STATE OF WISCONSIN EX REL. CITY OF WAUKESHA, PETITIONER-RESPONDENT, v. CITY OF WAUKESHA BOARD OF REVIEW, RESPONDENT-APPELLANT, SALEM UNITED METHODIST CHURCH, INTERESTED PARTY-RESPONDENT.
Case No. 2019AP1479
COURT OF APPEALS OF WISCONSIN
November 18, 2020
2020 WI APP 77
PUBLISHED OPINION. †Pеtition for Review filed. Submitted on Briefs: June 11, 2020. Judges: Neubauer, C.J., Gundrum and Davis, JJ.
Appellant ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the briefs of Eric J. Larson of Municipal Law & Litigation Group, SC, Waukesha.
Respondent ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the brief of Brian E. Running, City Attorney, Waukesha.
COURT OF APPEALS DECISION DATED AND FILED November 18, 2020
Sheila T. Reiff Clerk of Court of Appeals
NOTICE
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
Cir. Ct. No. 2018CV1432
IN COURT OF APPEALS
STATE OF WISCONSIN EX REL. CITY OF WAUKESHA, PETITIONER-RESPONDENT, v. CITY OF WAUKESHA BOARD OF REVIEW, RESPONDENT-APPELLANT, SALEM UNITED METHODIST CHURCH, INTERESTED PARTY-RESPONDENT.
APPEAL from an order of the circuit court for Waukesha County: MICHAEL O. BOHREN, Judgе. Reversed and cause remanded with directions.
Before Neubauer, C.J., Gundrum and Davis, JJ.
¶2 After the taxpayer, Salem United Methodist Church (Church) received a favorable decision from the Board, the City sought statutory certiorari review; the circuit court issued the writ; and the Board
BACKGROUND
The Church‘s Objection to the Increased Tax Assessment
¶3 In proceedings before the Board, the parties differed as to the valuation of the subject prоperty. Because we determine that the City is not statutorily authorized to appeal the Board‘s decision, we need not address in detail the merits of the valuation dispute. In 2017, the City assessed the property owned by the Church at $51,900. In 2018, the assessor increased the amount to $642,200, in part due to the Church apparently having received, and later admitting that it accepted, an offer to sell for approximately $1,000,000. The assessor notified the Church of the change, informed it that the open book session would be held the following week, and explained that a Board hearing would be conducted. In response, the Church filed an objection, providing its own amount of $108,655 and the basis therefor. After a hearing at which the assessor testified and provided his analysis, and the Church provided testimony and evidence, the Board ruled in favor of the Church, accepting its valuation, slightly rounding up to $108,700.
The City‘s Certiorari Appeal Seeking to Overturn the Board‘s Decision
¶4 The City subsequently petitioned the circuit court under
¶5 The Board moved to quash the writ on grounds, among others, for failure to state a claim for relief that could be granted and for lack of standing, capacity, legal authority to commence such an action, and jurisdiction. It also moved to dismiss on the ground that the Church provided sufficient credible evidence to overcome the presumed correctness of the assessor‘s valuation, such that the Board acted according to law and not in an arbitrary manner.
¶6 The circuit court denied both motions. It remanded the matter to the Board for further proceedings in conformity with the court‘s order. The Board appeals.3
Standards of Review and Rules of Statutory Interpretation
¶7 The Board argues that
¶8 When interpreting
language “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-related statutes,” and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶48. If, employing these principles, the meaning of the statute is plain, then we apply that language to the facts at hand. See id., ¶¶45-50.
¶9 A statute is ambiguous when “it is capable of being understood by reasonably well-informed persons in two or more senses.” Id., ¶47. However, a statute is not rendered ambiguous merely because two parties disagree as to its meaning. Id.
The Language of WIS. STAT. § 70.47(13)
¶10 We must decide whether
(13) CERTIORARI. Except as provided in [
WIS. STAT. §] 70.85, appeal from the determination of the board of review shall be by an action for certiorari commenced within 90 days after the taxpayer receives the notice under sub. (12).
¶11 Because the above provision is based on and refers to a number of preceding circumstances, as well as other statutory provisions, we will first provide
some background and context of the tax assessment and objection process and then analyze the applicable statutes.
Wisconsin‘s Ovеrall Real Property Tax Assessment Process and Appeals to the Board of Review
¶12 In general, Wisconsin taxes property using a means of assessment laid out in
¶13 Here, the City‘s mayor appoints the assessor, whose term is indefinite and whose appointment is subject to confirmation by the common council. See CITY OF WAUKESHA, WIS., CODE ch. 2.01(2) (Sept. 21, 2015).
¶14 The assessor values all taxable property within the tаxation district. See
the assessor about an adjustment оr correction (the assessor must be present for at least two hours while the rolls are open).
¶15 Owners who then wish to dispute the assessment may file an objection with the board of review. See
¶16 “In all proceedings before the board the taxation district shall be a party in interest to secure or sustain an equitable assessment of all the property in the taxation district.”
¶17 The board will then make a determination as to whether the assessment is correct.
¶18 If the assessment is too high or too low, the board will adjust it accordingly.
¶19 A city‘s board could include the “mayor, clerk and such other officers, other than assessors,” as provided by city ordinance; in villages, the president, clerk, and such other officers, other than the assessor, as determined by ordinance; and
¶20 Although a board‘s membеrship does not usually require any special training or experience, see
(1) MEMBERS. (Am. #18-04) The Board of Review shall be composed of 5 residents of the City, none of whom shall occupy any public office or be publicly employed. The Board shall consist of a realtor, attorney, owner of a commercial property and two homeowners....
(2) APPOINTMENT. One member shall be apрointed annually by the Mayor, subject to the approval of the [Common] Council, and shall hold office for 5 years until his [or her] successor is appointed and qualified.
CITY OF WAUKESHA, WIS., CODE ch. 3.03(1), (2) (Aug. 21, 2008).
¶21 As part of this overview, and before we directly examine
be noted. Section 70.47(12) explains how notice of the Board‘s decision is provided. It states as follows:
(12) NOTICE OF DECISION. Prior to final adjournment, the board of review shall provide the objector, or the appropriate party under sub. (10) [a subsection no party asserts is relevant here], notice by personal delivery or by mail, return receipt required, of the amount of the assessment as finalized by the board and an explanation of appeal rights and procedures under sub. (13) and [
WIS. STAT. §§] 70.85, 74.35 and 74.37. Upon delivering or mailing the notice under this subsection, the clerk of the board of review shall prepare an affidavit specifying the date when that notice was delivered or mailed.
WISCONSIN STAT. § 70.47(13) Does Not Authorize the City to Appeal its Board‘s Decision
¶22 We conclude that, after examining the language of
¶23 To start, we repeat the most pertinent language of
After all, the notice is the official document constituting the Board‘s decision regarding the taxpayer‘s objection, akin to a final judgment for purposes of an appeal to this court, see
¶24 The City argues that
¶25 Further bolstering the Board‘s argument is the reference to
¶26 Moreover, the certiorari appeal provision identifies when the specific time for appeal is triggered: “90 days after the taxpayer receives notice” of the Board‘s determination.
begin and then naturally determines the date those rights expire. So, the time that an appeal may be commenced and the time by which an appeal is time-barred turn on the date the taxpayer—and only the taxpayer—receives notice.
¶27 The City asserts that the ninety days merely sets the time for an appeal and does not establish the rights of appeal and who may take one. We agree that the time limit does not establish who may take an appeal, but, as explained above, because the taxpayer is the only person statutorily required to receive the notice and the date of that receipt sets the appeal clock ticking, it strongly suggests that the certiorari appeal provision was intended only fоr the benefit of an aggrieved taxpayer.
¶28 The City responds that, while not receiving official notice of the Board‘s determination under the statute, it is “ridiculous” that the City would somehow remain unaware of the Board‘s determination, noting that the assessor would have been at the proceedings and that the Board‘s determination would have to be reported to the City‘s treasurer. That may all be true. But the appeal time starts not at the Board hearing and when the City treasurer learns of it, but rather when the taxpayer receives notice.
¶29 Moreover, we are tаsked here with statutory interpretation, and the statutory provisions spell out very clearly that the Board must only ensure that the taxpayer receive the Board‘s decision and that the appeal time begins to run upon the taxpayer‘s receipt. It would be uncommon, oddly random, and potentially vague for the legislature, after establishing a comprehensive statutory taxation and assessment scheme, to leave a party that allegedly has a right to appeal (e.g., the City) to learn of that right by an unspecified, unexpressed, and indirect means. For gоod public policy reasons, filing and deadline periods are typically express, direct,
and precise, and then strictly enforced. Cf., State v. Sorenson, 2000 WI 43, ¶16, 234 Wis. 2d 648, 611 N.W.2d 240 (“The timely filing of a notice of appeal is necessary to give the court of appeals subject matter jurisdiction over an appeal. If a party fails to comply with the statutory requirements for filing a timely notice of appeal, the court of appeals lacks
Contrary to the City‘s Argument, the Legislature is not Required to Permit the City to Use the Statutory Certiorari Appeаl Process
¶30 The City argues that it is only logical to allow the City to appeal its Board‘s determination because a certiorari review is meant to ensure that administrative bodies use and properly apply the pertinent rules, specifically here the rule that the assessor‘s valuation is presumed correct. As an indication of legislative intent in favor of its point, the City emphasizes
¶31 Certiorari is generally a means by which a court may examine the validity of a decision made by a municipality, an administrative agency, or an inferior tribunal. See Ottman v. Town of Primrose, 2011 WI 18, ¶34, 332 Wis. 2d 3, 796 N.W.2d 411. The City does not cite to any case law, however, holding that when the legislature undertakes to draft its own certiorari appeal process, and taking
into account an already highly evolved, comprehensive statutory scheme, it is required to follow any particular criteria or include certain conditions. Nor does it provide case law requiring, more specifically, that the legislature must confer appeal right status on any particular person or group of pеrsons (other than to avoid drafting the statute, of course, in a way inconsistent with due process or other rights protected by the federal and state constitutions; but the City makes no constitutional argument).
¶32 The City‘s reference to
¶33 Finally,
¶34 As for the City‘s arguments that, if it is not allowed to appeal, then no one can ensure that the Board acts according to law and keeps within its jurisdiction, and no good public policy reasons exist to interpret the statute as the Board suggests, they fail to persuade. These assertions are somewhat intertwined, so we will answer them as a whole.
¶35 First, the legislature may have had good public policy reasons not to permit the City to take such an appeal. In this regard, the legislature may have set up the certiorari appeal provision for use only by the taxpayer because the City, through its appointed assessor, and its appointed Board of Review, has more than ample opportunity for input in the individual assessment process, as well as in general the appointment process. Much of this has been noted above, but we highlight a few items.
¶36 The assessment is initiated, investigated, determined and then reviewed by City-appointed individuals. In this regard, the City Mayor chooses the assessor with the approval of the common council, the assessor calculates the valuation, is available to address and discuss the adjustment with the taxpayer, and then he or she explains and defends it at the Board hearing. See CITY OF WAUKESHA, WIS., CODE ch. 3.03(1), (2);
¶37 The City Mayor also selects each of the five Board members (one per year) with approval of the common council. See CITY OF WAUKESHA, WIS., CODE
ch. 3.03(1), (2). The City also chose the desired backgrounds of each member: two homeowners, a realtor, an attorney, and a commercial property owner. See
¶38 To object to an assessment, the taxpayer must jump through several hoops, such as filing its objection within short deadlines, providing its own estimate with supporting evidence, and presenting its case to the Board with the burden of making a “sufficient showing” that the assessment is incorrect. The Board must presume that the assessor‘s amount is correct.
¶39 The foregoing factors plainly reveal a rational basis to disallow the City from taking a certiorari appeal of a decision made by the Board it selects, funds, and provides information to in considering the recommended assessment of the City‘s appointed assessor. In short, the City has input through its appointed assessor (whose work enjoys a presumption of correctness), and in appointing the members of the Board. To provide it with yet another avenue for input would be at the direct expense of taxpayers, who would then be burdened with the litigation costs of an appeal they do not seek, not to mention the unwanted delay and uncertainty. Ultimately, it would undermine the streamlined process set forth in the statute that allows taxpayers to challenge unfavorable assessments in a cost-effective and efficient manner.
¶40 Moreover, had the legislature intended to allow the City to take a certiorari appeal here, it could have said so. It
department, board or bureau of the municipality.”
¶41 Lastly, we also generally note that, upon reviewing the statutory scheme, the case law8 and a specific guidance document prepared by the Wisconsin
Department of Revenue, we have only sеen discussions of the certiorari appeal within the context of the taxpayer invoking it.9 See generally WISCONSIN DEPARTMENT OF REVENUE, PROPERTY ASSESSMENT APPEAL GUIDE FOR WISCONSIN REAL PROPERTY OWNERS (2020). The Department of Revenue has general supervisory authority over the administration of the assessment and tax laws of the state, over assessors, and
may appeal, but it adds to the already countless factors weighing in favor of arriving at that conclusion.10
¶42 For these reasons, we conclude the language of the statute is clear, and reverse the circuit court‘s denial of the Bоard‘s motions and remand to the circuit court with directions to quash the writ and dismiss the City‘s certiorari action.
By the Court.—Order reversed and cause remanded with directions.
Notes
Chapter 70 of the Wisconsin Statutes establishes a comprehensive procedure by which property owners may challenge the valuation or the amount of property assessed for taxation....
Hermann v. Town of Delavan, 215 Wis. 2d 370, 379-80, 572 N.W.2d 855 (1998) (emphasis added; footnotes omitted). Both parties acknowledge that there is no published decision in which a municipality appealed its Board of Review‘s determination. Neither party addresses how an appeal by a municipality underThe statutory scheme of [WIS. STAT.] chs. 70 and 74 also provides a detailed method for taxpayers to appeal a decision of the board of review. A property owner who files an objection with the board of review under [WIS. STAT.] § 70.47(7) and who disаgrees with the board‘s determination has three options for appeal. The property owner may appeal the determination of the board by an action for certiorari. See [WIS. STAT.] § 70.47(13). In addition, the property owner may file a written complaint with the department of revenue requesting that the department revalue the property and adjust the assessment thereof. See [WIS. STAT.] § 70.85. In the alternative, the property owner may file a claim against the taxation district for an excessive assessment to recover any amount of property tax imposed as a result of the excessive assessment. See [WIS. STAT.] § 74.37(2)(a).