2010 WI
App 45
court of appeals of
published opinion
Case No.: |
2009AP1042 |
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Complete Title of Case: |
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Edgerton Contractors, Inc., Plaintiff-Respondent, v. City Of Defendant-Appellant. |
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Opinion Filed: |
February 17, 2010 |
Submitted on Briefs: |
December 01, 2009 |
Oral Argument: |
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JUDGES: |
Curley, P.J., Fine and Kessler, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the defendant-appellant, the cause was
submitted on the briefs of George M. Schimmel and Timothy L. Lyons of O’Neill, Schimmel, |
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Respondent |
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ATTORNEYS: |
On behalf of the plaintiff-respondent, the cause was
submitted on the brief of Richard J. Lewandowski and Eric Meier of Whyte
Hirschboeck Dudek S.C. of |
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2010 WI App 45
COURT OF APPEALS DECISION DATED AND FILED February 17, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Edgerton Contractors, Inc., Plaintiff-Respondent, v. City Of Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 KESSLER, J. The City of
BACKGROUND
¶2 The Milwaukee Metropolitan Sewerage District (“MMSD”) solicited bids for a public works contract to construct earthworks (primarily a large detention basin) on County-owned grounds in the City of Wauwatosa, in order to abate flooding problems and increase safety along the Menomonee River. Edgerton was awarded the contract, which required that Edgerton obtain necessary permits. One permit required by Wauwatosa Municipal Code (“WMC”) § 24.57.090 (2006)[1] was an erosion control permit, which Edgerton applied for in June 2006.
¶3 Edgerton’s permit application was processed consistent with the general erosion control permit process, pursuant to which an application is filed and an application fee is paid, the application is reviewed by various departments, an inspection fee is calculated based on the applicable Consolidated Fee Schedule, and the permit is issued upon payment of the inspection fee (with credit given for the application fee).[2] The 2006 Consolidated Fee Schedule applicable to erosion control permits required an application fee of $45 and an inspection fee of seven dollars per one thousand square feet of disturbed land area.[3] Based on the one hundred and forty-four acres of land that Edgerton’s project would disturb, the City charged Edgerton an inspection fee of $43,908. Edgerton protested the fee as unreasonable and excessive, paid the fee under protest and subsequently brought this declaratory judgment action against the City seeking a refund of the fee.
¶4 The parties engaged in discovery, which included the
deposition of David M. Wheaton, Chief Building Official for the City of
¶5 Edgerton moved for summary judgment. First, it argued that “there was no lawful
basis for the City to charge a permit fee[[4]]
for the project” because the City’s erosion control ordinance did “not include
the words ‘permit fee’ anywhere.” (Some
capitalization omitted.) Edgerton reasoned
that because Wis. Stat. § 62.234
(2007-08),[5]
the statute that authorizes cities to enact erosion control ordinances,
provides in subsection (4)(c) that an ordinance enacted pursuant to § 62.234
“supersedes all provisions of an ordinance enacted” pursuant to Wis. Stat. § 62.23[6]
(the more general city planning statute), then the
¶6 In the alternative, Edgerton argued that even if the City could charge an inspection fee, the actual fee charged “was excessive and was unreasonable.” Edgerton suggested that a more reasonable fee would be $5000, the amount that is now the maximum fee under the amended Consolidated Fee Schedule.
¶7 In response,[7] the City asserted that Edgerton’s arguments were meritless and that its action should be dismissed. First, the City took issue with Edgerton’s interpretation of Wis. Stat. § 62.234(4)(c), arguing that only “certain enactments pursuant to [Wis. Stat. §] 62.23” can be superseded, and that fee schedules adopted by resolution of the City’s Common Council are not among them. The City explained:
[I]f the City passed an ordinance by the authority of § 62.23 relating to construction soil erosion control or storm water management, [that ordinance would have been] displaced by [WMC] Chapter 24.57, [which was] enacted pursuant to § 62.234.
... [B]ecause there never existed any erosion control or storm water management ordinances before Chapter 24.57 was enacted and because none of the erosion control inspection fee administrative matters were enacted pursuant to § 62.23, [§ 62.234(4)(c)] is inapplicable and irrelevant to the circumstances here.
(Emphasis omitted.)
¶8 With respect to the reasonableness of the inspection fee, the
City argued that the methodology resulting in an inspection fee of seven
dollars per one thousand square feet of disturbed land area was “reasoned and
fair.” The City relied on
¶9 The trial court concluded that the City should have included a fee schedule in WMC ch. 24.57, the City’s erosion control ordinance. Further, the trial court concluded that the inspection fee in the 2006 Consolidated Fee Schedule was unreasonable. It concluded that a reasonable fee in this particular case would have been $5000 (the amount of the current maximum inspection fee) and ordered the City to return to Edgerton its inspection fee minus $5000, plus prejudgment interest and costs. The City appeals.
STANDARD OF REVIEW
¶10 On appeal, we review the grant of summary judgment de novo, applying the same methodology
as the trial court. Green Spring Farms v. Kersten,
136
DISCUSSION
¶11 At issue in this appeal is whether the City can impose on Edgerton the erosion control inspection fee detailed in the 2006 Consolidated Fee Schedule and, if so, whether the fee imposed was reasonable. We examine each issue in turn.
I. Whether WMC ch. 24.57 supersedes the erosion control
inspection fee listed in the 2006 Consolidated Fee Schedule.
¶12 The first issue presented is whether the erosion control inspection fee contained in the 2006 Consolidated Fee Schedule that the City adopted by resolution is superseded by WMC ch. 24.57, such that the failure to explicitly list the fees applicable to erosion control projects in ch. 24.57 means that the City cannot charge an inspection fee. Edgerton argues that the inspection fee is superseded by ch. 24.57, citing Wis. Stat. § 62.234(4)(c), which provides that an erosion control ordinance adopted pursuant to § 62.234 “supersedes all provisions of an ordinance enacted under s. 62.23 that relate to construction site erosion control at sites where the construction activities do not include the construction of a building or to storm water management regulation.” Edgerton explains:
[T]he plain language construction of [§] 62.234 and its subparts is that if cities are to regulate construction site erosion control, they must do so through the ordinance adoption process. Further, once a specific erosion control ordinance is adopted, it controls over any other general ordinances which may otherwise have dealt with erosion control.
....
The City exercised its statutory right to create an erosion ordinance.... [B]y doing so, it was obligated to set forth the complete mechanism governing erosion control within the four corners of the ordinance.
We are not convinced.
¶13 The plain language of Wis. Stat. § 62.234 contains no prohibition against imposing municipal fees for services in connection with erosion control projects, and it does not mandate that fees be listed “within the four corners of the ordinance,” as Edgerton asserts. Indeed, the statute does not even mention fees.
¶14 Further, as to Edgerton’s supersession argument, we note that Wis. Stat. § 62.234(4)(c) states only that an ordinance adopted under Wis. Stat. § 62.23 “that relate[s] to construction site erosion control at sites where the construction activities do not include the construction of a building or to storm water management regulation” is superseded by an ordinance adopted under § 62.234. It is undisputed that the 2006 Consolidated Fee Schedule, which listed the fees associated with obtaining an erosion control permit, was adopted via resolution and is not an ordinance enacted under § 62.23. Therefore, consistent with the plain language of § 62.234(4)(c), the 2006 Consolidated Fee Schedule is not superseded by the City’s erosion control ordinance.
¶15 For these reasons, we reject Edgerton’s assertion, and the trial court’s conclusion, that the enactment of an erosion control ordinance supersedes the City’s 2006 Consolidated Fee Schedule, as well as the related assertion that the erosion control ordinance’s failure to specify permit fees means the City cannot impose any fees related to erosion control permits. The next issue, then, is whether the fee imposed was reasonable.
II. Reasonableness
of the inspection fee imposed.
¶16 The law distinguishes between taxes and fees. “A tax is one whose primary purpose is to
obtain revenue, while a license fee is one made primarily for regulation and
whatever fee is provided is to cover the cost and the expense of supervision or
regulation.” State v. Jackman, 60
¶17 These principles have also been addressed in Wis. Stat. § 66.0628(2), which
provides that “[a]ny fee that is imposed by a political subdivision shall bear
a reasonable relationship to the service for which the fee is imposed.” In Rusk v. City of Milwaukee, 2007 WI
App 7, 298
¶18 In this case, both parties relied on the deposition of
¶19 When asked whether “the permit fee is intended to recover most,
if not all, of the direct and indirect costs associated with the erosion
control permit,” Wheaton said no and explained that the intent was “[t]o
recover a portion of the services provided by the City as a whole.” The record provides no evidence of what those
“City as a whole” services were or how, if at all, they are part of the City’s
erosion control program that is supported by collection of the inspection
fee.
¶20 When asked whether the $43,908 fee that Edgerton was charged
“was a larger dollar amount than needed to satisfy the goal of recovering
services provided by the City,” Wheaton said no and explained that “[t]he fees
generated by the City, particularly to Building and Safety ... offset the cost
of services provided by the City as a whole.”
¶21
¶22 Based on
¶23
¶24 In summary, the record contains conflicting assertions and
opinions, and lacks the factual development needed to analyze whether the
inspection fee “bear[s] a reasonable relationship to the service for which the
fee is imposed.” See id. Based on our review of the record, we
conclude “that there are genuine issues of material fact and reasonable
alternative inferences that may be drawn from undisputed material facts in this
case.” See Village of Hobart, 281
CONCLUSION
¶25 We reverse the judgment. We agree with the City that the fee schedule for erosion control inspection fees was properly established, and we therefore reverse the trial court’s conclusion to the contrary. We also reverse the trial court’s determination on summary judgment that the inspection fee was unreasonable, but we decline the City’s invitation to dismiss Edgerton’s action to recover its payment of the inspection fee. Instead, because “there are genuine issues of material fact and reasonable alternative inferences that may be drawn from undisputed material facts in this case,” see id., ¶20, we remand for a determination of the reasonableness of the inspection fee.
By the Court.—Judgment reversed and cause remanded with directions.
[1] Wauwatosa Municipal Code § 24.57.090 provides in relevant part:
Permit
application, erosion control plan, and permit issuance on lands other than
street r.o.w....
No landowner or land user may commence a land development or land disturbing activity subject to this chapter without receiving prior approval of an erosion control plan for the site and a permit from the building regulations department. At least one landowner or land user controlling or using the site and desiring to undertake a land development or land disturbing activity subject to this chapter shall submit an application for an erosion control permit and a control plan and pay an application fee to the building inspector. By submitting an application, the applicant is authorizing the city or other agent authorized by the city to enter the site to obtain information required for the review of the erosion control plan.
Wauwatosa Municipal Code ch. 24.57 has not been amended since 1993. Therefore, all references to ch. 24.57 are to the current version.
[2] The Consolidated Fee Schedule covers fees for services provided by what
appear to be all city departments, including Administration, Assessor, Building
and Safety Division, City Clerk’s Office, Comptroller/Treasurer’s Office, Information
Systems, Fire Department, Health Department, Library, Planning, Police
Department, Public Works Department, Purchasing and Parks—Facilities Rental. The Consolidated Fee Schedule shows the fees
charged in 2004, 2005, and 2006 and identifies when the fees were last
updated. For example, under
“Administration,” rental fees are set for various rooms in the municipal
building and were last updated at various times between 1995 and 2002.
[3] The 2006 Consolidated Fee Schedule also lists a $200 fee for each non-residential building involved in an erosion control project, but that fee was not assessed in this case.
[4] The parties use a variety of terms to describe the $43,908 fee that Edgerton was charged to secure the erosion control permit, including “inspection fee” and “permit fee.” Except when quoting the parties, we will refer to the challenged fee as “the fee” or “the inspection fee.”
[5]
Wisconsin Stat. § 62.234 provides in relevant part:
Construction site erosion control and storm water management zoning....
(2) Authority to enact ordinance. To effect the purposes of s. 281.33 and to promote the public health, safety and general welfare, a city may enact a zoning ordinance, that is applicable to all of its incorporated area, for construction site erosion control at sites where the construction activities do not include the construction of a building and for storm water management. This ordinance may be enacted separately from ordinances enacted under s. 62.23.
(4) Applicability of city
zoning provisions. (a) Except as otherwise
specified in this section, s. 62.23 applies to any ordinance or amendment to an
ordinance enacted under this section.
(b) Variances and appeals regarding construction site erosion control or storm water management regulations under this section are to be determined by the board of appeals for that city. Procedures under s. 62.23 (7) (e) apply to these determinations.
(c) An ordinance enacted under this section supersedes all provisions of an ordinance enacted under s. 62.23 that relate to construction site erosion control at sites where the construction activities do not include the construction of a building or to storm water management regulation.
[6] Wisconsin Stat. § 62.23 is the comprehensive city planning statute and contains provisions on a variety of topics, including zoning. Amendments made to § 62.23 during the pendency of this case are not relevant to this appeal, so we refer to the 2007-08 version of § 62.23 for ease of reference.
[7] The City did not file a motion seeking summary judgment in its favor, but it asserts on appeal that its opposition to Edgerton’s motion was “in essence ... a cross-motion for summary judgment.”