment made pursuant to the police power fulfill the

'reasonableness'        standard       is        a     question         of    law . . . ."

Steinbach,      291   Wis. 2d    11,     ¶11.              A   special       assessment    in

substantial excess of special benefits accruing to the property

is an unlawful taking without compensation.                             Wm. H. Heinemann


                                            26
                                                                      No.   2016AP474



Creameries,      275   Wis.   at    640-41    (citing   Vill.    of     Norwood    v.

Baker, 172 U.S. 269, 279 (1898)).

          C. Genuine Issues of Material Fact Exist Regarding the
     Validity of the Special Assessment Levied on CED's Property.
       ¶43   Having set forth the law governing the validity of

assessments, we now apply it to the City's assessment of CED's

property.        CED argues the court of appeals erred in affirming

the    circuit     court's    grant    of     summary   judgment      because     CED

presented sufficient evidence demonstrating disputed issues of

material fact.         The City responds that CED failed to overcome

the presumption of correctness and therefore summary judgment

was proper.       In the case of a special assessment appeal, "where

the assessing body did consider what property would be benefited

by the improvement and assessed according to the amount of the

benefit . . . in the absence of evidence to the contrary there

is a conclusive presumption that the assessment was on the basis

of    benefits    actually    accrued."         Molbreak,   66   Wis. 2d at       696

(emphasis added) (first citing Hennessy v. Douglas Cty., 99 Wis.
129,    139,     74    N.W.   983     (1898);    then   citing     Friedrich       v.

Milwaukee, 118 Wis. 254, 256, 95 N.W. 126 (1903)).                     To overcome

this presumption on appeal to the circuit court,

       the burden is on the objector to show either that:
       (1) The statutory procedure was not followed, or
       (2) that the assessment was not based on benefits, or
       (3) that the assessing authority did not view the
       premises to make such a determination, or (4) for the
       objector to produce competent evidence that the
       assessment is in error.




                                         27
                                                                              No.    2016AP474



Id.     Significantly, the presumption of correctness exists only

in    the    absence      of     evidence     to    the    contrary.         Molbreak,          66

Wis. 2d at 696.

       ¶44       CED    contends      the   affidavit       of    its     expert     witness,

James       C.    Johnson,       raises     genuine       issues     of    material           fact

regarding whether the improvement plan was general or local,

whether          the    project      conferred      special        benefits         on    CED's

property, and whether the assessment was reasonable.                                 The City

dismisses the Johnson affidavit as insufficient to overcome the

presumption of correctness and asserts this matter is controlled

by Park Ave. Plaza, 308 Wis. 2d 439, in which the court of

appeals upheld a grant of summary judgment in favor of the City

because the new road project resulted in increased traffic flow.

We hold that CED overcame any presumption of correctness and

presented          sufficient        evidence      to     raise     genuine      issues         of

material fact regarding whether the improvement was general or

local   and        whether     the    project      conferred       special    benefits          on

CED's       property.          Resolution     of    these       issues    will      determine
whether      the       circuit    court     reaches     the      reasonableness          of    the

assessment on remand.

       ¶45       With respect to the first issue, the City's Initial

Resolution Declaring Intent to Reassess CED's property declares

"[t]he purpose of the project is to reduce congestion at the

intersection,           increase      traffic      safety,        renew    utilities           and

enhance          aesthetics."          Generally,         the     City    identifies           the

sidewalk replacement and repair, concrete paving, new and re-
laid        sewer       laterals,      concrete         driveway         approaches,           and
                                              28
                                                                                   No.     2016AP474



streetscape/landscape                improvements            as     providing           local    and

specific benefits to CED's property.                              The City also points to

the    improved           traffic          flow,        a    substantial           increase       in

accessibility,        and       reduced       congestion          as    local      and    specific

benefits.

       ¶46    In response, CED generally argues the roundabout was

constructed         not    to       benefit       nearby     businesses,           but    for    the

primary       purpose           of         benefiting         the       traveling          public.

Specifically,         CED       proffers          Johnson's        affidavit       as     evidence

contradicting the City's assertion of local benefits.                                       In his

affidavit,     Johnson          denies       the    purpose        of   the     roundabout       was

local, points to a decreased value of CED's property as a result

of its construction, and opines that the project did not improve

the convenience of CED's property or its customers, noting the

safety       issues        created          by      the      reconfiguration              of     the

intersection.             CED       also    points      to    evidence        indicating        that

increased accessibility was not an effect of the reconstruction

project,      citing        testimony         in     the     affidavit        of    the     City's
Assistant Director of Public Works/City Engineer that "[t]he CED

property      has    the     exact         same    access     after      completion        of    the

project as it did prior to the project.                             The driveway access is

in    the    same    location.              The     driveway        access      has      the    same

configuration."

       ¶47    "[T]he inquiry into the nature of an improvement"——

that    is,    whether          a    special       benefit        is    local      or    general——

"presents a question of fact."                          Genrich, 268 Wis. 2d 233, ¶2.
"What may be called a local improvement under one set of facts
                                                   29
                                                                                No.    2016AP474



may well constitute a general improvement in the context of

different facts."                Duncan, 22 Wis. 2d at 265.                  On remand the

finder    of     fact    must       determine          whether     the      purpose     was    to

accommodate CED's property in particular, along with the other

property owners, with the effect of conferring special benefits

on CED's property.

      ¶48      Whether a special benefit has been conferred is also a

question    of     fact.          First     State       Bank,    366      Wis. 2d 219,        ¶20

(citing     Park    Ave.         Plaza,     308       Wis. 2d 439,        ¶20).        "Summary

judgment is improper if specific facts could support a finding

by a reasonable jury that a special benefit does not exist."

Id.   In this case, the testimony of the City's expert witness

during the eminent domain proceeding regarding the absence of

special benefits, coupled with the comparable testimony of CED's

expert    witness,       who       opined       that     "[t]here      is    absolutely        no

benefit to [CED's property] let alone a special benefit" from

the improvement, contradict the City's position in the special

assessment proceeding.                  The existence or absence of a special
benefit     presents         a    question       for     the    factfinder        to   decide.

Hietpas, 24 Wis. 2d at 656.

      ¶49      Here,         Johnson's           affidavit          contains           evidence

contradicting       the       City's      position;        he    insists        the    property

received no special benefits whatsoever.                            Johnson's affidavit

and   appraisal        assert       that    the        placement     of     the    roundabout

actually    impairs       rather         than     benefits       CED's      property     for    a

variety of reasons, including reduced congestion discouraging
impulse     stops       at       fast     food        restaurants,        the     removal      of
                                                 30
                                                                       No.     2016AP474



landscaping that obscured drive-thru traffic for diners inside,

and the lack of direct access to the property for traffic coming

from three directions, potentially causing unsafe lane changes

to access it.     Johnson opines that the roundabout's construction

overall reduced the value of CED's property.                      The City disagrees

with Johnson's assessment and points out that the roundabout

improved     traffic    flow     through       the    area,       improved    existing

sidewalks and landscaping, and made the area safer.                             In his

affidavit, Johnson refutes the notion that the landscaping on

the central island of the roundabout increases the value of

CED's property, noting that CED possesses no property rights in

landscaping, which could be changed at any time.

    ¶50      Johnson's affidavit "cuts to the heart of the matter

and creates a genuine issue of material fact" rendering summary

judgment    inappropriate.         Genrich,       268       Wis. 2d 233,      ¶17.     A

reasonable    jury     could    find   that      CED's      property    received      no

benefits at all from the reconfigured intersection or it could

find that CED received the exact same benefits as the public at
large.     Park Ave. Plaza is distinguishable because the property

owner presented "nothing to rebut the City's conclusion that

commercial    properties       received    special       benefits."          Id.,    ¶26.

Here, CED presented Johnson's evidentiary affidavit.                           Because

disputed    issues     of   material      fact       must    be    resolved    by    the

factfinder, summary judgment was improper.

    ¶51      Additionally, CED contends that the assessment imposed

upon it was unreasonable because it was unfairly and inequitably
apportioned    among    similarly      situated       property      owners.         CED's
                                          31
                                                                                 No.       2016AP474



$40,103.03 assessment was twice as much as any other assessment.

The    City    responds        that      it       performed      a    "per      lineal       foot"

assessment and justifies the higher assessment on CED's property

because it sits on the corner.                         Accordingly, it has footage on

both Murdock and Jackson Streets.                        While the reasonableness of

the assessment presents a question of law, the analysis depends

upon     resolution          of     the       first        two       issues.               Because

"'[r]easonableness'           turns      on       the    totality     of     the       facts    and

circumstances" this issue "is not easily disposed of on summary

judgment."      Preloznik v. City of Madison, 113 Wis. 2d 112, 122

n.3, 334 N.W.2d 580 (1983) (citation omitted).                                  In this case,

the issue of reasonableness cannot be disposed of on summary

judgment because issues of fact related to the character of the

improvement and whether it conferred any special benefits on

CED's property must first be resolved.                          Specifically, the trier

of fact must determine what, if any, benefits CED's property

received       in     order       to     determine          if       the     assessment          is

proportionate         to    those      benefits          compared     with      the        benefits
accruing       to     all      benefited           properties.             Steinbach,           291

Wis. 2d 11, ¶20.

                                       IV. CONCLUSION

       ¶52    The term "special benefits" means the same in both the

eminent domain statute, Wis. Stat. § 32.09(3), and the special

assessments         statute,      Wis.       Stat.       § 66.0703(1)(a):              "uncommon

advantage."         Under § 32.09(3), only those special benefits that

affect   the    market       value      of    a    property      because        of     a   planned
improvement         must     be     considered            and    used      to      offset       the
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compensation           owed    to       the   owner        of    property         taken       for   the

improvement.           Section 66.0703(1) permits a municipality to levy

and   collect       a    special         assessment            upon       property      for   special

benefits        conferred           upon      the        property         by    an      improvement,

regardless of the improvement's effect on the property's market

value.          Because       of    this      distinction,            a    governmental        body's

failure to raise special benefits in the eminent domain action

does not foreclose its ability to levy and collect a special

assessment upon a property for special benefits conferred.

      ¶53       The circuit court improperly entered summary judgment

in the City's favor in light of CED's submission of evidence

challenging the validity of the special assessment, which showed

a genuine dispute regarding whether the improvement plan was

general     or     local       and      whether      the        project        conferred      special

benefits on CED.              Each of these issues must be decided by the

trier      of    fact.             If   the     factfinder            on       remand    finds      the

improvement was local and conferred a special benefit on CED's

property,        the    circuit         court   will        then      determine         whether     the
assessment was reasonable as a matter of law.

      By    the    Court.—The            decision         of    the       court   of     appeals     is

reversed and the cause is remanded to the circuit court.




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       ¶54    SHIRLEY S. ABRAHAMSON, J.                  (dissenting).              The court

of appeals got it right.                 The majority errs.

       ¶55    I write separately to make two points.

       ¶56    First,       the    court    of    appeals   (correctly)             made     clear

that       although       "'[s]pecial      benefits'       in    the    eminent           domain

context      and    the    special      assessment      context     [are]          similar    in

definition, they are distinct and different considerations under

distinct      and     different      governmental       actions."1            The     majority

recognizes         that    unlike    in    condemnation         proceedings,          "special

benefits" in eminent domain proceedings must affect the market

value of the property.              Majority op., ¶33.

       ¶57    Second,         the       majority      stumbles         by         failing     to

acknowledge         that    CED     has    not      overcome     the    presumption           of

correctness of the City's actions and has not established a

genuine issue of material fact to overcome summary judgment.

       ¶58    I agree with Chief Judge Lisa Neubauer, who emphasized

these points in her concurrence in the court of appeals:                                  "[CED]

has failed to show by 'strong . . . clear and positive proof'
that the $20,000 special assessments are not reasonable——given

that it is undisputed that improvements to the sidewalks, curb

and    gutters,        etc.      have     been      made——and     the        reasonableness

analysis requires only that CED's property be 'benefited to some

extent' and that the amount of the assessment can exceed the

value of the special benefits."2
       1
       CED Props., LLC v. City of Oshkosh, No. 2016AP474,
unpublished slip op., ¶24 (Wis. Ct. App. Jan. 18, 2017).
       2
           CED Props., unpublished slip op., ¶29.


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    ¶59   The City is entitled to summary judgment.

    ¶60   For these reasons, I dissent.

    ¶61   I   am   authorized   to   state   that   Justice   ANN   WALSH

BRADLEY joins this dissenting opinion.




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