*1 Shirley Albright, Richard Ahrens, Ahrens, Robert Shirley Albright, Allen, Barbara Allen, Nicholas Allen, Dolores June Ann Ander Amell, Arnold Augustyniak, son, Anderson, Loraine John Mar garet Augustyniak, Bates, Milton Helen Bates, Robert Bauer, Bauer, Gail David Karen Bear, Bear, Michael Pat Bellettiere, Bellettiere, Otto Benz, Black, Black, Glen Melaine Blan Edward Kathy Blazyk, chard, Jane Blanchard, Nordine Nancy Jim Bolstad, Bolstad, Diana Booker, Virginia Kathy Booker, Boswell, Boszko, Robert Mary Boszko, Brake, Donald Brake, Albert Brue ggeman, Mary Brueggeman, Ann Burrow, Fred
Rosemary Campbell, Burrow, Wallace Donald Gary Curry, Childers, Clark, Robert Ilona Clark, Curry, Lyla Sandra Donald Em Dahlke, Dahlke, ery DeRosier, DeRosier, Luvern M.A. DiMarcan Duessing,
tonio, Thomas Draws, Vernon Dean Donna Eveland, Farmer, Lewis Kath Eveland, Finger, Finger, leen Farmer, Louis Loretta Robert Foley, Mary Foley, Fisher, Fisher, Jean Mike Lou Foudray, Milly Foudray, Charles Franke, Diane Wayne Bill Janet John Neff, Frantz, Frantz, Sandy Fritz, Paul Gauer, Gauer, Gehrt, Gene Jane Giardina, Antonino Rose Gehrt, Giardina, Giardina, Frank Donald Ginchoff, Patricia Gin Gray, Gray, choff, Goff, Sandra Kenneth Jane Ri Gross, chard Jane Wilbur Gross, Groth, Lois Gruspier, Groth, Gruner, Caroline Joe Alice Grus Shirley pier, Hanlon, Gurholt, Robert Donna *2 Hefka, Hefka, Donald William Gail Hanlon, Mary Hill, K. Heidner, Hill, Helen Jack Heidner, Hinchley, Marge Hinchley, Hoefs, Darwin Edward Philip Judy Hoke, Howard, Bill Rita Hoefs, Hoke, Arlene Huber, Huber, Albert Howard, Helen Jinny Craig Huffstutler, Huffstutler, Dean Hughes, Hughes, Hughes, Mar Sandra Edward Hughes, Terry Hurm, Lenard Hurm, lene Susan L. Jendal, Johnson, Edith Herman Jendal, W Mary Kaszubowski, Steven Kosta Kane, Edward Maryellen Kozina, Walter Kozina, Francis
kos, Kruszynski, Joseph Kruszynski, Kucher, Loretta Linde, William Kucher, LaPlant, Ruth Elaine Timothy Liv, Mike Tina Liv, Lockard, Christine Ralph Lowe, Lowe, Dawn Lus Lockard, Richard Lytle, Lytle, Rita Lussier, Theresa James sier, Mason, Mason, Marshall Mat Donald Barbara ijevich, Mayer, Betty Mayer, James Mc C. James McCarthy, Carthy, McGraw, Elizabeth Albert Eve lyn McGuire, Thomas Howard McGraw, A. McIntosh, McIntosh, Meinzer, Rosetta William Joseph Melzer, Michalowski, Micha Marion Rose Raymond Murphy, Murphy, lowski, Lillian Walter Mysliwiec, Mysliwiec, Negus, Marcia Clarence Negus, Jack Nelson, Nickel, Imelda Edwin Carl Niemann, Niemann, Obukowicz, Linda Marion Par Obukowicz, Olson, Grace Patricia Michael Peterson, Linda Diane sons, Parsons, Thomas Craig Pearson, JoAnn Melvin Peterson, Pearson, Peterson, Ruth William Jackie Peterson, Pflanz, Pflughaupt, Caryl Pflughaupt, Leonard Pflanz, Phillips, Carolyn Phillips, Wallace Pierce, Donald Phillip Pierce, Jeanne Pi Piotrowski, Deborah Piejda, Mary Piejda, Leonard otrowski, Brian Kathryn Joyce Pluta, Pluta, Homer Proctor, Proctor, Michael Richard Vin Rausch, Renaud, Wayne Renaud, Rice, cenette Rice, Dolores John Riley, Riley, Rippberger, Annette Norman Bar Rippberger, Rogers, Eugene bara Dale Romanski, Hugh Ryan, Ilene Romanski, Rother, James Carl Nancy Schimka, Roman Clar Schmidt, Schmidt, Joyce Schultz, ence Schultz, Schultz, Warren George Schultz, Harriet T. Lemke Schumert, Shelley, Schurmann, Glenn Short, Robert Rosa Gary Short, Shulz, Shulz, Carol D. Sim Louis *3 George mons, Lillian C. Simmons, Jr., Mar Sims, Ray Staley, Beverly Smith, vin E. Ronald Solner, Staley, Frank Mi Stefaniak, Stefaniak, Londine Joseph lan Corinne Sulaver, Sulaver, Szamlewski, Wesley Barbara Szamlewski, Tanner, Carmelia Tanner, Ronald Theis, Theis, Jean Martin Tiva Stephen
dor, Tivador, Doris Charles Tobolic, Josephine Joyce Ulam, David Ulam, Wallestad, Lloyd Wallestad, Weber, Weinmann, Thomas Harry Whitney, Weinmann, Madeline Donna Whitney, Wirt, Sr., Robert Robert Mari Jr., Wirt, lyn Jyles Lynn Hubert J. Wirt, Womack, Womack, Wright, Mary Wright, Young, Fay Young Jerome Anthony Zappia, Plaintiffs-Appellants-
Petitioners, v. Defendant-Respondent. Town of Fulton, Albright, Shirley Ahrens, Robert Richard Ahrens, Shirley Albright, Allen, Allen, Nicholas Barbara Ander Amell, June Ann Arnold Allen, Dolores Augustyniak, Mar John son, Anderson, Lorraine garet Augustyniak, Bates, Bates, Helen Milton Karen Bauer, Bauer, Bear, Gail David Robert Black, Melaine Benz, Black, Glen Bear, Otto Nancy Kathy Blazyk, Bolstad, Bolstad, Nordine Virginia Boswell, Rob Booker, Diana Booker, Jim Mary Kathy Brake, Boszko, Donald Boszko, ert Mary Bruegge Brueggeman, Ann Brake, Albert Rosemary man, Burrow, Burrow, Wallace Fred Campbell, Ilona Clark, Robert Childers, Donald Curry, Curry, Gary Dahlke, Sandra Donald Clark, Emery Lyla DeRosier, Luvern DeRosier, Dahlke, DiMarcantonio, Draws, M.A. Thomas Vernon Duesing, Farmer, Louis Lewis Kathleen Farmer,
Finger, Finger, Jean Fisher, Loretta Robert Milly Foudray, Foudray, Bill Fisher, Neff, Charles Wayne Frantz, Diane Janet John Franke, Frantz, Sandy Gauer, Gehrt, Gene Fritz, Gauer, Paul Giardina, Giardina, Antonino Rose Gehrt, Jane Ginchoff, Frank Donald Patricia Gin Giardina, Gray, Gray, Ri Kenneth Jane choff, Goff, Sandra Lois Gross, Gross, Groth, chard Jane Wilbur *4 Gruspier, Gruspier, Alice Donna Groth, Joe Shirley Gurholt, Hanlon, William Hanlon, Robert Hefka, Heidner, Donald Helen Hefka, Gail Mary Hinch Heidner, Hill, Hill, Jack K. Edward ley, Hinchley, Judy Marge Hoefs, Hoefs, Darwin Philip
Bill Helen Howard, Rita Hoke, Hoke, Howard, Huber, Albert Arlene Huber, Dean Huff Jinny Hughes, stutler, Huffstutler, Edward San Hughes, Hughes, Hughes, dra Edward Marlene Terry Hurm, Susan Hurm, Jendal, Lenard Edith Mary Jendal, Herman L. Johnson, Kane, Edward Kaszubowski, Steven Kostakos, Kozina, Francis Maryellen Kruszynski, Kozina, Walter Loretta Kruszynski, Joseph Kucher, Ruth Kucher, Elaine Timothy LaPlant, William Linde, Liv, Christine Ralph Lytle, Liv, Lussier, Lussier, Theresa James Lytle, Rita Mason, Donald Mason, Barbara Mar Matjevich, Mayer, Betty Mayer, shall C. James McCarthy, McCarthy, James Elizabeth Albert Evelyn McGraw, McGraw, McGuire, Thomas Will iam A. Burness Meinzer, Melton, Juanita Melton, Joseph Marion Melzer, Michalowski, Rose Micha Raymond Murphy, Murphy, lowski, Lillian Walter Mysliwiec, Mysliwiec, Negus, Marcia Clarence Negus, Imelda Edwin Carl Nelson, Nickel, Jack Linda Niemann, Niemann, Marion Obukowicz, Parejko, Grace Obukowicz, Willard Par Michael Linda sons, Parsons, Peterson, Thomas Diane Peterson, Pflanz, William Pflanz, Jackie Leonard Pflughaupt, Caryl Pflughaupt, Phillips, Wallace Carolyn Phillips, Pierce, Pierce, Donald Jeanne Kathryn Pluta, Brian Pluta, Rausch, Michael Ri Wayne chard Renaud, Renaud, Rice, Vincenette Riley, Riley, Dolores Rice, John Annette Norman Rippberger, Rodgers, Rippberger, Barbara Dale
Eugene Romanski, Romanski, Ilene James Hugh Ryan, Rother, Schimka, Carl Roman *5 Joyce Nancy Schmidt, Schultz, Clarence Schmidt, George Harriet Schultz, Schultz, Schultz, Warren Shelley, Rosa Short, Robert Shumert, T. Glen Gary Louis D. Sim Shulz, Shulz, Carol Short, George Sims, Mar Simmons, Jr., C. mons, Lillian Staley, Beverly Ray Solner, Smith, vin Ronald Staley, Mi Stefaniak, Stefaniak, Frank Londine Joseph Szamlewski, Sulaver, Corinne Sulaver, lan Wesley Tanner, Carmelia Szamlewski, Barbara Theis, Jean Martin Tiva Theis, Ronald Tanner, Stephen Tobolic, dor, Tivador, Doris Charles Joyce Josephine Ulam, Wallestad, Ulam, David Whitney, Lloyd Harry Donna Weber, Wallestad, Marilyn Whitney, Jr., Wirt, Robert Robert Wirt, Lynn Jyles Womack, Hubert J. Womack, Wirt, Young, Young Wright, Mary Wright, Fay Jerome Anthony Plaintiffs-Appellants- Zappia, Petitioners, v. Defendant-Respondent. Fulton, Town Albright, Shirley Robert Ahrens, Richard Ahrens, Albright, Shirley Allen, Allen, Barbara Nicholas Ann Amell, June Arnold Ander Allen, Dolores Augustyniak, Mar Anderson, John son, Lorraine garet Augustyniak, Bates, Bates, Milton Helen Bauer, Bauer, Bear, David Karen Robert Gail Otto Bellettiere, Bellettiere, Michael Pat Bear, Edward Blan Benz, Black, Melanie Black, Glen Kathy Blazyk, Blanchard, Jane Nordine chard, Nancy Jim Bolstad, Booker, Diana Bolstad, Virginia Kathy Booker, Boswell, Robert Boszko, *6 Mary Donald Boszko, Brake, Brake, Albert Brue ggeman, Mary Brueggeman, Ann Fred Burrow,
Rosemary Campbell, Wallace Burrow, Donald Curry, Gary Childers, Clark, Robert Ilona Clark, Curry, Lyla Sandra Donald Em Dahlke, Dahlke, ery DeRosier, Luvern M.A. DeRosier, DiMarcan Duesing, Thomas
tonio, Draws, Vernon Dean Eveland, Donna Kath Eveland, Lewis Farmer, Finger, Finger, leen Farmer, Louis Loretta Robert Mary Foley, Foley, Jean Mike Fisher, Fisher, Lou Foudray, Milly Foudray, Bill Charles Diane Neff, Wayne Franke, Frantz, Janet Frantz, Fritz, John Sandy Gauer, Paul Gauer, Gehrt, Gene Jane Ge hrt, Giardina, Antonio Giardina, Rose Frank Gia rdina, Donald Ginchoff, Patricia Ginchoff, Sandra Gray, Gray, Kenneth
Goff, Jane Richard Gross, Jane Gross, Wilbur Groth, Groth, Lois Caroline Gruspier, Gruspier,
Gruner, Joe Alice Donna Shirley Robert Gurholt, Hanlon, Hanlon, William Hefka, Hefka, Gail Donald Heidner, Helen Mary Jack Heidner, Hill, Hill, K. Edward Hinch ley, Marge Hinchley, Judy Hoefs, Darwin Hoefs, Phillip
Bill Hoke, Hoke, Rita Howard, Helen Albert Howard, Huber, Huber, Arlene Dean Huff Jinny Hughes, Craig stutler, Huffstutler, Sandra Hughes, Hughes, Hughes, Terry Edward Marlene Susan
Hurm, Hurm, Lenard Edith Jendal, W. Mary Herman Jendal, Johnson, Kane, L. Edward Kaszubowski, Kostakos, Dr. Steven Francis Maryellen Kruszynski, Kozina, Kozina, Walter Kruszynski, Joseph Kucher, Kucher, Ruth Loretta Timothy Liv, LaPlant, Linde, Elaine William Rich Lockard, Lockard, Tina Liv, Christine Mike Ralph Lussier, Theresa ard Dawn Lowe, Lowe, Lytle, Lytle, Mason, Rita Donald James Lussier, Matijevich, C. James Mason, Marshall Barbara McCarthy, Mayer, Mayer, Betty Elizabeth James Evelyn McCarthy, Tho McGraw, McGraw, Albert McIn Rosetta McGuire, McIntosh, mas Howard Jua Meinzer, Melton, A. Burness tosh, William Joseph Melzer, Michalowski, Melton, nita Marion Raymond Murphy, Lillian Rose Michalowski, Mysliwiec, Murphy, Musliwiec, Walter Marcia *7 Negus, Negus, Nelson, Imelda Edwin Clarence Niemann, Linda Nickel, Niemann, Carl Jack Patricia Obukowicz, Obukowicz, Marion Grace Parejko, Linda Olson, Parsons, Michael Willard Craig Peterson, Peterson, Thomas Diane Parsons, Pearson, Ruth Pearson, Peterson, JoAnn Melvin Pflanz, Pflanz, Jackie Leonard Peterson, William Phillips, Caryl Pflughaupt, Pflughaupt, Wallace Carolyn Phillips, Pierce, Jeanne Pierce, Donald Phillip Deborah Leonard Piotrowski, Piotrowski, Piejda, Piejda, Kathryn Mary Pluta, Pluta, Brian Joyce Michael Proctor, Rausch,
Homer Proctor, Wayne Renaud, Renaud, Rice, Richard Vincenette Riley, Riley, John Annette Rice, Dolores Norman Rippberger, Rippberger, Rother, Barbara James Nancy Clarence Schmidt, Schmidt, Roman Joyce Harriet Schultz, Schultz, Schultz, Warren Shelley, Mar Schurmann, Lemke Schultz, Glenn Wesley Smith, Tanner, vin E. Carmelia Tanner, Stephen Tivador, Martin Doris Tivador, Tobolic, Lloyd Harry Whitney, Whitney, Weber, Donna Marilyn Jyles Robert Wirt, Jr., Wirt, Robert Wirt, Lynn Wright, Mary J. Womack, Womack, Hubert Wright, Young, Fay Young Anthony Jerome
Zappia, Plaintiffs-Appellants-Petitioners,
v.
Defendant-Respondent.
Town
Fulton,
Supreme Court
2,
argument
No. 99-2466. Oral
October
2001. Decided
26,
March
For the was a defendant-respondent there brief by Horowitz, Robert Meg Vergeront and Rosen- Stafford LLP, Madison, baum and oral argument by Robert Horowitz. BABLITCH, WILLIAM A. Richard J. Ahrens
and 136 to 138 other mobile home approximately own- (owners)1 ers from a court appeal appeals' of decision that, that held to all of respect with but one the twenty owners chosen to representative entire represent class, their mobile homes were taxed appropriately as real as to property, personal property as the opposed owners contend. The that a statutes mobile require home must be "set a before upon foundation" it can be
1 parties The total use both and 138 as the number of home in this action. precise owners number is not mobile to appeal. relevant all of the conclude We as real
taxed upon a "set representative homes were mobile owners' meaning the statute. of within foundation"
I-H mobile the classification case involves 2. This pertaining purposes. to property The law tax homes for important note at the outset. to is classification such Stat. under Wis. are defined homes" "Mobile (1997-98)2 66.058(1)(d) follows: as is, originally or was as that which "Mobilehome" is by any motor constructed, transported designed to be equipped designed, and public highway a upon vehicle eating living and sleeping, for primarily and used any used; and includes to be so or is intended quarters, annexes, ap- and attachments, foundations additions, purtenances. purposes, are property mobile homes such tax
For categories: improvements real to into two classified personal property. Wisconsin classification, each criteria for sets forth the 70.043 stating: (1) as defined s. A mobile home Mobile homes.
70.043 if real it is 66.058, improvement is an upon foundation and is set to utilities connected *12 In this the mobile home owner. by land which is owned if it is a foundation" section, upon home is "set a mobile support. other upon some and is set off its wheels (2) 66.058, in is home, defined s. A mobile as is it is located upon if the land which personal property 2 Statutes are to to the All references Wisconsin subsequent otherwise noted. unless the 1997-98 version or if the mobile mobile home owner not owned to foundation or connected not set home is utilities. 70.043(l)-(2). § purposes case, it of this is For Stat.
Wis. 70.111(19)(b) pro- § important Stat. to note that Wis. exemption for some mobile from taxation vides an personal property. This as that are classified homes provides: specifically statute exempted from taxation. Personal
70.111 exempted from in this section is property described general property taxes: (19) Mobile and Recreational Camping Trailers
Homes, (a) defined in s. Camping trailers as 340.01(6m).
(b) 66.058, are homes, in that Mobile as defined s. feet and that are used larger square than 400 no recreational, living for temporary quarters as primarily purposes. or seasonal camping, travel 70.111(19)(b). all of the owners' case, In this Stat. Wis. improvements to real as homes were classified mobile property. brought pursuant to actions Wis. The owners any taxpayers permits recover 74.35, which following provides the This statute unlawful taxes. tax": for an "unlawful definition (1) In Definitions. Recovery of unlawful taxes. 74.35 general property "unlawful tax" means a this section specified one or more errors respect tax with to which 74.33(1) (a) (f) tax" does to were made. "Unlawful in s. alleged defect respect to which not include a tax on the a valuation solely placed the assessor is that is excessive. *13 74.35(1). § Wis. Stat. The claimed that owners errors (c). 74.33(l)(a), (b), § occurred under Wis. Stat. or This provides: statute Sharing charging pal-
74.33 back of taxes due to (1) pable errors. Grounds. After the tax roll has been delivered to the treasurer of the taxation district under 74.03, governing body may s. the of the taxation district any in part general refund or rescind whole or in property roll, including agreed- tax in shown the tax interest, if:
(a) A clerical error has been made in the description computation of the or in the tax. (b) The assessment included real property improve- ments which did not exist on the date under s. 70.10 for making the assessment. (c) exempt by taxation, is law from (2).
except provided as under sub. 74.33(l)(a)-(c). § legal background, Wis. Stat. With this procedural history we next discuss the facts and of this case.
H—I I—H ¶ 4. The owners each own a mobile home located individually-owned development on lots in a real estate known as Wisconsin's Rock River Leisure Estates (Town) County. Town of Fulton in Rock For 1995, years, 1996, and 1997 tax the Town taxed the mobile improvements property, homes as to real as defined 70.043(1). year, under Wis. Stat. For each tax paid owners the taxes and then filed claims with the pursuant 74.35(2), permits Town to Wis. Stat. which property taxpayers recovery to seek of unlawful taxes tax. The that collected the district from the taxation *14 claims. disallowed these Town sepa- year, filed owners also For each tax 5. County Court to recover Circuit actions in Rock rate permitted allowed, as claim not of the the amount 74.35(3)(d). § action, In each the own- under Wis. Stat. exempt have should been claimed that their homes ers 70.111(19)(b) § and personal under Wis. improvements to real as of their homes that taxation Wis. Stat. an error under constituted finding 74.33(1), requiring had a that an unlawful tax the actions court consolidated levied. The circuit been by agreement agreed parties parties. The then of the approximately would serve as 138 owners that 20 of the representative stipulate to certain and would
owners facts.3 following stipulated parties rel- The regarding representative owners. the 20 facts
evant unit," a "basic which on his or her lot Each owner has originally is, or was as of "a structure that consisted by any transported designed motor to be constructed, designed, equipped highway upon public and vehicle living eating, sleeping, primarily and for and used basically quarters." This identical to the is definition definition Wis. Stat. home" under of "mobile Shirley Richard and included representative owners Bear, Bauer, Karen Albert David and Ahrens, Robert and Gail Bolstad, Nancy and Mary Brueggeman, Ann Nordine and Dahlke, Emery Lyla and Boszko, and Kathy Donald Robert and Eveland, Mary Lou and Derosier, Dean and Donna Luvern Hurm, Groth, Terry and Susan Foley, and Lois Michael Wilbur Huffstutler, Heidner, Virginia Dean and and Helen Donald Obukowicz, Liv, Marion and Grace Timothy and Christine Eliza Hugh and Rother, Rupperech, Joseph James and Violet Ulam. Josephine Charles and Ryan, beth 66.058(l)(d). The floor areas of each of these "basic ranges square units" from 372 to 420 feet. Each basic unit still has its wheels attached and is connected to weight utilities. All but four of the units have their at partially partially least on their wheels and on some form stabilizer, such cement blocks, blocks, as cinder jacks. weight or screw Three units have their com- pletely supported by stabilizers. One unit has no stabi- supported only by lizers and is its wheels. Each owner including also has additional decks, screen structures — porches, rooms, and sheds—on their lot that are either freestanding Finally, attached to or from the basic unit. two of the owners reside in their homes for 12 months year; of the three of them for months; seven three of *15 them for months; six one for five and months; one-half one for three months; and the rest for two months of year the or less. summary judgment, 7. The Town moved for Byron,
the circuit court, the Honorable Michael J. granted partial summary judgment. the Town In its decision, the court First, examined two issues. it exam- representative ined whether the owners' mobile homes properly improvements property. were taxed as to real analysis, parties In its the that, court noted because the stipulated had that the homes were connected to utili- by ties and situated on land owned the mobile home only question owner, the was whether the homes were upon requirement, "set a foundation." Under this "a upon mobile home is 'set a foundation' if it is off its upon support." wheels and is set some other Wis. 70.043(1). The court found the terms "off its support" ambiguous wheels" and "set some other and construed the statute to mean that a mobile home improvement majority is an real when the weight support of the of the home is borne some interpretation, From this the other than its wheels. represen- court concluded that there were some of the improperly homes that were tative owners' assessed improvements court, and taxed as to real any regarded however, error in classification as imma- concluding if terial, that, even the had been appraised personal property, the value of the tax as the same. would have been
¶ 8. The second issue that the court examined any representative was whether of the owners' mobile personal property exemp- qualified homes for the tax 70.111(19)(b). analysis, In tion under Wis. Stat. its the all additional court concluded that structures— freestanding even structures that were unattached to determining the basic unit —must be considered square the owners met the 400 foot limitation whether considering the additional under statute. When lots, structures on the the court concluded that representative square owners' homes were all over 400 they qualify not for feet and that therefore personal property would exemption. tax Following decision, the circuit court di- parties regarding to submit additional rected briefs previous remain- the effect of the court's decision on the ing submitted, owners. After briefs were the court supplemental decision and order. In the deci- issued analyzed sion, the court whether the owners had estab- *16 particularly taxes, lished a cause of action for unlawful (b) 74.33(l)(a), § any whether errors under Wis. Stat. (c) including occurred, exempt by and had whether the taxed from taxation. The court was law concluded that the owners had established no cause of result, taxes, action for the refund of unlawful and as a the court all of the owners' actions. dismissed
153 split ¶ appeals 10. In a decision, the court of part, part, affirmed in reversed in and remanded the Fulton, cause with directions. Ahrens v. Town 2000 of App ¶ 268, 1, WI 240 124, Wis. 2d 621 N.W.2d643. Like appeals began analysis the circuit court, the court of its question with the of whether the mobile homes were upon ¶ "set a foundation." Id. at 9. Like the circuit statutory court, the court also found that the definition upon requiring foundation," "set a a mobile home to upon support" be "off its wheels" and "set some other ambiguous. appeals, ¶ was Id. at 11. The court of departed by rejecting however, from the circuit court interpretation the circuit court's of these terms to require "majority weight" a of the of the mobile home to be off its wheels before it would be classified as real appeals ¶ Id. at 12. Instead, the court of held 70.043(1) legislative history that required of Wis. Stat. finding upon a a that mobile home is "set any part weight foundation" when of its is off its wheels support. ¶¶ set some other Id. at 15-16. Applying ¶ 11. test, the court concluded that representative all but one of the mobile homes were properly improvements assessed and taxed as to real they part, "because rest[ed], in whole or in on supports ¶ other than their wheels." Id. at 17. Thus, the court affirmed the circuit court's dismissal of these respect ¶ remaining actions. Id. at 33. With to the any against mobile home, the court concluded that tax pursuant §§ it would unlawful, be to Wis. Stat. 74.33 only exempt and 74.35, if the home was from taxation 70.111(19)(b). under Wis. Id. at In 21. its exemption analysis, departed the court from the circuit by concluding freestanding court additional struc- figuring tures must not be considered in whether the square feet limitation was exceeded. Id. at *17 Despite the conclusion, the court still affirmed this remaining the mobile home circuit court's decision that exempt square in it exceeded 400 feet was not because ¶¶ 25, the action. Id. at size, therefore, and it dismissed nonrepresentative respect owners, to the the 33. With to court reversed and remanded to allow the owners personal property were show that their mobile homes by exempt light and in of the conclusions reached rejected ¶ The the owners' claims court. Id. at 31. court rights that it and the circuit court violated the owners' process equal protection usurped a due and and to by allegedly holding legislative the owners function property personal for taxes that never levied liable were by ¶¶ on the the Town. Id. at 26-29. homes argue that both the circuit 12. The owners now appeals interpreta- in and the court of erred its court 70.043(1). They rely instead on the tion of Wis. Stat. interpretation provided by Judge
Dykman dis- his (Dykman, dissenting). ¶¶ J., sent. See id. at 34-45 Dykman not concluded that the term "offits wheels" is space ambiguous; that there is "off its wheels" means ground. ¶¶ 41-42 the tires and the Id. at between urge adopt (Dykman, dissenting). us to J., owners interpretation that, and to conclude for those representative are not "off owners whose mobile homes under this definition —and are therefore their wheels" levy real taxes not real of —the then assert that the should be held void. The owners against refunded and the taxes these homes should be nonrepresentative of the owners should be actions proceedings on whether their remanded for further improvements properly as mobile homes were taxed real interpreta- conclude, however, We 70.043(1) put of forth owners
tion Wis. Stat. Judge Dykman should not Instead, be followed. adopt interpretation with modification, some we *18 appeals. the court of upon We hold that a mobile home is "set resting a foundation" when the home is for more temporary part, than a time, in whole or in on some support other means of than its wheels. This definition temporary perma- rests on a distinction between recognizing legislature nent, that the intended that the permanency important of the mobile home was making personal prop- a distinction between real and erty. legislature We conclude that intended that anything more than transient location would be permanent accordingly, improvement and, an to real property.
I—I I—I primary question ¶ 14. The in this case is whether properly the Town classified and taxed the owners' improvements property. mobile homes as to real To question, interpret answer we must Wis. 70.043(1) § and determine when a mobile home is properly regarded improvement anas to real improperly If we determine that the Town classified question homes, and taxed the the next is whether this provides recovery misclassification error a basis for under Wis. Stat. 74.35.
¶ grant 15. We review the circuit court's of sum mary judgment. summary judg We review motions for using methodology ment the same as the circuit court. Meyer Colby, v. Sch. Dist. 226 Wis. 704, 708, 2d 595 of (1999). 802.08(2) N.W.2d 339 Wisconsin Stat. sets methodology, stating summary judgment forth this granted pleadings, depositions, shall be "if the answers together interrogatories, file, on with and admissions any, genuine affidavits, if show that there is no issue any moving party material fact and that the is as to judgment of of entitled to as a matter law." Resolution interpretation requires an of several this case also "Interpretation application of of a statute and statutes. ordinarily questions undisputed are a statute to facts independent of the deci- law that this court considers appeals, but of the circuit court and court of sions analyses." Meyer, benefiting from 2d at their Wis. interpreting purpose a stat- 16. "Our sole when legislature." United ute is to discern the intent of the *19 Church, Culver, 55, 26, 243 Inc. v. 2001 WI Methodist begin 394, end, 2d 469. To this we with Wis. N.W.2d language the of the statute. Id. "Courts should resolve statutory ambiguities legislature's so as to advance the legislation." purpose enacting Id. may subject
¶ 17. Mobile homes in Wisconsin be may property personal property, to tax as real or be subject may monthly parking fees, or be to mobile home parking exempt property from taxation and fees. See 70.111(19)(b), 66.058(3)(c), §§ 70.043, Wis. Stat. 70.112(7). determining taxed, or if a unit will In how be the definition we first examine whether the unit meets 66.058(l)(d). parties § home" under The have "mobile stipulated. so de- next examine Wis. Stat. 70.043 to 18. We personal prop- home"
termine whether each "mobile is parties erty improvement real or an stipulated on that the mobile homes at issue are located by home owner and are owned the mobile only question remain- Thus, connected to utilities. ing improvements on whether the homes are to real upon is whether these homes are "set a foun- dation." Again, upon
¶ 19. "a mobile home is 'set a founda- upon tion' when it is off its wheels and is set some other 70.043(1). support." Wis. Stat. We noted above that appeals the circuit court and the court of construed this phrase ways. by in different We find the discussion appeals, majority circuit court and the court of both the opinion very helpful analysis. and the dissent, to our appeals
¶ 20. The court of discussed the different possible interpretations phrase of this as follows: language mean,
This could maintain, as the owners that in order to be deemed an improvement to real property, a mobile home must physi- have its wheels cally removed, or, minimum, at a weight that the entire of the mobile home something must rest on other than Or, mean, its wheels. it could as the argues, Town a mobile home is "off its wheels and ... set some other support" any whenever part weight of its borne is by [something] other than Finally, its wheels. it could mean, concluded, also as the trial court that what is required majority weight is that a of the of the mobile home is support borne some other than its wheels. App Ahrens, 268, 2000 WI Indeed, these different interpretations reasonable dictate that we look to ex- interpret trinsic aids to the statute and seek to advance legislature's purpose interpretation in our of the *20 statute. specifically legislative
¶ history 21. We look to the § of 1983 Wis. 342, Act which enacted Wis. Stat. 70.043. legislative history Legislative Part of this includes a report, legislative pro- Council which discussed various posals by on mobile home taxation that were considered Legislative Special Council Committee on Mobile
158 Zoning. report, Taxation and This which was Home the circuit court and the court of discussed appeals, provides both
significant legisla- evidence that the 70.043(1) § adopted the current test under to ad- ture problems present previ- dress core that were with the statutory Legislative Council, ous test. 20 Wisconsin Legislation Relating to Mobile Home Taxation and (1983). Zoning 3 previous that a home 22. The test stated mobile subject property to taxation real if the value
would be as (additions, improvements attachments, annexes, appurtenances) foundations, and to the mobile home equaled percent of the or more of the assessed value 66.058(1)(e) (discussing Id. mobile home. Wis. (1) (1981-82)). problems it The with this test were that time-consuming was difficult and for the assessors to (2) apply and that it was "not an accurate indicator of given ha[d] home taken on the whether mobile improvement and, therefore, a real character of estate subject property conven- should be taxation as is adopted housing." The tional Id. test that has been 70.043(1) proposed. under Wis. Stat. was therefore discussing test, however, Before the re- distinguishing port real and revisited the reasons for stating: property property purposes, personal for tax sys- property under the tax primary rationale distinguishing personal prop- real and tem for between real erty personal property is more mobile than is property It is easier to enforce and collect property are real than taxes taxes which levied Therefore, upon personal property. are levied which due and the procedures, payment dates assessment property to collect taxes remedies which are available according is classified as differ to whether personal property. real or as *21 20 Legislation Relating Legislative Council, Wisconsin to Mobile Home Taxation and Zoning at 3-4 (emphasis added). The then discussed the report Committee's a test, for new proposal stating: The Committee concluded that a better indicator given than the "50%" test of when a mobile home has taken on the character of real if is the mobile home is hooked to up upon utilities and is set foundation on by land which is owned the mobile home owner. This is the same test by Depart- as is used the (DOR) ment of classify Revenue mobile homes as real property, purposes for of exempting the of sale these mobile 11.88, homes from the sales tax Tax [s. that, Wis. Adm. Code]. The Committee believed under circumstances, these sufficiently mobile home is permanent that it should be taxed as is conventional housing. (second added).4
Id. at 4 emphasis Thus, from this it report, is clear that legislature adopted specific criteria —hooked to utili- up ties and set a foundation on land owned by mobile home owner —to identify mobile homes were sufficiently in permanent nature so as to be Department regulation Revenue provided: (1) personal Tax 11.88 prop- Mobile homes. Mobile home as erty realty improvement. vs. personal property A mobile home is if park it is in place located a mobile home or other where the land by on which the home mobile is located is not owned the mobile realty improvement home A owner. mobile home is a if it is permanently affixed to land owned the owner of the mobile permanently home. It is purposes affixed to the land for sales tax if the mobile home on sits a foundation and is connected to
utilities. "On a sitting foundation" means it off is its wheels and on support. some other 11.88(1) 1981). Wis. (Jan., Admin. Code Tax regarded improvements property. Thus, as to real interpreting requirement that a mobile home must *22 support," be "offits wheels and set some other our objective incorporate must those homes be mobile "sufficiently permanent in that are nature." Mobile any signs permanency homes that do not show of and are fall mobile should outside the definition and be regarded personal property. as arriving a test, however, 25. Before at it is important objections to note the owners' to the court of only weight appeals' required test, of which some of the mobile home to be off its wheels before it would be improvement Echoing property. as an to real classified objection, Judge Dykman's primary dissent, their with agree, effectively which we is that the test eliminated possibility that a mobile home—one that is con- nected to home utilities is situated on mobile qualify personal owner's real ever as —will exempt or from taxation under be Wis. 70.111(19)(b) § they because, assert, a Stat. mobile They entirely home never rests on its wheels. contend entirely that, wheels, if a mobile home is never on its it always improvement will property be classified as an to real appeals'
under the court of test when it is connected to utilities and on the The owner's exemption then is nullified for certain mobile homes may qualify exemption. Judge that otherwise for the Dykman stating: dissent, made this observation his majority
What the has concluded is that no mobile exempted home located on its owner's real estate can be from taxation unless the owner disconnects the mobile majority home from The reaches its utilities. requires percent
conclusion it one hundred because weight the mobile home's to be carried on its wheels 70.111(19)(b)] § exemption [under before the Wis. Stat. applies. But no such mobile home exists. Under Wis. 348.10(5)(c), § all mobile homes must at have thirty-five pounds weight least of their rest on some- thing wheels, other than their and it thirty-five is that pounds majority that disqualify uses to all less, 400-square-foot or landowner-occupied, utility- connected personal property mobile homes from tax- exempt status. legislature
The must have intended to exempt some personal property mobile homes from taxes when 70.111(19)(b). it legislature enacted Wis. Stat. 70.043(1) significance was aware of Wis. Stat. and the of the distinction between mobile per- homes are sonal property and mobile homes that are real estate. legislature Had the utility- wanted to tax small connected mobile homes located on their owners' real *23 estate, 70.111(19). easily § it could have done inso But it did only not. The explanation rational of the exemp- applies tion is that it qualifying to all small mobile homes located on their owners' real estate. App (Dykman,
Ahrens, ¶¶ 2000 268, WI J., 38-39 dissenting). agree Judge Dykman's
¶ 26. We with discussion. argue adopt put The owners that we should the test by Judge Dykman, forth is, that that a mobile home is only weight "set a foundation" when all of its is placed upon type taken off its wheels and some of support. interpretation, pre- This the assert, owners statutory exemption serves the under Wis. Stat. 70.111(19)(b) § appeals' because, unlike the court of test, it allows for some mobile homes, which are con- property, nected to utilities and situated on the owner's qualify personal property. They argue to still as that Judge Dykman's only test that ensures those mobile customary homes that are similar to homes are taxed provides easy apply. and a test that is for assessors to disagree it fails to formulation because with this We only legislative reach intent to account the take into permanency that have taken on mobile homes those the real estate. vis-a-vis any interpretation recognize of Wis. that 27. We 70.043(1) legislature's give § to the effect should exemption homes for some mobile create an
intent to 70.111(19)(b). § note, however, that We under Wis. Stat. harmonizing of difficult because these statutes is Specifi- statutes. criteria examined under both different cally, home location of the mobile 70.043, the under (on utility hook-up, property), and its its the owner's it is real to determine whether foundation are examined 70.111(19)(b), personal the mobile Under or feet) (no square larger and the than 400 home's size home are examined. use of the mobile intended problems some mobile criteria create because different exempt may qualify real as both homes personal property. criteria under A reevaluation of the may appropriate legislature to be these statutes given intended effect. are their statutes ensure "[w]hen with a Nevertheless, confronted duty statutory inconsistency of nature, this it is possible, on the statutes court, when to construe subject to harmonize these in a manner as matter same give provisions effect." each full force and order 519, 276 N.W.2d815 Sheldon, 509, Wis. 2d v. Glinski (19.79). *24 70.043(1) re- 29. conclude that Wis. We improve- following:
quires home is an a mobile the resting property for home is when the ment to real part, temporary on or in time, in whole more than a support As than its wheels. means of other some above, mentioned this definition rests on a distinction temporary permanent, recognizing between and that legislature permanency intended that of the struc- important distinguishing ture was property between real personal property. reject and therefore We put by Judge Dykman, requires test forth which completely mobile home to be off its wheels before it is improvement an considered to real In this respect, agree appeals, we with the court of which stated: may
To conclude that a mobile home not be taxed as realty until weight its last ounce of been has removed from legislature's goal its wheels would thwart treating mobile homes which have "taken on the char- improvement" acter of a real estate the same as "con- housing" ventional property purposes. for taxation App Ahrens, 2000 WI 268 at "temporary" ¶ 30. We decline to define in terms of specific days, concluding number of that it ais responsibility legislature better left to the or the state department say, of revenue. Suffice to a mobile home is temporary not taxable as real if its location is truly and for a limited time. Mobile homes that are transitory moving place "mobile," is, from place permanently place with no intent the owner to certainly them location, in one would fall under that category. Conversely, placed given mobile homes at a very location for more than a limited time would properly realty. be taxed as specifically requires
¶ 31. The statute "other support." specifically means of However, it does not require support permanently that the be affixed to the only requires or the Instead, mobile home. it *25 home set some other before upon "support" that the be taxed real The mecha- property. support it will be as in by nisms utilized the owners this case included chocks, levelers, basic and and blocks. stabilizing jacks a The owner's use of these items for more than tempo- basis the conclusion that the rary support support is When the mobile system sufficiently permanent.5 home has remained off its wheels and on the property with the same for more than a support system tempo- time, it rary reflects the owner's intent to period treat the mobile home as other than something personal Thus, under mobile interpretation, if are connected to they homes —even utilities argue The owners that a mobile home's foundation must something underground sufficiently that to be permanent. be is However, history regulation upon of Tax 11.88—the which suggests regulation is that the was Wis. 70.043 based— particular, without a in mind. In a requirement written such discussing hearing proposed regulation memorandum on the states: [Assembly expressed Revenue] Members of the Committee that areas concern local assessors some assess some mobile personal property though they
homes as are some sort of even on foundation, such as cement blocks. The Committee asked that we 11.88(1) define in rule and that this definition "foundation" as used Department identical to the one used for be taxation. Jr., K. Kaspar, Depart- Memorandum from State of Wisconsin (June 1980). 20, DeYoung ment of Revenue to J.E. defini- shortly tion of "set a foundation" was drafted thereafter. The idea that cement blocks could constitute a foundation for intended property suggests real the definition was support, just include various means of not those that are underground. property may home owner's
located on mobile — qualify personal property and constitute still for 70.111(19)(b) exemption under Wis. Stat. even *26 they may weight though have some off their wheels. any personal property exemp- Thus, concerns that this completely by interpretation tion has been nullified our are without merit. acknowledge that the in their 33. We statutes
present nearly major- are Both the form irreconcilable. ity yeoman and the did with that dissent work which legislature gave However, them. the both fail to take co-existing appeals' into account majority opinion statutes. The court of exemp-
leads to a nullification of the
personal property
tion for
created under
Wis.
70.111(19).
Judge Dykman's
part,
test, for the most
personal property,
would tax all mobile homes as
con-
70.043(1).
trary
legislative
to the
intent of Wis. Stat.
reason,
For
conclude
test,
we
that our
which
legislature's
adopted.
intent,
follows the
clear
must be
legislative
noted,
As we have
"when a
mandate is
'clearly expressed and there is no warrant for alterna-
may
impose
a
construction,
tive
court
not
its view on
City Kenosha,
what the law should be.'" Ervin v.
159
of
(1991) (citation
464, 478,
2d Wis.
¶ The court of this interpretation, stating: defining
[W]hen what it means for a mobile home to be 70.043(1) foundation," "set a requires the mobile added). home to be "off its wheels" (emphasis It makes no to talk about an porch being sense attached deck or "off plain implication its wheels." The language of this is legislature unit," the referring was to the "basic only which the is structure that would once have been on wheels. App
Ahrens, 268, 2000 WI 18. Under the definition of home, however, mobile such or additions attachments part are considered as of the mobile home itself. As a part resting if result, this of the mobile home is on some support means of than the wheels of the basic other being supported by unit, the mobile home itself is Thus, whole, the on the all means other than wheels. twenty representative the had their of owners mobile support. and homes off their wheels on some other period question then remains for what of time these off homes were their wheels. representative issue, 36. On the owners they
stipulated that have their mobile homes located on Similarly, complaints, in each their lots. they owners admitted that have their mobile homes suggest located on their lots. These admissions that the mobile homes were situated on the lots were not nothing suggest moved. There is the record to only respect spent otherwise. The variable with to time spends residing in on lot is the time each owner his the. or her mobile home.6 Even this information shows that the mobile homes were located on the for more temporary than basis. These facts lead to the conclu- properly sion that these homes were classified and improvements taxed as to real because supported homes were means other than the wheels temporary reason, for more than a basis. For this we against need not address whether taxes levied these representative owners' mobile homes unlawful were Accordingly, under Wis. Stat. 74.35. we affirm the appeals' upheld decision, court of which the circuit judgment representative court's of dismissal on the owners' actions.
6 respect owners, With the representative to the record Bears, 143, days; the reveals that Lot were on their lot for 52 the 82, Boszkos, 556, Brueggemans, days; Lot for 24 the Lot for 30 Dahlkes, 59, days; days; Groths, 377, the 40 Lot for the Lot for months; Heidners, 419, days; Obukowiczs, 4 the Lot for 40 the 69, days; Ryans, 97, days. Lot for 72 and the Lot for 56
IV respect disposition ¶ 37. With to the of the claims nonrepresentative of the owners, we conclude that appropriate provide remand to the circuit court is to proper evidentiary determination on whether each of improvements these fall owners within the definition of property, opinion. to real as it in has been defined this Accordingly, appeals' we affirm the of court decision in respect remaining and remand the of the actions evidentiary proceedings. for owners further
V appeals' sum, In we affirm the court of representative decision. For the appropriate owners, dismissal is properly because the Town assessed and improvements taxed these mobile homes as real nonrepresentative For the owners, we remand proceedings to the circuit court for further to determine prop- whether the mobile homes of these owners were erly improvements light classified as to real in opinion. of this
By appeals the Court.—The decision of the of courts is affirmed.
¶ 39. SHIRLEY S. ABRAHAMSON, CHIEF JUS- (concurring). agree majority opinion TICE I with the legislative that Wis. Stat. 70.043 needs attention. No judicial upon definition of "set a foundation" or "off its support" wheels" or "set some other is free from choosing among difficulties. in Nevertheless, several unsatisfactory alternatives forth I courts, set adopt majority opinion would in test set forth appeals presents the court I because think it *29 application. problems I in would not further fewest majority opinion complicate does, issue, as the (majority op. concepts "temporary" adding at of (majority 30), op. "temporary ¶ a limited time" and for 30), 30), (majority op. "very ¶ ¶ at or limited time" at 31) (majority interpreting op. "temporary at basis" the statute. Moreover, I how the do not understand
majority apply opinion can its new test to defeat giving plaintiffs plaintiffs without these claims opportunity present under the new test. an evidence
¶ 41. I am authorized to state that Justice DIANE joins opinion. S. SYKES