Voters with Facts v. City of Eau Claire ( 2018 )

2018 WI 63
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1858
COMPLETE TITLE: Wisconsin Three, LLC, Voters with Facts, Leah
Anderson, David Wood, Jo Ann Hoeppner Cruz,
Maryjo Cohen, Janice Wnukowski, Rachel Mantik,
Pure Savage Enterprises, LLC, Paul Zank, Judy
Olson, Janeway Riley, J. Peter Bartl and Dorothy
Westermann, Dewloc, LLC, Cynthia Burton, Corinne
Charlson, Christine Webster, 215 Farwell LLC,
Plaintiffs-Appellants-Petitioners,
v.
City of Eau Claire and City of Eau Claire Joint
Review Board,
Defendants-Respondents.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 376 Wis. 2d 479, 899 N.W.2d 706
PDC No: 2017 WI App 35 - Published
OPINION FILED: June 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 23, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Eau Claire
JUDGE: Paul J. Lenz
JUSTICES:
CONCURRED:
DISSENTED: R.G. BRADLEY, J., and KELLY, J., dissent
(opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs filed by Thomas C. Kamenick, Richard M. Esenberg, Brian
McGrath, and Wisconsin Institute for Law & Liberty, Milwaukee.
There was an oral argument by Richard M. Esenberg.
For the defendants-respondents, there was a brief filed by
Douglas Hoffer, assistant city attorney, and Stephen C. Nick,
city attorney, with whom on the brief was Remzy D. Bitar and
Arenz, Molter, Macy, Riffle & Larson S.C., Waukesha. There was
an oral argument by Douglas Hoffer.
An amicus curiae brief was filed on behalf of Eau Claire
Area Chamber of Commerce, Inc. by Ryan J. Steffes and Weld
Riley, S.C., Eau Claire.
An amicus curiae brief was filed on behalf of Wisconsin
REALTORS Association, NAIOP-WI, and the Wisconsin Economic
Development Association by Thomas D. Larson and The Wisconsin
REALTORS Association, Madison.
An amicus curiae brief was filed on behalf of League of
Wisconsin Municipalities, City of Milwaukee, City of Madison,
and Wisconsin Towns Association by Claire Silverman and League
of Wisconsin Municipalities, Madison, with whom on the brief
were Mary L. Schanning, deputy city attorney of Milwaukee; Gregg
C. Hagopian, assistant city attorney of Milwaukee; Grant F.
Langley, city attorney of Milwaukee; Michael May, city attorney
of Madison; and Rick Manthe and Wisconsin Towns Association,
Shawano.
An amicus curiae brief was filed on behalf of the State of
Wisconsin by Misha Tseytlin, solicitor general, Brad D. Schimel,
attorney general, and Kevin M. LeRoy, deputy solicitor general.
There was an oral argument by Misha Tseytlin.
2
2018 WI 63
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1858
(L.C. No. 2015CV175)
STATE OF WISCONSIN : IN SUPREME COURT
Voters with Facts, Pure Savage Enterprises,
LLC, Wisconsin Three, LLC, 215 Farwell LLC,
Dewloc, LLC, Leah Anderson, J. Peter Bartl,
Cynthia Burton, Corinne Charlson, Maryjo Cohen,
Jo Ann Hoeppner Cruz, Rachel Mantik, Judy
Olson, Janeway Riley, Christine Webster,
Dorothy Westermann, Janice Wnukowski, David FILED
Wood and Paul Zank,
JUN 6, 2018
Plaintiffs-Appellants-Petitioners,
Sheila T. Reiff
v. Clerk of Supreme Court
City of Eau Claire and City of Eau Claire Joint
Review Board,
Defendants-Respondents.
REVIEW of a decision of the Court of Appeals. Affirmed and
cause remanded.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This case arises out
of the approval of a redevelopment project in the City of Eau
Claire (the "City"), which relied in part on funds derived from
two tax incremental districts ("TIDs"): TID 8 and TID 10.
No. 2015AP1858
Voters with Facts, et al.1 ("Plaintiffs") challenged the legality
of the City's actions with regard to these TIDs. We review here
a published decision of the court of appeals, Voters with Facts
v. City of Eau Claire, 2017 WI App 35, 376 Wis. 2d 479, 899
N.W.2d 706 [hereinafter Voters], affirming the Eau Claire County
circuit court's2 dismissal of Plaintiffs' complaint as to
declaratory judgment, but reversing and remanding as to
certiorari review.
¶2 The expansion or creation of TIDs is limited to one of
four purposes: addressing blighted areas, urban rehabilitation
or conservation, industrial development, or the promotion of
mixed-use development. Wis. Stat. § 66.1105(4)(gm)4.a. (2013–
14).3 Where a municipality seeks to expand or create a TID, it
must resolve to do so for one of these purposes. Id. Here, the
City's declared purpose was to address blight, and, to support
that purpose, the City's local legislative body had to find,
among other things, that "[n]ot less than 50%, by area, of the
real property within the district is . . . a blighted area."
Id. A TID must also be approved by a joint review board
("JRB"), which must find, among other things, that "in its
1
There are 19 plaintiffs total: 4 LLCs, 14 individuals, and
Voters with Facts——"an unincorporated association of grassroots
citizen volunteers and Eau Claire taxpayers who question the
propriety of the proposed developments."
2
The Honorable Paul J. Lenz presided.
3
All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise noted.
2
No. 2015AP1858
judgment, the development . . . would not occur without the
creation of a [TID]." § 66.1105(4m)(b)2. In their complaint,
Plaintiffs did not dispute that the appropriate bodies stated
the appropriate findings, but rather alleged that the findings
were "neither supported by record evidence nor factually
correct." Additionally, Plaintiffs alleged that the City's
disbursement of cash grants to the developer for "project costs"
was unlawful because it amounted to an unconstitutional tax
rebate and/or because the developer could apply the cash grants
to reimburse itself for already-incurred costs of demolishing
historic buildings, contrary to § 66.1105(2)(f)1.a. Plaintiffs
sought declaratory relief on these claims, but argued in the
alternative that, under certiorari review, the City had acted
outside the scope of its lawful authority.
¶3 The circuit court dismissed Plaintiffs' complaint
because it found that they lacked standing. The court of
appeals affirmed in part and reversed in part, remanding with
instruction. Voters, 376 Wis. 2d 479, ¶¶2, 4. The court of
appeals affirmed the circuit court's dismissal of Plaintiffs'
complaint as to declaratory judgment because it agreed that
Plaintiffs lacked standing. See id., ¶26 (findings); id., ¶39
(project costs); id., ¶48 (uniformity clause). It reversed and
remanded for certiorari review, however, because the circuit
court had not directly addressed that claim. Id., ¶¶35, 60.
¶4 On review, we consider two issues. First, we consider
whether dismissal of Plaintiffs' declaratory judgment claims was
proper. We conclude that it was, because Plaintiffs have failed
3
No. 2015AP1858
to state claims upon which relief can be granted: the first and
second counts fail because the City Common Council's findings of
blight and the JRB's "but for" assertions are legislative
determinations that do not present justiciable issues of fact or
law; the third count fails because it does not allege facts
which plausibly establish that the City's cash grant for TID 10
was used to reimburse the developer's costs associated with
demolishing historic buildings; and the fourth count fails
because it does not allege facts which plausibly establish that
cash grants are intended or used to pay owner-developers'
property taxes.
¶5 Second, we consider whether certiorari review is
appropriate. We conclude that it is, because certiorari review
is the appropriate mechanism for a court to test the validity of
a legislative determination. The record before us, however,
does not contain a municipal record sufficient to enable our
review. Accordingly, we remand to the circuit court for
certiorari review of Plaintiffs' first and second claims.
¶6 Thus, we affirm the decision of the court of appeals
on other grounds.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶7 As noted above, this case arises out of the approval
of a redevelopment project (the "Confluence Project") in
downtown Eau Claire. The Confluence Project relied in part on
tax incremental financing ("TIF") derived from the City's
expansion of the already-existing TID 8 and its creation of
4
No. 2015AP1858
TID 10,4 both of which were endorsed by the City Planning
Commission on August 18, 2014.
¶8 On September 9, 2014, the City Common Council adopted
a resolution approving the expansion of TID 8. In its
resolution, the City Common Council stated that "not less than
50%, by area, of the real property within the amended boundary
area of the District is a 'blighted area' and is in need of
'rehabilitation or conservation' within the meaning of Section
66.1105(2)(a)1 of the Wisconsin Statutes." On September 26,
2014, the JRB approved the resolution. In its approval, the JRB
stated that "the development described in the Amendment [to TID
#8] would not occur without the amendment."5 (Alteration in
original.)
¶9 On October 14, 2014, the City Common Council adopted a
resolution approving the creation of TID 10. In its resolution,
4
When a city approves tax incremental financing, the
property owners within the boundaries of the tax incremental
district continue to pay the same rate of property tax, and the
city allocates a portion of that tax revenue to finance the
approved development project. As property values rise——
presumably due to the public improvements financed by the TIDs——
property owners will pay a higher amount of property tax
commensurate with the incremental increase in value of their
property. This value increment——the difference between taxes
paid before and taxes paid as property values rise——is what the
City ultimately uses to pay for the public improvements. See
City of Hartford v. Kirley, 172 Wis. 2d 191, 198-200, 493
N.W.2d 45 (1992).
5
Neither the City Common Council's resolution approving the
expansion of TID 8, nor the JRB's approval of that resolution,
are in the record, but the Plaintiffs' complaint alleges that
these statements were contained in those documents.
5
No. 2015AP1858
the City Common Council stated that "not less than 50%, by area,
of the real property within the amended boundary area of the
District is a 'blighted area' and is in need of 'rehabilitation
or conservation' within the meaning of Section 66.1105(2)(a)1 of
the Wisconsin Statutes." On October 22, 2014, the JRB approved
the resolution. In its approval, the JRB stated that "the
development described in the Project Plan would not occur
without the creation [presumably of TID #10]."6 (Alteration in
original.)
¶10 Open public hearings were held prior to the decisions
of the Planning Commission and the City Common Council,7 at which
"numerous city residents, including many of the Plaintiffs,
spoke out against the TIDs." On March 12, 2015, Plaintiffs
filed a complaint seeking declaratory relief on four claims.
¶11 The first and second claims (regarding TID 8 and TID
10, respectively) challenged the validity of the City's findings
of blight under Wis. Stat. § 66.1105(4)(gm)4.a. and the JRB's
"but for" findings under Wis. Stat. § 66.1105(4m)(b)2. With
regard to the City's findings, Plaintiffs alleged that the City
was "required to articulate the basis for its finding and the
evidence of record that supports its action," and that, although
6
Neither the City Common Council's resolution approving the
creation of TID 10, nor the JRB's approval of that resolution,
are in the record, but the Plaintiffs' complaint alleges that
these statements were contained in those documents.
7
The minutes from these public hearings are not in the
record before the court.
6
No. 2015AP1858
the City's resolution "contains a conclusory assertion that 'not
less than 50%, by area, of the real property within the amended
boundary area of the [TID] is a "blighted area,"'" the City "did
not articulate the factual basis for this conclusory statement
and the record before the [City] contains no evidence to support
its assertion." With regard to the JRB's findings, Plaintiffs
alleged that the JRB could not have "reasonably concluded on the
record evidence that the development would not occur in the
[TID] without tax incremental financing." Plaintiffs thus
argued that the TIDs lacked a public purpose in violation of the
public purpose doctrine and sought a declaration that the
authorization and implementation of the TIDs was "invalid, void,
and of no force and effect."
¶12 The third claim challenged the validity of the City's
disbursement of cash grants pursuant to the project plan for
TID 10. Plaintiffs alleged that "the development agreement does
not clearly provide that the [] developer may not use the lump
sum payments to reimburse itself for the costs of demolishing
[historic] properties," and that, "[g]iven the lump sum
character of the developer payments, there is in fact no way to
assure [how] the payments have been used." Plaintiffs thus
argued that the cash grants violated Wis. Stat.
§ 66.1105(2)(f)1.a.——which excludes "destruction of [historic]
properties" from the definition of "project costs"——because the
project plan "unlawfully reimburses the developer for
[demolishing historic properties]," and sought a declaration
7
No. 2015AP1858
that the implementation of TID 10 was "invalid, void, and of no
force and effect."
¶13 The fourth claim also challenged the validity of the
City's disbursements of cash grants pursuant to the project plan
for TID 10.8 Plaintiffs alleged that the cash grants function
"as [a] tax rebate or tax credit" because the developer, who is
also the "owner of taxable property[,] is given substantial cash
payments, effectively reimbursing the owner[-developer] (in
advance) for all or a part of the taxes paid on its property."
Plaintiffs thus argued that the cash grants violate the
Uniformity Clause of the Wisconsin Constitution because the
owner-developer "is being taxed at a more favorable rate than an
owner of identically-assessed property elsewhere in Eau Claire,"
and sought a declaration that the creation of TID 10 was
"unlawful, void, and of no force and effect."
¶14 Plaintiffs asserted certiorari review as an
alternative basis for relief, "[i]f for any reason [they] are
not entitled to declaratory relief." On this fifth claim,
Plaintiffs argue that, "[f]or the reasons set forth above, the
8
The complaint is not clear as to whether this challenge is
raised against both TIDs or just TID 10. The heading for the
fourth claim states that it seeks "Declaratory Judgment relating
to both TIDs," but the final paragraph requests only that "the
Resolution creating TID #10 [be declared] . . . unlawful, void,
and of no force and effect." Because we conclude that the claim
fails to state a claim upon which relief can be granted, this
discrepancy in the record does not affect our analysis.
8
No. 2015AP1858
[actions] of the [City and the JRB] [were] arbitrary,
capricious, and outside the scope of their lawful authority."
¶15 On April 9, 2015, the City filed its answer, denying
in relevant part Plaintiffs' allegations. The City also
asserted a number of affirmative defenses, including that
"Plaintiffs' complaint contains claims which may fail to state a
claim upon which relief may be granted," and that "[o]ne or more
plaintiffs may lack capacity to sue or standing and one or more
of the claims may be unripe or moot." On May 22, 2015, the City
filed a motion to dismiss, which more fully articulated its
challenges to the viability of Plaintiffs' complaint.
¶16 In general, the City argued that Plaintiffs lacked
standing because the claims were highly speculative, did not
allege any direct pecuniary loss, and were not ripe. More
specifically, the City argued that Plaintiffs' first and second
claims fail because they do not allege "that there can be no
benefit to the public . . . which the Plaintiffs must
demonstrate to prove a lack of public purpose"; Plaintiffs'
third claim fails because the "'anything's possible' allegations
are not sufficient" and are moot in any event "because the
buildings in question have already been demolished"; and
Plaintiffs' fourth claim fails because it is a facial
constitutional challenge to a law that has already been held to
be constitutional. Additionally, even assuming Plaintiffs have
standing, the City argued that declaratory judgment was not the
9
No. 2015AP1858
proper method for reviewing the creation or expansion of TIDs,
which is limited to certiorari.9
¶17 The circuit court agreed. On August 17, 2015, the
circuit court ruled from the bench and dismissed Plaintiffs'
complaint for lack of standing under the declaratory judgment
standard.10 It concluded that "none of the
plaintiffs . . . allege a legally protect[a]ble interest"
because they "allege no particular pecuniary loss attributable
to them except a speculative possibilit[y] that general tax
revenues could be affected." The circuit court further
concluded that the issue was not ripe because the alleged harms
were highly speculative, and because it concluded that "the
determination of blight is legislative and is, in essence, a
political question." In this regard, it determined that
"[t]here is a lack of judicially discoverable and manageable
standards," it is impossible to decide the matter "without an
initial policy determination of a kind that is clearly not for
judicial discretion," and "the court's undertaking an
independent resolution of this matter would express a lack of
9
On June 22, 2015, Plaintiffs filed their response. On
July 2, 2015, the City filed its reply. On July 16, 2015, the
circuit court held a hearing on the motion.
10
There are four prerequisites a party must satisfy to seek
declaratory relief: (1) a justiciable controversy must exist;
(2) the controversy must be between persons whose interests are
adverse; (3) the plaintiff must have a legally protectable
interest in the controversy; and (4) the issue must be ripe for
determination. See Loy v. Bunderson, 107 Wis. 2d 400, 410, 320
N.W.2d 175 (1982).
10
No. 2015AP1858
respect due to coordinate branches of government." On
August 28, 2015, the circuit court's order dismissing
Plaintiffs' complaint was filed. Plaintiffs appealed.
¶18 On May 31, 2017, the court of appeals affirmed in part
and reversed in part, remanding for further proceedings on
Plaintiffs' certiorari claim. Voters, 376 Wis. 2d 479, ¶¶2, 4.
The court of appeals affirmed the circuit court's dismissal of
Plaintiffs' first four claims because it agreed that Plaintiffs
lacked taxpayer standing. In this regard, it stated that "the
alleged unlawful expenditure of public funds, if otherwise
sufficient to survive a motion to dismiss, is sufficient to
support taxpayer standing." Id., ¶17 (citing S.D. Realty Co. v.
Sewerage Comm'n of City of Milwaukee, 15 Wis. 2d 15, 22, 112
N.W.2d 177 (1961)). It thus concluded that, "[a]scertaining
whether [Plaintiffs have] standing . . . turns on whether those
claims adequately allege the unlawful expenditure of public
funds." Id., ¶18.
¶19 As to the first and second claims, the court of
appeals concluded that Plaintiffs did not adequately plead the
unlawful expenditure of public funds because the plain language
of Wis. Stat. §§ 66.1105(4)(gm)4.a. and 66.1105(4m)(b)2. is
procedural, not substantive, and therefore requires only that
the City and the JRB "assert the requisite findings." Id., ¶25.
Thus, "even assuming a neutral factfinder would conclude there
was an inadequate factual basis . . . [that] alone do[es] not
support [Plaintiffs'] allegation that those bodies failed to
follow the statutory procedure for creating a TID." Id., ¶26.
11
 No. 2015AP1858
The court of appeals concluded, however, that these findings11
may be challenged through certiorari review, id., ¶¶28 n.9, 35,
and that, if the findings were "without a substantial basis in
the evidence, or [were] arbitrary and unreasonable (or otherwise
contrary to law), then the creation/amendment of the TIDs [was]
not only an unlawful act, but also unconstitutional as lacking a
valid public purpose," id., ¶59. It thus remanded to the
circuit court for certiorari review of the City's and the JRB's
findings.12 Id., ¶60.
¶20 As to the third claim, the court of appeals concluded
that Plaintiffs did not adequately plead the unlawful
expenditure of public funds because the "sum total" of their
allegations "fail[ed] to allege that anything unlawful has
occurred, or is even likely to occur." Id., ¶38. Thus,
Plaintiffs' "alleged injury is far too speculative to create a
plausible claim for relief." Id., ¶39.
¶21 As to the fourth claim, the court of appeals
concluded, as a preliminary matter, that Plaintiffs' allegations
"constitute[] a facial challenge to the constitutional validity
of payments authorized by Wis. Stat. § 66.1105(2)(f)2.d."
11
The court of appeals agreed with the circuit court that
these findings are acts of legislative discretion. Voters, 2017
WI App 35, ¶30, 376 Wis. 2d 479, 899 N.W.2d 706.
12
The court of appeals noted that "[t]ypically, this court
determines for itself whether a plaintiff has adequately stated
a claim for certiorari relief and whether the plaintiff should
prevail on the merits of his or her claim," but remanded because
the parties agreed that remand was more appropriate. Id., ¶60.
12
 No. 2015AP1858
because Plaintiffs assert that "in all instances, payments from
a city to an authorized entity 'effectively reimburs[e] the
owner (in advance) for all or a part of the taxes paid on its
property.'" Id., ¶47. The court of appeals then concluded that
Plaintiffs did not adequately plead the unlawful expenditure of
public funds because limiting the cash grants to reimbursement
for "project costs" is a "significant and material restriction
[that] compels us to conclude this case presents no issue
regarding uniformity that has not already been settled by our
supreme court." Id., ¶54 (citing Sigma Tau Gamma Fraternity
House Corp. v. City of Menomonie, 93 Wis. 2d 392, 412, 288
N.W.2d 85 (1980), and State ex rel. La Follette v. Torphy, 85
Wis. 2d 94, 108, 270 N.W.2d 187 (1978)). In this regard, the
court of appeals noted that Plaintiffs' "characterization of the
payments as unlawful tax rebates or credits . . . are mere legal
conclusions, which we need not accept." Id. (citing Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶18, 356
Wis. 2d 665, 849 N.W.2d 693). Thus, it concluded that
Plaintiffs have "failed to state a cognizable claim." Id., ¶48.
Plaintiffs petitioned for review.
¶22 On October 2, 2017, we granted Plaintiffs' petition
for review.13
13
At the same time that the petition for review was
granted, motions for discovery and for disqualification of
Justice Kelly were denied.
13
No. 2015AP1858
II. STANDARD OF REVIEW
¶23 "Whether a complaint states a claim upon which relief
can be granted is a question of law for our independent review."
Data Key Partners, 356 Wis. 2d 665, ¶17.
III. ANALYSIS
¶24 On review, we consider two issues. First, we consider
whether dismissal of Plaintiffs' declaratory judgment claims was
proper. We conclude that it was, because Plaintiffs have failed
to state claims upon which relief can be granted: the first and
second counts fail because the City Common Council's findings of
blight and the JRB's "but for" assertions are legislative
determinations that do not present justiciable issues of fact or
law; the third count fails because it does not allege facts
which plausibly establish that the City's cash grant for TID 10
was used to reimburse the developer's costs associated with
demolishing historic buildings; and the fourth count fails
because it does not allege facts which plausibly establish that
cash grants are intended or used to pay owner-developers'
property taxes.
¶25 Second, we consider whether certiorari review is
appropriate. We conclude that it is, because certiorari review
is the appropriate mechanism for a court to test the validity of
a legislative determination. The record before us, however,
does not contain a municipal record sufficient to enable our
review. Accordingly, we remand to the circuit court for
certiorari review of Plaintiffs' first and second claims.
14
No. 2015AP1858
A. Standing
¶26 The circuit court's and court of appeals' decisions
relied on standing as grounds for dismissal. Here, we analyze
Plaintiffs' complaint to determine whether it states a claim
upon which relief may be granted. See State v. Castillo, 213
Wis. 2d 488, 492, 570 N.W.2d 44 (1997) ("An appellate court
should decide cases on the narrowest possible grounds."). In
doing so, we assume without deciding that Plaintiffs had
standing to bring their claims.
B. Failure To State A Claim
¶27 "A motion to dismiss for failure to state a claim
tests the legal sufficiency of the complaint." Data Key
Partners, 356 Wis. 2d 665, ¶19. "[T]he sufficiency of a
complaint depends on [the] substantive law that underlies the
claim made because it is the substantive law that drives what
facts must be pled." Id., ¶31. In determining whether a
complaint sufficiently alleges a claim upon which relief may be
granted,14 we accept as true all facts pled and the reasonable
14
This standard is derived from Wis. Stat. § 802.02(1),
which states, in relevant part, as follows:
Contents of pleadings. A pleading or
supplemental pleading that sets forth a claim for
relief, whether an original or amended claim,
counterclaim, cross claim or 3rd-party claim, shall
contain all of the following:
(continued)
15
No. 2015AP1858
inferences therefrom; we do not, however, accept as true any
legal conclusions stated in the complaint. Id., ¶19.
"Therefore, it is important for a court considering a motion to
dismiss to accurately distinguish pleaded facts from pleaded
legal conclusions." Id.
1. Findings under Wis. Stat. § 66.1105(4)(gm)4.a.
a. The substantive law
¶28 Wisconsin Stat. § 66.1105(4) states, in relevant part,
as follows:
Creation of tax incremental districts and
approval of project plans. In order to implement the
provisions of this section, the following steps and
plans are required: . . .
(gm) Adoption by the local legislative body of a
resolution which: . . .
4. Contains findings that:
a. Not less than 50%, by area, of the real
property within the district is at least one of the
following: a blighted area . . . .
§ 66.1105(4)(gm)4.a. The term "blighted area" is defined, in
relevant part, as follows:
An area, including a slum area, in which the
structures, buildings or improvements, which by reason
of dilapidation, deterioration, age or obsolescence,
(a) A short and plain statement of the claim,
identifying the transaction or occurrence or series of
transactions or occurrences out of which the claim
arises and showing that the pleader is entitled to
relief.
§ 802.02(1)(a).
16
No. 2015AP1858
inadequate provision for ventilation, light, air,
sanitation, or open spaces, high density of population
and overcrowding, or the existence of conditions which
endanger life or property by fire and other causes, or
any combination of these factors is conducive to ill
health, transmission of disease, infant mortality,
juvenile delinquency, or crime, and is detrimental to
the public health, safety, morals or welfare.
§ 66.1105(2)(ae)1.a.
b. The allegations in Plaintiffs' complaint
¶29 With regard to this claim, Plaintiffs' complaint
alleged the following facts:
29. The City and the JRB created TID #10 and
amended and expanded TID #8 exclusively for the
alleged purpose of addressing blighted areas. None of
the three remaining statutory purposes for creating a
TID were invoked in connection with or stated by the
city or the JRB to be the basis for the creation of
TID #10 or the amendment to TID #8.
51. On September 9, 2014, the City Common
Council voted 8-3 to adopt a resolution approving
Amendment No. 3 to TID #8.
58. [O]n October 14, 2014, the City Council
voted 7-3 to adopt a Resolution approving the creation
of TID #10.
72. The Resolution adopted by the City Council
approving Amendment No. 3 to TID #8 contains a
conclusory assertion that "not less than 50%, by area,
of the real property within the amended boundary area
of the District is a 'blighted area.'" The City
Council did not articulate the factual basis for this
conclusory statement and the record before the City
Council contains no evidence to support its assertion.
83. The resolution adopted by the City Council
approving TID #10 contains a conclusory assertion that
"not less than 50%, by area, of the real property
within the boundary area of the District is a
'blighted area' and is in need of 'rehabilitation or
conservation' . . . ." The City Council did not
17
No. 2015AP1858
articulate the factual basis for this conclusory
statement and the record before the City Council
contains no evidence to support its assertion.[15]
c. These allegations are insufficient to state a
claim upon which relief may be granted.
¶30 To determine whether the allegations are sufficient to
state a claim upon which relief may be granted, we must
interpret the statute; specifically, we must determine what the
statute means when it requires that the local legislative body
adopt a "resolution which . . . [c]ontains findings." Wis.
Stat. § 66.1105(4)(gm)4. The interpretation of a statute is a
question of law that we review de novo. See, e.g., Estate of
Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903
N.W.2d 759.
¶31 Plaintiffs argue that the areas in question were not
actually blighted and that, "when the legislature established
15
These allegations span the first and second claims of
Plaintiffs' complaint, which address TID 8 and TID 10,
respectively. With regard to both claims, Plaintiffs' complaint
also alleged several legal conclusions: (1) that, under Wis.
Stat. § 66.1105(4)(gm)4.a., the City Common Council "was
required to make a finding that '[n]ot less than 50%, by area,
of the real property within the district is . . . a blighted
area'"; (2) that "to properly make such a 'finding' the City
Council is required to articulate the basis for its finding and
the evidence of record that supports its action"; (3) that "the
City Council could not reasonably have concluded that the area
was blighted"; and (4) that, if a TID "does not actually serve
to eliminate blight, it lacks a public purpose and therefore
represents an unconstitutional expenditure of public funds." We
disregard Plaintiffs' legal conclusions because "legal
conclusions stated in the complaint are not accepted as true,
and [] are insufficient to enable a complaint to withstand a
motion to dismiss." Data Key Partners v. Permira Advisers LLC,
2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693.
18
No. 2015AP1858
conditions for diverting tax money for the benefit of private
parties, it intended to permit such diversion only where those
conditions actually exist." In this regard, Plaintiffs argue
that "[c]ourts are more than capable of evaluating a factual
determination made by a municipal body," and "no Wisconsin court
has ever held that declaratory judgment actions may not be used
to challenge" TIDs. Moreover, they argue that where "the TIDs
do not in fact work to eliminate blight, they lack a public
purpose and are unconstitutional."16 The City argues that the
determination of blight is a legislative act and that Plaintiffs
"failed to plead sufficient facts to satisfy the bedrock
separation-of-powers principle that challenges to state and
local legislative acts should not be resolved by the judicial
process if they are 'fairly debatable.'" In this regard,
"[l]egislative acts enjoy a high level of judicial deference"
and the complaint "does not demonstrate the duly authorized City
Council . . . [determinations] were clearly in error."
Moreover, the complaint "does not demonstrate it is 'clear and
palpable that there can be no benefit to the public'"; thus,
Plaintiffs have not stated a claim for violation of the public
16
The public purpose doctrine is the rule that "there can
be no expenditure of public funds for a private purpose." State
ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 48,
205 N.W.2d 784 (1973) (quoting State ex rel. Singer v. Boos, 44
Wis. 2d 374, 381, 171 N.W.2d 307 (1969)). "No specific clause
in the constitution establishes the public purpose doctrine.
However, it is a well-established constitutional tenet." Id. at
47-48.
19
No. 2015AP1858
purpose doctrine. We conclude that Plaintiffs' complaint was
properly dismissed as to declaratory judgment on this issue
because the City Common Council's findings of blight are
legislative determinations that do not present justiciable
issues of fact or law.
¶32 "[S]tatutory interpretation begins with the language
of the statute." State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Here,
the statute states, in relevant part, as follows:
In order to implement the provisions of this section,
the following steps and plans are
required: . . . Adoption by the local legislative body
of a resolution which . . . [c]ontains findings
that . . . [n]ot less than 50%, by area, of the real
property within the district is at least one of the
following: a blighted area . . . .
Wis. Stat. § 66.1105(4)(gm)4.a. "All words and phrases shall be
construed according to common and approved usage; but technical
words and phrases and others that have a peculiar meaning in the
law shall be construed according to such meaning." Wis. Stat.
§ 990.01(1); see also Kalal, 271 Wis. 2d 633, ¶45; Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 69-77 (2012) ("Ordinary-Meaning Canon").
¶33 "Findings" is not a defined term in the statute. The
word "findings" is also not defined in Black's Law Dictionary,
which instead refers the reader to the following entry for
"finding of fact": "A determination by a judge, jury, or
administrative agency of a fact supported by the evidence in the
record . . . ." Finding of fact Black's Law Dictionary 749
20
No. 2015AP1858
(10th ed. 2014). Given this ordinary meaning of "findings", the
plain language of the statute does not require that the local
legislative body——here, the City Common Council——itemize the
evidence in the record that supports its finding of blight.
¶34 This plain language interpretation is supported by the
context of surrounding and closely-related statutes. See Kalal,
271 Wis. 2d 633, ¶46 ("[S]tatutory language is interpreted in
the context in which it is used; . . . in relation to the
language of surrounding or closely-related statutes."). In a
closely-related statute, the legislature has demonstrated that
it is fully capable of specifying when findings of blight must
be explained by itemized evidence. See Wis. Stat.
§ 32.03(6)(c)4. Chapter 32 governs the acquisition of condemned
property vis-à-vis eminent domain, including municipal
acquisition of blighted properties under chapter 66. See, e.g.,
Wis. Stat. § 66.1331(4)(a)3., (4)(b); Wis. Stat.
§ 66.1333(5)(a)3., (5)(b)1. Section 32.03(6) limits this method
of acquiring blighted properties by requiring that "the
condemnor shall make written findings and provide a copy of the
findings to the owner of the property. The findings shall
include . . . [a] finding that the owner's property is blighted
and the reasons for that finding." § 32.03(6)(c)4. (emphasis
added). Thus, the legislature is fully capable of specifying
when the reasons underlying a finding of blight must be given,
and we should not read into Wis. Stat. § 66.1105(4)(gm)4.a. such
a requirement where it is not specified. See Scalia & Garner,
21
No. 2015AP1858
supra ¶32 at 93 ("Nothing is to be added to what the text states
or reasonably implies.").
¶35 This interpretation is reinforced by the surrounding
blight-elimination statutes in chapter 66. For example, Wis.
Stat. § 66.1331, commonly known as the "Blighted Area Law,"
requires only "the adoption of a resolution by the local
legislative body declaring the area to be a blighted area in
need of redevelopment." § 66.1331(5)(b)1. Similarly, Wis.
Stat. § 66.1333, commonly known as the "Blight Elimination and
Slum Clearance Act," requires only "the adoption by the local
legislative body of a resolution declaring in substance that
there exists within the city a need for blight elimination, slum
clearance and urban renewal programs and projects."
§ 66.1333(3)(a)2.17 Here, Wis. Stat. § 66.1105, commonly known
as the "Tax Increment Law," requires only the "[a]doption by the
local legislative body of a resolution which . . . [c]ontains
findings that . . . [n]ot less than 50%, by area, of the real
property within the district is . . . a blighted area."
17
In addition to chapters 32 and 66, "blight" is discussed
in chapter 30, relating to the construction, repair, or
maintenance of harbor improvements, see Wis. Stat.
§§ 30.121(3w)(b), 30.30(3)(b); in chapter 60, relating to the
miscellaneous powers of town housing authorities, see Wis. Stat.
§ 60.23(27); in chapter 67, relating to the procedure for
issuing bonds to finance the elimination of blight, see Wis.
Stat. § 67.05(5)(b); and in chapter 292, relating to exemptions
for local government units from hazardous waste contamination
penalties and requirements for properties acquired for the
purpose of blight elimination, see Wis. Stat.
§§ 292.11(9)(e)1m.(d), 292.23(2)(d), 292.26(2)(d).
22
No. 2015AP1858
§ 66.1105(4)(gm)4.a. Thus, the blight-elimination provisions in
chapter 66 are all similar in that none of them require a
specified rationale or itemization of supporting evidence.
¶36 Moreover, and perhaps more importantly, this
interpretation is reasonable because findings of blight are
legislative determinations that "do[] not raise justiciable
issues of fact or law." Joint Sch. Dist. No. 1 v. State Appeal
Bd., 56 Wis. 2d 790, 794, 203 N.W.2d 1 (1973). In Wis. Stat.
§ 66.1105, "blighted area" means:
An area, including a slum area, in which the
structures, buildings or improvements, which by reason
of dilapidation, deterioration, age or obsolescence,
inadequate provision for ventilation, light, air,
sanitation, or open spaces, high density of population
and overcrowding, or the existence of conditions which
endanger life or property by fire and other causes, or
any combination of these factors is conducive to ill
health, transmission of disease, infant mortality,
juvenile delinquency, or crime, and is detrimental to
the public health, safety, morals or welfare.
§ 66.1105(2)(ae)1.a. And this is substantially similar to the
definition of "blighted area" in all of the blight-elimination
statutes:
"Blighted area" means any area, including a slum
area, in which a majority of the structures are
residential or in which there is a predominance of
buildings or improvements, whether residential or
nonresidential, and which, by reason of dilapidation,
deterioration, age or obsolescence, inadequate
provision for ventilation, light, air, sanitation, or
open spaces, high density of population and
overcrowding, or the existence of conditions which
endanger life or property by fire and other causes, or
any combination of these factors, is conducive to ill
health, transmission of disease, infant mortality,
23
No. 2015AP1858
juvenile delinquency and crime, and is detrimental to
the public health, safely, morals or welfare.
Wis. Stat. § 66.1331(3)(a).
"Blighted area" means . . . [a]n area, including
a slum area, in which there is a predominance of
buildings or improvements, whether residential or
nonresidential, which by reason of dilapidation,
deterioration, age or obsolescence, inadequate
provision for ventilation, light, air, sanitation, or
open spaces, high density of population and
overcrowding, or the existence of conditions which
endanger life or property by fire and other causes, or
any combination of such factors id conducive to ill
health, transmission of disease, infant mortality,
juvenile delinquency, or crime, and is detrimental to
the public health, safety, morals or welfare.
Wis. Stat. § 66.1333(2m)(b)1.
¶37 The key language in each of these statutes is that the
"area," in its current state, "is detrimental to the public
health, safety, morals, or welfare." "Public safety, public
health, [and] morality . . . are some of the more conspicuous
examples of the traditional application of the police power to
municipal affairs," Berman v. Parker, 348 U.S. 26, 32 (1954),
and a "municipality's exercise of its police power has
traditionally been accorded deference by reviewing courts."
Nowell v. City of Wausau, 2013 WI 88, ¶46, 351 Wis. 2d 1, 838
N.W.2d 852. "It is to be remembered that we are dealing with
one of the most essential powers of government, one that is the
least limitable." Id.18
18
Legislative exercise of the police power is delegable,
and its delegation to cities regarding matters of redevelopment
has been upheld against constitutional attack on numerous
occasions. See, e.g., David Jeffrey Co. v. City of Milwaukee,
267 Wis. 559, 590, 66 N.W.2d 362 (1954).
(continued)
24
No. 2015AP1858
¶38 When exercised, the police power "may, indeed, seem
harsh in its exercise, [and] usually is on some individual."
Id. The act of condemnation for the purpose of eliminating
blight is no exception: "to condemn unoffending
property . . . is repugnant to the concept of the fundamental
right of private property." David Jeffrey Co. v. City of
Milwaukee, 267 Wis. 559, 585, 66 N.W.2d 362 (1954). "[B]ut the
imperative necessity for [the police power] precludes any
limitation upon it when not exerted arbitrarily." Nowell, 351
Wis. 2d 1, ¶46. In this regard, it must also be remembered that
"the law is directed against slum and blighted areas, not
individual structures," David Jeffrey Co., 276 Wis. at 585, and
that "the amount and character of land to be taken for the
project and the need for a particular tract to complete the
integrated plan rests in the discretion of the legislative
branch."19 Berman, 348 U.S. at 35-36; see also David Jeffrey
Here, by its enactment, the legislature has
declared the policy and fixed the standards for the
administration of the law. . . . It defines blighted
area. It gives to cities the responsibility of
determining the size of an area to be redeveloped, the
costs involved and the details of the redevelopment
plan, the method and mechanics of clearance, and the
determination of future uses. Obviously, the
legislature could not make specific provisions for all
of these items, for the very reason that the size,
extent, and character of the blighted areas, and the
plans for redevelopment, differ in each city where the
slum and blight condition exists.
Id. See also Hammermill, 58 Wis. 2d at 57-59.
19
In fact, Wis. Stat. § 66.1331 explicitly states:
(continued)
25
No. 2015AP1858
Co., 267 Wis. at 578 ("The use of all property is subject to the
police power of the state, to be exercised for the protection of
the health, safety, and general welfare of the public, either
Findings and declaration of necessity. It is
found and declared that there have existed and
continue to exist in citied within the state,
substandard, insanitary, deteriorated, slum and
blighted areas which constitute a serious and growing
menace, injurious and inimical to the public health,
safety, morals and welfare of the residents of the
state. The existence of these areas contributes
substantially and increasingly to the spread of
disease and crime . . . constitutes an economic and
social liability, substantially impairs or arrests the
sound growth of cities, and retards the provision of
housing accommodations. This menace is beyond remedy
and control solely by regulatory process in the
exercise of the police power and cannot be dealt with
effectively by the ordinary operations of private
enterprise without the aids provided in this section.
The acquisition of property for the purpose of
eliminating substandard, insanitary, deteriorated,
slum or blighted conditions or preventing recurrence
of these conditions in the area, the removal of
structures and improvement of sites, the disposition
of the property for redevelopment incidental to these
activities, and any assistance which may be given by
cities or any other public bodies, are public uses and
purposes for which public money may be expended and
the power of eminent domain exercised. The necessity
in the public interest for the provision of this
section is declared as a matter of legislative
determination.
§ 66.1331(2); see also Wis. Stat. § 66.1333(2). The fact that
these specific legislative findings are absent from Wis. Stat.
§ 66.1105 does not surprise us, or cause us concern, however,
because the Tax Increment Statute simply enables municipalities
to work with private parties on public improvements it would
otherwise be authorized to undertake itself under §§ 66.1331 and
66.1333.
26
No. 2015AP1858
directly or through subordinate agencies to whom the exercise of
such prerogative may be entrusted.").
¶39 "Legislative determination[s] of public policy
questions [do] not raise justiciable issues of fact or law."
Joint Sch. Dist. No. 1, 56 Wis. 2d at 794; see also Buhler v.
Racine Cty., 33 Wis. 2d 137, 146, 146 N.W.2d 403 (1966)
("However, since zoning is a legislative function, judicial
review is limited and judicial interference restricted to cases
of abuse of discretion, excess of power, or error of law.").
This is because de novo review of a legislative determination
violates the doctrine of separation of powers. See Joint Sch.
Dist. No. 1, 56 Wis. 2d at 795; Buhler, 33 Wis. 2d at 147
("[T]he court, because of the fundamental nature of its power,
cannot substitute its judgment for that of the zoning authority
in the absence of statutory authorization."); see also Bisenius
v. Karns, 42 Wis. 2d 42, 53-54, 165 N.W.2d 377 (1969) ("[O]nce
within the area of proper exercise of police power, it is for
the legislature to determine what regulations, restraints or
prohibitions are reasonably required to protect the public
safety."). Therefore, a finding of blight under Wis. Stat.
§ 66.1105(4)(gm)4.a. is not susceptible to an action for
declaratory judgment because, as a legislative determination, it
does not give rise to justiciable issues of fact or law.20
20
We note the dissent's focus on our discussion of Joint
School Dist. No. 1 v. State Appeal Bd., 56 Wis. 2d 790, 203
N.W.2d 1, and Buhler v. Racine Cty., 33 Wis. 2d 137, 146
N.W.2d 403 (1966)——which we cite for the broad proposition that
legislative findings, in general, do not raise justiciable
(continued)
27
No. 2015AP1858
¶40 Thus, Plaintiffs have failed to state claims upon
which relief may be granted because a court cannot issue a
declaration regarding the wisdom of a legislative determination.
See, e.g., Aicher v. Wis. Patients Compensation Fund, 2000 WI
98, ¶57, 237 Wis. 2d 99, 613 N.W.2d 849 ("It is not our role to
determine the wisdom or rationale underpinning a particular
legislative pronouncement."); Gottlieb v. City of Milwaukee, 33
Wis. 2d 408, 415, 147 N.W.2d 633 (1967) ("We are not concerned
with the wisdom of what the legislature has done."); Buhler, 33
Wis. 2d at 146-47.21
issues of fact or law——and its misapprehension of our
discussion of Berman v. Parker, 348 U.S. 26 (1954), David
Jeffrey Co., 267 Wis. 599, and Nowell v. City of Wausau, 2013 WI
88, ¶46, 351 Wis. 2d 1, 838 N.W.2d 852——which we rely on for the
proposition that a finding of blight under Wis. Stat.
§ 66.1105(4)(gm)4.a. is a legislative one. From this, we are
compelled to conclude that the dissent does not seem to
understand the significance of the difference between
legislative facts/findings and judicial facts/findings. See,
e.g., Ann Woolhandler, Rethinking the Judicial Reception of
Legislative Facts, 41 Vand. L. Rev. 111, 113-16 (1988).
21
Because we conclude that the findings of blight are
legislative determinations, we need not address Plaintiffs'
coordinate claims regarding the public purpose doctrine, which
assume that these determinations are reducible to judicial fact
finding ("If a [TID] ostensibly created to address issues of
blight does not actually serve to eliminate blight, it lacks a
public purpose and therefore represents an unconstitutional
expenditure of public funds.").
28
No. 2015AP1858
2. Assertions under Wis. Stat. § 66.1105(4m)(b)2.
a. The substantive law
¶41 Wisconsin Stat. § 66.1105(4m) states, in relevant
part, as follows:
Joint review board. (a) Any city that seeks to
create a tax incremental district, amend a project
plan, [or] have a district's tax incremental base
redetermined under sub (5)(h) . . . shall convene a
temporary joint review board under this paragraph, or
a standing joint review board under sub (3)(g), to
review the proposal. . . .
(b) 1. The board shall review the public
record, planning documents and the resolution passed
by the local legislative body or planning commission
under sub (4)(gm) . . . .
2. Except as provided in subd. 2m., no tax
incremental district may be created and no project
plan may be amended unless the board approves the
resolution adopted under sub (4)(gm) . . . by a
majority vote within 30 days after receiving the
resolution. . . . The board may not approve the
resolution under this subdivision unless the board's
approval contains a positive assertion that, in its
judgment, the development described in the documents
the board has reviewed under subd. 1. would not occur
without the creation of a tax incremental district.
§ 66.1105(4m)(a), (b)1.-2.
b. The allegations in Plaintiffs' complaint
¶42 With regard to this claim, Plaintiffs' complaint
alleges the following facts:
44. [D]evelopment plans unrelated to the
Confluence Project were already underway with respect
to certain of the historic properties within TID #10.
For example, the Kline Department Store building was
in the hands of a new owner who had publicly announced
a redevelopment plan for that property. And the owner
of the historic property at 2 South Barstow Street had
already entered into an agreement with the City for
29
No. 2015AP1858
the renovation and redevelopment of that building with
City-negotiated requirements that its historic
character be preserved.
45. . . . The City's decision . . . to fund the
Confluence Project . . . forced the alternative plans
to be abandoned . . . .
53. On September 26, 2014, the JRB adopted a
resolution approving Amendment No. 3 to TID #8.
54. The statement in the resolution that in the
judgment of the JRB "the development described in the
Amendment [to TID #8] would not occur without the
amendment" is neither supported by record evidence nor
factually correct.
60. On October 22, 2014, the JRB adopted a
Resolution approving the creation of TID #10.
61. The statement in the Resolution that in the
judgment of the JRB "the development described in the
Project Plan would not occur without the creation
[presumably of TID #10]" is neither supported by
record evidence nor is factually correct.
76. . . . The JRB did not "review the public
record, planning documents, and the resolution passed
by" the City Council for Amendment No 3. to TID
#8 . . . ; it considered only a conclusory three-page
"Joint Review Board Report."
30
No. 2015AP1858
87. . . . The JRB did not "review the public
record, planning documents and the resolution passed
by" the City Council [for creation of TID #10].[22]
(Alterations in ¶¶54 and 61 in original.)
c. These allegations are insufficient to state a claim upon
which relief may be granted.
¶43 To determine whether these allegations state a claim
upon which relief may be granted, we must interpret the statute;
specifically, we must determine what the statute means when it
requires that that the JRB's "approval contain[] a positive
assertion." The interpretation of a statute is a question of
law that we review de novo. See Estate of Miller, 378
Wis. 2d 358, ¶25.
¶44 Plaintiffs argue that redevelopment in the areas in
question would have occurred without the TIDs and that, "when
the legislature established conditions for diverting tax money
for the benefit of private parties, it intended to permit such
diversion only where those conditions actually exist." In this
regard, "[c]ourts are more than capable of evaluating a factual
determination made by a municipal body," and "no Wisconsin court
has ever held that declaratory judgment actions may not be used
22
These allegations span the first and second claims of
Plaintiffs' complaint, which address TID 8 and TID 10,
respectively. With regard to both claims, Plaintiffs' complaint
also alleged that the JRB could not have "reasonably concluded"
"that development would not occur . . . without tax incremental
financing." This is a legal conclusion which we disregard
because "legal conclusions stated in the complaint are not
accepted as true, and [] are insufficient to enable a complaint
to withstand a motion to dismiss." Data Key Partners, 356
Wis. 2d 665, ¶19.
31
No. 2015AP1858
to challenge" TIDs. Moreover, where the "development would
occur in the area without a TID, the TIDs do not serve [a]
public purpose[]." The City argues that the JRB's "but for"
assertions are legislative acts and that Plaintiffs "failed to
plead sufficient facts to satisfy the bedrock separation-of-
powers principle that challenges to state and local legislative
acts should not be resolved by the judicial process if they are
'fairly debatable.'" In this regard, "[l]egislative acts enjoy
a high level of judicial deference" and the complaint "does not
demonstrate the duly authorized . . . Joint Review Board
[determinations] were clearly in error." Moreover, the
complaint "does not demonstrate it is 'clear and palpable that
there can be no benefit to the public'"; thus, Plaintiffs have
not stated a claim for violation of the public purpose doctrine.
We conclude that Plaintiffs' complaint was properly dismissed as
to declaratory judgment on this issue because the JRB's "but
for" assertions are legislative determinations that do not
present justiciable issues of fact or law.
¶45 "[S]tatutory interpretation begins with the language
of the statute." Kalal, 271 Wis. 2d 633, ¶45. Here, the
statute states, in relevant part, as follows:
[N]o tax incremental district may be created and no
project plan may be amended unless the board approves
the resolution adopted under sub. (4)(gm) . . . . The
board may not approve the resolution under this
subdivision unless the board's approval contains a
positive assertion that, in its judgment, the
development described in the documents the board has
reviewed under subd. 1. would not occur without the
creation of a tax incremental district.
32
No. 2015AP1858
Wis. Stat. § 66.1105(4m)(b)2. "All words and phrases shall be
construed according to common and approved usage; but technical
words and phrases and others that have a peculiar meaning in the
law shall be construed according to such meaning." Wis. Stat.
§ 990.01(1); see also Kalal, 271 Wis. 2d 633, ¶45; Scalia &
Garner, supra ¶32 at 69-77 ("Ordinary-Meaning Canon").
¶46 "Positive assertions" is not a defined term in the
statute. The word "assertion" is, however, defined in Black's
Law Dictionary: "1. A declaration[23] or allegation.[24] 2. A
person's speaking, writing, acting, or failing to act with the
intent of expressing a fact or opinion; the act or an instance
of engaging in communicative behavior." Assertion Black's Law
Dictionary, supra ¶33 at 139. Given this ordinary meaning of
"assertion," the plain language of the statute does not require
that the JRB itemize the evidence in the record that supports
its "but for" assertion.
¶47 This plain language interpretation is supported by our
analysis above because, as with the City Common Council's
finding of blight, "[t]he Joint Review Board's task was to look
at the TIF District as a whole and determine whether development
would occur without the use of tax incremental financing."
State ex rel. Olson v. City of Baraboo Joint Review Bd.,
23
"Declaration" is defined: "A formal statement,
proclamation, or announcement . . . ." Declaration Black's Law
Dictionary 493 (10th ed. 2014).
24
"Allegation" is defined: "A declaration that something is
true . . . ." Allegation id. at 90.
33
No. 2015AP1858
2002 WI App 64, ¶29, 252 Wis. 2d 628, 643 N.W.2d 796. The issue
is not whether one owner of one structure plans to redevelop one
property, because "the piecemeal approach, the [remediation] of
individual structures . . . would be only [] palliative."
Berman, 348 U.S. at 34. Rather, the redevelopment projects
permitted under the statute are of an integrated nature so as to
prevent the recurrence of blight. This determination is
holistic and wholly within the discretion of the legislature.
Therefore, a "but for" assertion under Wis. Stat.
§ 66.1105(4m)(b)2. is not susceptible to an action for
declaratory judgment because, as a legislative determination, it
does not give rise to justiciable issues of fact or law.
¶48 Thus, Plaintiffs have failed to state claims upon
which relief may be granted because a court cannot issue a
declaration regarding the wisdom of a legislative determination.
See, e.g., Aicher, 237 Wis. 2d 99, ¶57 ("It is not our role to
determine the wisdom or rationale [of] a particular legislative
pronouncement."); Gottlieb, 33 Wis. 2d at 415 ("We are not
concerned with the wisdom of what the legislature has done.");
Buhler, 33 Wis. 2d at 146-47.
3. Cash grants under Wis. Stat. § 66.1105(2)(f)1.a.
a. The substantive law
¶49 Wisconsin Stat. § 66.1105(2)(f)1. states, in relevant
part, as follows:
"Project costs" mean any expenditures made or
estimated to be made or monetary obligations incurred
or estimated to be incurred by the city which are
listed in a project plan as costs of public works or
34
No. 2015AP1858
improvements within a tax incremental district . . . .
"Project costs" include:
a. Capital costs including, but not limited to,
the actual costs of the construction of public works
or improvements, new buildings, structures, and
fixtures; the demolition, alteration, remodeling,
repair or reconstruction of existing buildings,
structures and fixtures other than the demolition of
listed properties as defined in s. 44.31(4) . . . .
§ 66.1105(2)(f)1.a. Section 44.31(4) defines "listed property"
to mean "property which is listed on the national register of
historic places in Wisconsin or the state register of historic
places, or both." Wis. Stat. § 44.31(4).
b. The allegations in Plaintiffs' complaint
¶50 With regard to this claim, Plaintiffs' complaint
alleges the following facts:
42. . . . The buildings that have been purchased
and subsequently demolished by the developer include
the Kline Department Store, which was listed on the
National Register of Historic Places. Also demolished
were several other buildings within the Confluence
Commercial District, also on the National Register.
43. A substantial part of the development costs
actually incurred by the developer thus includes the
costs of demolition as well as the purchase price of
the Kline Department Store building and other
buildings that are listed properties pursuant to Wis.
Stat. § [44.31(4)].
46. The Project Plan for TID #10 indicates that
$10,400,000 of the project costs will come in the form
of "contributions"——i.e. cash payments from the City——
to the Confluence developer. These contributions are
to be paid in the form of cash grants to the
partnership to compensate it for development costs.
The funds . . . depend upon its achieving specified
milestones in the project, but they are paid to the
developer in a lump sum once those milestones have
been reached. Neither the Project Plan for TID #10
35
No. 2015AP1858
nor the agreements with the developer clearly provide
that the lump sum grants may not be used by the
Confluence developer to reimburse itself for some or
all of the costs of purchasing then demolishing listed
properties that it had already incurred.
94. . . . Given the lump sum character of the
developer payments, there is in fact no way to assure
that the payments have been used as reimbursement for
certain already incurred costs, and not used as
reimbursement for others.[25]
c. These allegations are insufficient to state a claim upon
which relief may be granted.
¶51 To determine whether these allegations state a claim
upon which relief may be granted we must interpret the statute.
The interpretation of a statute is a question of law that we
review de novo. See Estate of Miller, 378 Wis. 2d 358, ¶25.
¶52 Plaintiffs argue that they "alleged that TIF funds for
TID #10 were in fact being used to reimburse the developer for
the acquisition and destruction of historic properties,"
contrary to Wis. Stat. § 66.1105(2)(f)1.a., and that to conclude
otherwise would mean that "reimbursement for the destruction of
historic buildings can be challenged only when TID funds are
expressly earmarked for demolition." The City argues that
25
With regard to this claim, Plaintiffs' complaint also
alleged the following legal conclusions: (1) that, under Wis.
Stat. § 66.1105(2)(f)1.a., "tax incremental funds cannot be used
to compensate a developer for the costs associated with the
destruction of listed properties"; and (2) that "the TID #10
project plan . . . unlawfully reimburses the developer for such
costs." We disregard Plaintiffs' legal conclusions because
"legal conclusions stated in the complaint are not accepted as
true, and [] are insufficient to enable a complaint to withstand
a motion to dismiss." Data Key Partners, 356 Wis. 2d 665, ¶19.
36
No. 2015AP1858
Plaintiffs' claim here fails because it is moot, as the
buildings in question have already been demolished, and because
the complaint "fails to plead facts demonstrating any connection
between TIF funds and historic building acquisition or
demolition." We conclude that Plaintiffs' third claim was
properly dismissed because it does not allege facts which
plausibly establish that the City's cash grant for TID 10 was
used to reimburse the developer's costs associated with
demolishing historic buildings.
¶53 "[S]tatutory interpretation begins with the language
of the statute." Kalal, 271 Wis. 2d 633, ¶45. Wisconsin Stat.
§ 66.1105(2)(f) states, in relevant part, as follows:
"Project costs" include . . . [c]apital costs
including . . . the demolition, alteration,
remodeling, repair or reconstruction of existing
buildings, structures and fixtures other than the
demolition of [property which is listed on the
national register of historic places in Wisconsin or
the state register of historic places, or both].
§ 66.1105(2)(f)1.a. The plain language of this provision
establishes that it would be a violation of the statute for a
developer to use money allocated for "project costs" to pay for
the demolition of historic buildings.
¶54 This is not, however, what Plaintiffs alleged.
Although Plaintiffs alleged that the $10.4 million cash grant
was for "project costs," they did not allege facts which
establish that the developer in fact used the money from the
cash grant to pay for the demolition of Kline Department Store
or other historic buildings. Nor did they allege facts which
37
No. 2015AP1858
demonstrate that the developer was likely to do so. Plaintiffs
alleged only that "there is . . . no way to assure" that the
developer did not use the cash grant to pay for the demolition
of historic buildings.
¶55 Thus, Plaintiffs' allegations fail to state a claim
upon which relief can be granted because, even if taken as true,
they establish only the possibility that funds could be used to
pay for the demolition of historic buildings. This is not
"enough heft to 'sho[w] that the pleader is entitled to
relief.'" Data Key Partners, 356 Wis. 2d 665, ¶26 (alteration
in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554,
557 (2007)). "'[I]t gets the complaint close to stating a
claim, but without some further factual enhancement it stops
short of the line between possibility and plausibility of
entitle[ment] to relief.'" Id. (second alteration in original)
(quoting Bell Atl. Corp., 550 U.S. at 557).
4. Cash grants under Article VIII, Section 1
a. The substantive law
¶56 Article VIII, Section 1 of the Wisconsin Constitution
states, in relevant part, as follows:
The rule of taxation shall be uniform but the
legislature may empower cities, villages or towns to
collect and return taxes on real estate located
therein by optional methods.
Wis. Const. art. VIII, § 1.
38
No. 2015AP1858
b. The allegations in Plaintiffs' complaint
¶57 With regard to this claim, Plaintiffs' complaint
alleges the following facts:
42. The developer purchased the properties on
the Confluence Project site in three separate
transactions in May, 2012, April, 2014, and June,
2014 . . . .
106. [T]he project plans provide for millions of
dollars of incremental TID taxes to be paid directly
to the owner of the property within the TID, with no
meaningful restrictions except that the developer use
them to reimburse itself for "project costs."[26]
c. These allegations are insufficient to state a claim upon
which relief may be granted.
¶58 To determine whether these allegations state a claim
upon which relief may be granted we must interpret the statute
and Article VIII, Section 1 of the Wisconsin Constitution
(hereinafter the "Uniformity Clause"). The interpretation of a
statute is a question of law that we review de novo. See Estate
of Miller, 378 Wis. 2d 358, ¶25. The interpretation of a
constitutional provision is also a question of law that we
26
With regard to this claim, Plaintiffs' complaint also
alleged that "[t]his arrangement functions as a tax rebate or
tax credit, and . . . constitutes a violation of the Uniformity
Clause . . . [b]ecause the developer here is being taxed at a
more favorable rate than an owner of identically-assessed
property elsewhere." This is a legal conclusion, which we
disregard because "legal conclusions stated in the complaint are
not accepted as true, and [] are insufficient to enable a
complaint to withstand a motion to dismiss." Data Key Partners,
356 Wis. 2d 665, ¶19.
39
No. 2015AP1858
review de novo. Madison Teachers, Inc. v. Walker, 2014 WI 99,
¶13, 358 Wis. 2d 1, 851 N.W.2d 337.
¶59 Plaintiffs argue that the TIDs violate the Uniformity
Clause because "the owner is paying the same formal rate as
everyone else, but is getting paid a reimbursement that lowers
its effective rate"; thus, the cash grants constitute "an
unconstitutional tax rebate." Plaintiffs argue that this is an
as-applied challenge because they "seek[] only to invalidate
these particular TIDs" and "[a] ruling for [Plaintiffs] on this
claim would not bar all cash grants under [Wis. Stat.]
§ 66.1105(2)(f)2.d." The City argues that the complaint "does
not plead sufficient facts to satisfy the burden necessary to
challenge the constitutional validity of a state statute"
because "[i]t is not sufficient to say reasonable minds may
disagree"; rather "[a]ny doubt as to constitutionality must be
resolved in favor of constitutionality." It also argues that
Plaintiff's claim is a facial challenge, and that Plaintiffs
have not successfully distinguished Sigma Tau, where this court
upheld the Tax Increment Law against such a challenge. We
conclude that Plaintiffs' fourth claim was properly dismissed
because it does not allege facts which plausibly establish that
the cash grants are intended or used to pay the property taxes
of owner-developers.
¶60 As a preliminary matter, we conclude that Plaintiffs
are attempting to raise an as-applied challenge to the
constitutionality of cash grant disbursements pursuant to Wis.
Stat. § 66.1105(2)(f)2.d. Our prior cases distinguish between
40
No. 2015AP1858
facial and as-applied challenges as follows: a facial challenge
is "[a] claim that a statute . . . always operates
unconstitutionally"; an as-applied challenge is "a claim that a
statute is unconstitutional on the facts of a particular case or
to a particular party." Olson v. Town of Cottage Grove,
2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, 749 N.W.2d 211 (citing
Black's Law Dictionary); see also Tammy W-G. v. Jacob T., 2011
WI 30, ¶¶46-48, 333 Wis. 2d 273, 797 N.W.2d 854; State v. Wood,
2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63. This
distinction is significant because, although the presumption
that a statute is constitutional applies in both facial and as-
applied challenges, in an as-applied challenge "there is no
presumption the statute has been applied in a constitutional
manner." Milewski v. Town of Dover, 2017 WI 79, ¶15, 377
Wis. 2d 38, 899 N.W.2d 303.
¶61 Here, Plaintiffs' claim is that cash grants to the
owner-developer violate the Uniformity Clause because they
effectively reimburse the owner-developer for property taxes
paid on the project property. These allegations have some
characteristics of both a facial challenge and an as-applied
challenge, as defined in our prior cases. In other words, one
could argue that the challenge is either. On the one hand, it
has the character of a facial challenge because, if Plaintiffs
are successful, the statute would be invalidated beyond these
particular TIDs; that is, all cash grants to all owner-
developers would be unconstitutional. On the other hand, it is
more of an as-applied challenge because, if Plaintiffs are
41
No. 2015AP1858
successful, this provision of the statute would not always
operate unconstitutionally; that is, Plaintiffs' allegations do
not challenge cash grants to developers who do not own the land
being developed. Thus, Plaintiffs' claim does not fit clearly
within one or the other of the traditional, categorical
definitions for constitutional challenges.
¶62 Some have reasoned that challenges like this exist
because there is no "sharp, categorical distinction between
facial and as-applied . . . challenges to the validity of
statutes." Richard H. Fallon, Jr., As-Applied and Facial
Challenges and Third-Party Standing, 113 Harvard L. Rev. 1321,
1336 (2000). Fallon opines that this is because "a litigant
must always assert that the statute's application to her case
violates the [c]onstitution"; thus, "determinations that
statutes are facially invalid properly occur only as logical
outgrowths of rulings on whether statutes may be applied to
particular litigants on particular facts." Id. at 1327-28.
Here, we conclude that Plaintiffs' claim is an as-applied
challenge because, even if Wis. Stat. § 66.1105(2)(f)2.d. is
invalid as Plaintiffs claim, the constitutional infirmity would
not invalidate all applications of this provision, nor would it
render the remainder of the statute invalid.
¶63 We have once before upheld Wis. Stat. § 66.1105
against a constitutional challenge. See Sigma Tau, 93
Wis. 2d 392. In Sigma Tau we concluded that "the Tax Increment
Law is constitutional" on its face because "[a]ll tax payers
within the territorial limits of each . . . district [] continue
42
No. 2015AP1858
to be taxed at a uniform rate based upon valuations uniformly
arrived at." Id. at 412.27 At that time, however, the Tax
Increment Law did not incorporate the particular provision at
issue here,28 and a statute once held to be constitutional, is
not "forever and always" constitutional, "regardless of any
legislative alterations."29 Voters, 376 Wis. 2d 479, ¶46. Thus,
27
In doing so, we distinguished two of our prior cases.
See State ex rel. La Follette v. Torphy, 85 Wis. 2d 94, 108, 270
N.W.2d 187 (1978) (concluding that the Improvements Tax Relief
Law violated the Uniformity Clause because its rebate credits
for certain property owners "lead[] to the indisputable
conclusion that taxpayers owning equally valuable property will
ultimately be paying disproportionate amounts of real estate
taxes."); Gottlieb v. City of Milwaukee, 33 Wis. 2d 408, 428-29,
147 N.W.2d 633 (1967) (concluding that the Urban Redevelopment
Law violated the Uniformity Clause because its suspension of
property taxes for redevelopment corporations constituted a
partial exemption). We do not perceive these cases to be
directly applicable to the issue here presented and therefore do
not analyze them further.
We note, however, that, as we pointed out in Torphy, "[t]he
initial question is whether the [law] is a tax statute subject
to the uniformity clause." 85 Wis. 2d at 104; see also State ex
rel. Harvey v. Morgan, 30 Wis. 2d 1, 10, 139 N.W.2d 585 (1966)
("The [question of whether chapter 580 violated the uniformity
clause] is relevant only if Ch. 580 is in fact a tax law.").
Neither party has presented arguments regarding whether the Tax
Increment Law is a tax law and, for the purposes of our
analysis, we assume without deciding that it is.
28
See 2003 Wis. Act 126, § 3.
29
In this regard, we note that the legislature made
numerous amendments to Wis. Stat. § 66.1105 since the 2013-14
version considered herein. See 2015 Wis. Act 60, §§ 32-36; 2015
Wis. Act 75; 2015 Wis. Act 96; 2015 Wis. Act 254, §§ 1-7; 2015
Wis. Act 255; 2015 Wis. Act 256, §§ 3-18; 2015 Wis. Act 257,
§§ 7-12; 2017 Wis. Act 58, §§ 19-21.
43
No. 2015AP1858
Sigma Tau is not dispositive on the issue here presented and we
undertake a de novo analysis.30
¶64 "[S]tatutory interpretation begins with the language
of the statute." Kalal, 271 Wis. 2d 633, ¶45. Wisconsin Stat.
§ 66.1105(2)(f)2. states, in relevant part, as follows:
Notwithstanding subd. 1., none of the following
may be included as project costs for any tax
incremental district for which a project plan is
approved . . .
d. Cash grants made by the city to owners,
lessees, or developers of land that is located within
the tax incremental district unless the grant
recipient has signed a development agreement with the
city, a copy of which shall be sent to the appropriate
joint review board or, if that joint review board has
been dissolved, retained by the city in the official
records for that tax incremental district.
Wis. Stat. § 66.1105(2)(f)2.d. Subdivision 1. lists the costs
that are "include[d]" within the definition of "[p]roject
costs": capital costs, financing costs, real property assembly
costs, professional service costs, imputed administrative costs,
relocation costs, organizational costs, project plan
implementation costs, infrastructure construction or alteration
costs, and lead contamination costs. Wis. Stat.
§ 66.1105(2)(f)1.a.—n. This list does not include property
taxes; thus, the plain language of the statute does not
affirmatively permit the use of cash grants to pay property
30
Our analysis here, however, does not in any way abrogate
or overrule Sigma Tau Gamma Fraternity House Corp. v. City of
Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85 (1980).
44
No. 2015AP1858
taxes. We presume, however——absent some textual evidence that
the legislature intended the word "include" to be interpreted as
a term of limitation——that the legislature's use of "include"
denominates a nonexclusive list. See State v. Popenhagen,
2008 WI 55, ¶¶43-47, 309 Wis. 2d 601, 749 N.W.2d 611. Thus, the
plain language of the statute also does not affirmatively
prohibit use of cash grants allocated for projects costs to pay
property taxes.
¶65 The fact that a statute does not affirmatively
prohibit a possibility is not, however, the standard. Rather,
[a]ll legislative acts are presumed constitutional and
we must indulge every presumption to sustain the law.
Any doubt that exists regarding the constitutionality
of the statute must be resolved in favor of its
constitutionality. Consequently, it is insufficient
for a party to demonstrate that the statute's
constitutionality is doubtful or that the statute is
probably unconstitutional. Instead, the presumption
can be overcome only if the party establishes the
statute's unconstitutionality beyond a reasonable
doubt.
Madison Teachers, Inc., 358 Wis. 2d 1, ¶13 (citations omitted).
Thus, to establish that a statute violates the Uniformity
Clause, a plaintiff must demonstrate beyond a reasonable doubt
that the statute contravenes the rule that "taxation shall be
uniform." Wis. Const. art. VIII, § 1. This is not what
Plaintiffs alleged. Plaintiffs did not allege facts which
establish that cash grants are intended to reimburse owner-
developers for property taxes. Nor did they allege facts which
establish that owner-developers in fact use cash grants to pay
property taxes, or that owner-developers are likely to do so.
45
No. 2015AP1858
Plaintiffs alleged only that a requirement that owner-developers
use cash grants for "project costs" imposes "no meaningful
restrictions."
¶66 Similarly, although Plaintiffs alleged that "millions
of dollars of incremental TID taxes [will] be paid directly to
the owner of property within the TID," they did not allege facts
which establish that the developer here in fact used that money
to pay its property taxes. Nor did they allege facts which
demonstrate that the developer here was likely to do so.
Plaintiffs alleged only that the project plan imposes "no
meaningful restrictions except that the developer use [the
money] to reimburse itself for 'project costs.'"
¶67 Thus, Plaintiffs' allegations fail to state a claim
upon which relief can be granted because, even if taken as true,
they establish only that the statute does not explicitly exclude
property taxes from the definition of "project costs"; in other
words, that the statute does not preclude the possibility that
developers could use cash grants to pay property taxes. This is
not sufficient to state a constitutional challenge under the
Uniformity Clause because such a possibility does not even
amount to an allegation that the statute is "probably
unconstitutional," let alone unconstitutional beyond a
reasonable doubt. Madison Teachers, Inc., 358 Wis. 2d 1, ¶13.
Moreover, Plaintiffs' allegations fail to state a claim upon
which relief can be granted because, even if taken as true, they
establish only the possibility that the developer here could use
the funds to pay property taxes. This is not "enough heft to
46
No. 2015AP1858
'sho[w] that the pleader is entitled to relief.'" Data Key
Partners, 356 Wis. 2d 665, ¶26 (alteration in original) (quoting
Bell Atl. Corp., 550 U.S. at 557). "'[I]t gets the complaint
close to stating a claim, but without some further factual
enhancement it stops short of the line between possibility and
plausibility of entitle[ment] to relief.'" Id. (second
alteration in original) (quoting Bell Atl. Corp., 550 U.S. at
557).
¶68 In sum, Plaintiffs' complaint was properly dismissed
as to declaratory judgment because it fails to state claims upon
which relief may be granted. The first and second counts fail
because the City Common Council's findings of blight and the
JRB's "but for" assertions are legislative determinations that
do not present justiciable issues of fact or law; the third
count fails because it does not allege facts which plausibly
establish that the City's cash grant for TID 10 was used to
reimburse the developer's costs associated with demolishing
historic buildings; and the fourth count fails because it does
not allege facts which plausibly establish that cash grants are
intended or used to pay developers' property taxes.
C. Certiorari Review
¶69 We conclude, however, that Plaintiffs' first and
second claims are reviewable under certiorari. Plaintiffs argue
that a "preference for certiorari review is an abdication of
judicial responsibility," and that it is insufficient because it
"would entail no discovery or other opportunity to assess
47
No. 2015AP1858
whether . . . [the] incantations of 'blight' and 'but for'
development are accurate."31 The City argues that common law
31
Plaintiffs cite three cases in support of their argument
that these are determinations susceptible to judicial fact
finding, none of which actually support their argument. In
Fenton v. Ryan, we concluded that whether a proposed village
possesses the requisite attributes is a question of judicial
character because, if the attributes are not present, "the
uniformity of town and county government guaranteed by the
Constitution is invaded," 140 Wis. 353, 359, 122 N.W.2d 756
(1909); such questions of constitutionality are judicial
questions. See, e.g., Gottlieb, 33 Wis. 2d at 415-16 ("We are
not concerned with the wisdom of what the legislature has done.
We are judicially concerned only when the statute clearly
contravenes some constitutional provision."). In Town of Mt.
Pleasant v. City of Racine, we held that a city's determination
of its own boundaries was a legislative determination, and the
judicial question was limited to whether the boundary lines were
"reasonable in the sense that they were not fixed arbitrarily,
capriciously, or in the abuse of discretion." 24 Wis. 2d 41,
46, 127 N.W.2d 757 (1964) (citing Town of Fond du Lac v. City of
Fond du Lac, 22 Wis. 2d 533, 126 N.W.2d 201 (1964)). And, in
Bechthold v. City of Wauwatosa, the petitioners challenged the
city's adherence to the procedure for advertising bids for
street repair, and the judicial questions were whether strict or
substantial compliance was required, and whether the undisputed
facts demonstrated that the city had complied, 228 Wis. 544,
551-58, 277 N.W. 657 (1938); Plaintiffs here do not dispute that
the City adhered to the correct procedure.
Plaintiffs also claim that "in at least three published
cases, TIF actions were brought as declaratory actions." Two of
these cases are distinguishable on the basis that they sought a
declaration of constitutionality, which, as noted above, is a
proper question for the court. See Kirley, 172 Wis. 2d 191;
Gottlieb, 33 Wis. 2d 408. The third case never reached the
declaratory question, and thus provides no support for
Plaintiffs' argument. See Town of Baraboo v. Vill. of West
Baraboo, 2005 WI App 96, ¶¶31-37, 283 Wis. 2d 479, 699
N.W.2d 610. Plaintiffs' reliance on Kaiser v. City of Mauston
is similarly misplaced because that case addressed the validity
of an ordinance under a statute, which is not the issue here.
99 Wis. 2d 345, 354-55, 299 N.W.2d 259 (1980).
48
No. 2015AP1858
certiorari is the applicable standard of review because it is a
mechanism by which a court may test the validity of a decision
rendered by a municipality; is appropriate where, as here, no
statutory appeal process has been created; is the proper
standard to review local legislative functions; and is
consistent with the longstanding policy that "declaratory relief
is disfavored if there is a 'speedy, effective and adequate'
alternative remedy." We conclude that certiorari review is
appropriate and adequate to address Plaintiffs' claims regarding
the municipality's findings of blight and "but for" assertions
because certiorari review is the mechanism by which a court
should test the validity of a municipality's legislative
determinations.
¶70 "It is well established in this state that where there
are no statutory provisions for judicial review, the action of a
board or commission may be reviewed by way of certiorari."
State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185
N.W.2d 306 (1971). No statutory appeal process has been created
to review the formation of a TID; therefore, certiorari review
of the decisions of both the City Common Council and the JRB is
appropriate. See Wis. Stat. § 66.1105; Olson, 252 Wis. 2d 628,
¶32 (Roggensack J., dissenting); see also Ottman v. Town of
Primrose, 2011 WI 18, ¶34, 332 Wis. 2d 3, 796 N.W.2d 411
("Certiorari is a mechanism by which a court may test the
validity of a decision rendered by a municipality.").
49
No. 2015AP1858
¶71 Where, as here, there is no express statutory method
of review, common law certiorari applies. Ottman, 332
Wis. 2d 3, ¶35.
When conducting common law certiorari review, a court
reviews the record compiled by the municipality and
does not take any additional evidence on the merits of
the decision. The courts review is limited to: (1)
whether the municipality kept within its jurisdiction;
(2) whether it proceeded on a correct theory of law;
(3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will and not its
judgment; and (4) whether the evidence was such that
it might reasonably make the order or determination in
question. . .
Id. (citation omitted). Additionally, "on certiorari review,
there is a presumption of correctness and validity to a
municipality's decision." Id., ¶48. This standard is
commensurate with our established deference to legislative
determinations.32 Therefore, certiorari review of the decisions
of both the City Common Council and the JRB is also an adequate
remedy.
¶72 The record before us, however, does not contain a
"record compiled by the municipality" because the litigation
32
See, e.g., Town of Baraboo, 283 Wis. 2d 479, ¶18 (quoting
Town of Campbell v. City of La Crosse, 2003 WI App 247, ¶19, 268
Wis. 2d 253, 673 N.W.2d 696) ("The doctrine known as the 'rule
of reason' is applied by the courts to ascertain whether the
power delegated to the cities and villages has been abused in a
given case."); see also Fond du Lac, 22 Wis. 2d 533 (applying
the rule of reason to annexation); Joint Sch. Dist. No. 1, 56
Wis. 2d at 797 ("The trial court properly confined its review to
whether the State Appeal Board had jurisdiction and whether the
order evinced arbitrary or capricious action.").
50
No. 2015AP1858
below did not proceed to that point. See supra notes 5-7. We
therefore remand the cause to the circuit court for certiorari
review of the decisions of the City Common Council and the JRB.
IV. CONCLUSION
¶73 On review, we consider two issues. First, we consider
whether dismissal of Plaintiffs' declaratory judgment claims was
proper. We conclude that it was, because Plaintiffs have failed
to state claims upon which relief can be granted: the first and
second counts fail because the City Common Council's findings of
blight and the JRB's "but for" assertions are legislative
determinations that do not present justiciable issues of fact or
law; the third count fails because it does not allege facts
which plausibly establish that the City's cash grant for TID 10
was used to reimburse the developer's costs associated with
demolishing historic buildings; and the fourth count fails
because it does not allege facts which plausibly establish that
cash grants are intended or used to pay owner-developers'
property taxes.
¶74 Second, we consider whether certiorari review is
appropriate. We conclude that it is, because certiorari review
is the appropriate mechanism for a court to test the validity of
a legislative determination. The record before us, however,
does not contain a municipal record sufficient to enable our
review. Accordingly, we remand to the circuit court for
certiorari review of Plaintiffs first and second claims.
51
No. 2015AP1858
¶75 Thus, we affirm the decision of the court of appeals
on the other grounds.
¶76 By the Court.—The decision of the court of appeals is
affirmed and the cause is remanded for further proceedings
consistent with this opinion.
52
No. 2015AP1858.rgb&dk
¶77 REBECCA GRASSL BRADLEY, J. and DANIEL KELLY,
J. (dissenting). The court held that Plaintiffs' richly-
detailed and amply supported 25-page Complaint does not
sufficiently state a claim. It also said Plaintiffs may not
request declaratory relief on their claims that the City of Eau
Claire (the "City") lacked authority to expand TID #8 or create
TID #10. And ignoring the obvious fungibility of money, it said
Plaintiffs' assertion that developers who were reimbursed out of
TID funds for demolishing historic buildings did not plausibly
allege that TID funds were used to pay for demolishing historic
buildings.
¶78 The court's decision forecloses taxpayers from ever
seeking declaratory judgment when municipalities violate the TIF
statutes. Our court (and the court of appeals) sidestepped the
complex substantive issues, incorrectly applied the law, and
deprived Plaintiffs of their rights. We write separately to
explain why: (1) Plaintiffs have standing to pursue their
Complaint; (2) declaratory judgment is an appropriate avenue for
seeking relief; and (3) the Complaint sufficiently alleges facts
to support each claim, although not every claim is legally
supportable. We specifically address why the factual existence
of "blight" is justiciable, why Plaintiffs' cash grant claim
should have survived a motion to dismiss, and why TIDs in
general, and these cash grants specifically, do not implicate
the Uniformity Clause of the Wisconsin Constitution. We
respectfully dissent.
1
No. 2015AP1858.rgb&dk
I. BACKGROUND1
¶79 The City expanded TID #8 and created TID #10 in
conjunction with a development known as the Confluence Project.
Our statutes authorize municipalities to create TIDs as a
mechanism to fund any of four types of projects: blight
elimination (Wis. Stat. § 66.1105); urban rehabilitation or
conservation (Wis. Stat. § 66.1337(2m)); industrial development
(Wis. Stat. § 66.1101); or promotion of mixed use development
(Wis. Stat. § 66.1105(2)(cm)). The City claimed it amended
TID #8 and created TID #10 to combat blight. The controlling
statute defines "blighted area" as either: (1) a slum area or
an area that endangers life or property and is detrimental to
health, safety, morals, or welfare; or (2) a predominantly open
area that consists primarily of an abandoned highway corridor or
demolished structures that substantially impair community
growth. See Wis. Stat. § 66.1105(2)(ae)1.
¶80 The Confluence Project engendered considerable debate,
which focused primarily on whether, as a factual matter, the
TIDs actually comprised blighted areas. At public hearings
addressing the TIDs, those opposed to the project presented
evidence that the areas were not blighted, that the areas
contained historic buildings, and that redevelopment of some of
1
This section primarily recounts facts and reasonable
inferences from Plaintiffs' Complaint. In reviewing a motion to
dismiss, we accept as true the alleged facts and all reasonable
inferences therefrom. See Data Key Partners v. Permira Advisers
LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693. We draw
all legal conclusions independently. See Walberg v. St. Francis
Home, Inc., 2005 WI 64, ¶6, 281 Wis. 2d 99, 697 N.W.2d 36.
2
No. 2015AP1858.rgb&dk
the buildings was already underway and would occur without the
TIDs and without the Confluence Project.
¶81 On September 9, 2014, the Eau Claire City Council (the
"City Council") approved the amendment to TID #8 and adopted a
resolution to that effect. Nothing in the minutes from that
meeting indicates the City Council had any evidence that the
area was actually blighted. The City Council's resolution did
not contain any specific facts documenting or explaining why the
Council found "not less than 50%, by area, of the real property
within the district is . . . a blighted area." On September 26,
2014, the Joint Review Board (the "Board")2 approved the City
Council's resolution expanding TID #8.
¶82 At the public hearing on TID #10, residents opposed to
its creation presented evidence that the City's own records
prove the area was not blighted. Nonetheless, the City Council
adopted a resolution approving TID #10 on October 14, 2014.
Although the resolution said that "not less than 50%, by area,"
was a blighted area in "need of rehabilitation or conservation,"
Plaintiffs say there is no evidence to support this finding. On
October 22, 2014, the Board adopted the City Council's
resolution, claiming the development would not occur without the
creation of TID #10.
¶83 Plaintiffs filed a Notice of Claim and Injury with the
City claiming the actions related to the TIDs were unlawful,
2
Wisconsin Stat. § 66.1105(4m) describes the role and
responsibility of the Joint Review Board. The majority opinion
sets forth the full text of § 66.1105(4m) in ¶41.
3
No. 2015AP1858.rgb&dk
violated the TIF statutes, and injured the taxpayers by
obligating them to pay higher taxes. The Notice advised that
disallowance of the claim would cause the taxpayers to file a
declaratory judgment action. The City did not respond.
Instead, the City Council adopted a resolution appropriating
$9,976,100 to the project plans for TID #8 and $5,945,800 for
TID #10. It also adopted a resolution authorizing issuance of
bonds to be funded by the incremental revenue from TID #8 and
TID #10.
¶84 Subsequently, Plaintiffs filed a Complaint seeking
declaratory judgment on four claims: (1) the City did not
comply with the TIF statutes in expanding TID #8; (2) the City
did not comply with the TIF statutes in creating TID #10; (3)
the City unlawfully used TID funds to pay for demolition of
historic buildings; and (4) the cash grants violated the
Uniformity Clause. The Complaint alleged an alternative fifth
claim "for certiorari review of the actions taken by the City
Council and the Joint Review Board."
¶85 The City denied Plaintiffs' allegations and moved to
dismiss the Complaint. As material here, the City claimed: (1)
Plaintiffs did not have standing to bring a declaratory judgment
or a certiorari action; (2) the TID resolutions are non-
justiciable legislative enactments; (3) the Complaint fails to
state a claim and any claim based on demolition of the historic
buildings is moot; and (4) this court already declared the TIF
statutes constitutional in Sigma Tau Gamma Fraternity House
Corp. v. City of Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85
4
No. 2015AP1858.rgb&dk
(1980). The circuit court granted the City's motion, holding
Plaintiffs did not have standing, declaratory judgment was
inappropriate because the case presented a political question,
and the TIF statutes are constitutional.
¶86 The court of appeals affirmed in part and reversed in
part. It agreed with the circuit court that Plaintiffs did not
have standing to seek a declaratory judgment and that
declaratory judgment is an inappropriate avenue to challenge a
City's factual findings. See Voters with Facts v. City of Eau
Claire, 2017 WI App 35, ¶¶2-3, 376 Wis. 2d 479, 899 N.W.2d 706.
It held Plaintiffs did not sufficiently allege a violation of
the TIF statutes, their claim regarding illegal payment for
demolition of historic buildings was speculative, and they did
not sufficiently allege a constitutional violation. Id. It
decided, however, that Plaintiffs had the right to certiorari
review of Plaintiffs' first and second claims, and remanded to
the circuit court. Id., ¶60. We granted Plaintiffs' petition
for review.
II. ANALYSIS
A. Standing
¶87 The court "assumes" standing, but does not address it.
In this case, the circuit court decided Plaintiffs did not have
standing at all, and the court of appeals decided that
Plaintiffs did not have standing to seek declaratory judgment.
Plainly, the question of "standing" in the context of
declaratory judgment claims needs some attention. We should
provide guidance on this issue so it does not readily recur. We
5
No. 2015AP1858.rgb&dk
write to explain why Plaintiffs had standing to assert their
claims.
1. Standard of Review and Applicable Law
¶88 Whether a plaintiff has standing to bring suit is a
question of law we review de novo. See Krier v. Vilione, 2009
WI 45, ¶14, 317 Wis. 2d 288, 766 N.W.2d 517. Taxpayers have
standing when the complaint alleges the taxpayer has or will
sustain some pecuniary loss as a result of an illegal
expenditure of public funds. S.D. Realty Co. v. Sewerage
Comm'n., 15 Wis. 2d 15, 21-22, 112 N.W.2d 177 (1961). "A
taxpayer [has] a financial interest in public funds. . . . "
Id. at 22. Standing exists even when the pecuniary loss alleged
is "infinitesimal." Id. The merits of the claim have no
bearing on whether standing exists. Kaiser v. City of Mauston,
99 Wis. 2d 345, 360-61, 299 N.W.2d 259 (Ct. App. 1980),
overruled on other grounds by DNR v. City of Waukesha, 184
Wis. 2d 178, 191, 515 N.W.2d 888 (1994) (notice of claim
statute) (subsequent case limiting DNR's notice of claim holding
omitted); Hart v. Ament, 176 Wis. 2d 694, 699, 500 N.W.2d 312
(1993).
2. Application
¶89 We conclude Plaintiffs have standing to pursue a claim
that the City of Eau Claire did not follow the requisite
procedures outlined in the TIF statutes when the City decided to
create TID #10 and expand TID #8. Plaintiffs' claim, if true,
necessarily means the taxpayers will suffer pecuniary harm
because the City will expend funds without any legal basis.
6
No. 2015AP1858.rgb&dk
Plaintiffs' Complaint alleges that: (1) they are taxpayers (two
of Plaintiffs actually own property within a TID district and
assert it is not blighted); (2) the City "failed to satisfy the
statutory requirements" and did not make required statutory
findings before proceeding with the TIDs; (3) the areas within
the TIDs are in fact not blighted areas; and (4) Plaintiffs were
harmed as a result of the City's "unlawful actions as their tax
dollars will be spent in an unlawful manner, tax revenues from
the incremental growth in TID #8 will be unavailable for general
purposes such as schools, roads, and public safety, and the
incremental tax revenues from TID #8 will be unavailable for
other taxing jurisdictions." The Complaint makes the same
assertions about TID #10.
¶90 These allegations easily confer taxpayer standing.
"An allegation that the city has spent, or proposes to spend,
public funds illegally is . . . sufficient to confer standing on
a taxpayer." Kaiser, 99 Wis. 2d at 360. When we inquire into
standing, we do not evaluate a plaintiff's likelihood of success
on the merits. That comes later. When the court of appeals
decided that the City's expenditure of tax funds was legal, it
improperly explored the merits of Plaintiffs' claims. See
Voters with Facts, 376 Wis. 2d 479, ¶¶18-59. The circuit court
also erred in its standing analysis by passing on the question,
believing it to be political rather than legal. This is error
both procedurally and conceptually because it requires a defense
of the merits before an opportunity to develop factual support.
7
No. 2015AP1858.rgb&dk
¶91 A taxpayer's complaint alleging past or future
pecuniary loss based upon an unlawful expenditure of tax
revenues has long been deemed sufficient to establish standing.
Over one hundred years ago, this court recognized that "[e]very
taxpayer, great or small, has an interest in the disposition of
county funds. Courts will not stop to balance differences or
enter into computations to ascertain just how much the taxpayer
will be likely to suffer . . . ." Mueller v. Eau Claire Cty.,
108 Wis. 304, 311, 84 N.W. 430 (1900). Rather, when a taxpayer
shows "'an active or threatened invasion or destruction of a
distinct right belonging to himself or to the body of citizens
for whom he sues . . . the taxpayer's right to sue is
recognized.'" Id. at 312 (citation omitted). See also Hart,
176 Wis. 2d at 698-99 (taxpayer challenge to transfer of a
county museum to a private organization); State ex rel. Wis.
Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988)
(taxpayer challenge to "Frankenstein" veto); City of Appleton v.
Town of Menasha, 142 Wis. 2d 870, 419 N.W.2d 249 (1988)
(taxpayer challenge to statutory scheme for apportionment after
annexation of a town); Tooley v. O'Connell, 77 Wis. 2d 422, 439,
253 N.W.2d 335 (1977) (taxpayer challenge to statutory plan for
financing city schools from property taxes); Buse v. Smith, 74
Wis. 2d 550, 563, 247 N.W.2d 141 (1976) (taxpayer challenge to
negative-aid school financing); State ex rel Sundby v. Adamany,
71 Wis. 2d 118, 124, 237 N.W.2d 910 (1976) (taxpayer challenge
to constitutionality of veto); Thompson v. Kenosha Cty., 64
Wis. 2d 673, 679-81, 221 N.W.2d 845 (1974) (taxpayer challenge
8
No. 2015AP1858.rgb&dk
to statutory creation of countywide assessor system); Vill. of
W. Milwaukee v. Area Bd. of Vocational, Tech. and Adult Ed., 51
Wis. 2d 356, 365-66, 187 N.W.2d 387 (1971) (taxpayer challenge
to statute allowing for area vocational education districts);
Columbia Cty. v. Bd. of Trs. of Wis. Ret. Fund, 17 Wis. 2d 310,
116 N.W.2d 142 (1962) (taxpayer challenge to statute mandating
all counties join the welfare fund); Fed. Paving Corp. v.
Prudisch, 235 Wis. 527, 293 N.W. 156 (1940) (taxpayer challenge
to statute allowing certain cities to pay funds under contracts
later found void).
¶92 Despite longstanding and clear-cut law to the
contrary, the circuit court and the court of appeals ruled
Plaintiffs lack standing. Instead of correcting the error, this
court dodged it, which means it will just come back to us again.
The law of standing requires nothing more than Plaintiffs' claim
that they are harmed by the unlawful expenditure of their tax
dollars.
B. Dismissal of Counts One and Two
¶93 The first two counts of the Complaint challenge the
City's authority to amend TID #8 and create TID #10. They seek
a declaration that the City may not exercise TID authority
unless (as relevant here) the proposed districts encompass the
statutorily-prescribed minimum concentration of blighted
properties. This court dismissed these counts for failure to
9
No. 2015AP1858.rgb&dk
state a claim because, it said, blight is a non-justiciable
legislative determination.3
¶94 This conclusion is not possible without indulging two
foundational errors. First, the court never faced, and so did
not answer, the central question Plaintiffs raised: Whether the
statutorily-mandated preconditions to the City's exercise of TID
authority were satisfied. And second, the court made a category
error when, for purposes of justiciability, it assumed the
existence of blight is the same thing as a municipality's
response to it.
1. Controlling Legal Principles
¶95 Declaratory judgments, such as the one Plaintiffs
requested, are broadly available under our Uniform Declaratory
Judgment Act, which says: "Courts of record within their
respective jurisdictions shall have power to declare rights,
status, and other legal relations whether or not further relief
is or could be claimed. No action or proceeding shall be open
to objection on the ground that a declaratory judgment or decree
is prayed for." Wis. Stat. § 806.04(1). Such declarations are
available so long as there is a justiciable controversy.
Milwaukee Dist. Council 48 v. Milwaukee Cty., 2001 WI 65, ¶37,
3
Majority op., ¶4 ("First, we consider whether dismissal of
Plaintiffs' declaratory judgment claims was proper. We conclude
that it was, because Plaintiffs have failed to state claims upon
which relief can be granted: the first and second counts fail
because the City Common Council's findings of blight . . . are
legislative determinations that do not present justiciable
issues of fact or law . . . .").
10
No. 2015AP1858.rgb&dk
244 Wis. 2d 333, 627 N.W.2d 866 ("A declaratory judgment is
fitting when a controversy is justiciable.").
¶96 We have previously said that an issue is justiciable,
for purposes of declaratory judgment actions, when there is:
(1) A controversy in which a claim of right is
asserted against one who has an interest in contesting
it.
(2) The controversy must be between persons whose
interests are adverse.
(3) The party seeking declaratory relief must have a
legal interest in the controversy——that is to say, a
legally protectible interest.
(4) The issue involved in the controversy must be ripe
for judicial determination.
Loy v. Bunderson, 107 Wis. 2d 400, 409, 320 N.W.2d 175
(1982) (internal quotation marks and citation omitted).
Justiciability, however, does not depend on the ultimate merits
of the claim. Tooley v. O'Connell, 77 Wis. 2d 422, 434–35, 253
N.W.2d 335 (1977) ("The merits of plaintiffs' cause of action do
not determine its justiciability.").
¶97 As the court recognized, the substantive law informing
Plaintiffs' claims controls what they must plead. See majority
op., ¶27 ("[T]he sufficiency of a complaint depends on [the]
substantive law that underlies the claim made because it is the
substantive law that drives what facts must be pled." (quoting
Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶31, 356
Wis. 2d 665, 849 N.W.2d 693)). It also supplies the raw
material for the justiciability analysis.
¶98 The contest with respect to Counts One and Two is
over the City's authority to expand TID #8 and create TID #10.
11
No. 2015AP1858.rgb&dk
The Tax Increment Law (Wis. Stat. § 66.1105) is the source of
that authority: "In addition to any other powers conferred by
law, a city may exercise any powers necessary and convenient to
carry out the purposes of this section, including the power to:
(a) Create tax incremental districts and define the boundaries
of the districts . . . ." § 66.1105(3). But this is not an
absolute grant of power. That is to say, the legislature did
not authorize municipalities to create TIDs whenever and
wherever they wish. To the contrary, a municipality may not
create a TID unless all of the statutorily-defined prerequisites
are satisfied. The legislature introduced the operative portion
of the Tax Increment Law with this command: "In order to
implement the provisions of this section, the following steps
and plans are required . . . ." § 66.1105(4).
¶99 One of the requirements a municipality must satisfy
before it may create a TID is adoption of a resolution finding
that:
[n]ot less than 50 percent, by area, of the real
property within the district is at least one of the
following: a blighted area; in need of rehabilitation
or conservation work, as defined in s. 66.1337 (2m)
(a); suitable for industrial sites within the meaning
of s. 66.1101 and has been zoned for industrial use;
or suitable for mixed-use development . . . .
Wis. Stat. § 66.1105(4). An area is blighted if it meets any of
the following descriptions:
a. An area, including a slum area, in which the
structures, buildings or improvements, which by reason
of dilapidation, deterioration, age or obsolescence,
inadequate provision for ventilation, light, air,
sanitation, or open spaces, high density of population
and overcrowding, or the existence of conditions which
12
No. 2015AP1858.rgb&dk
endanger life or property by fire and other causes, or
any combination of these factors is conducive to ill
health, transmission of disease, infant mortality,
juvenile delinquency, or crime, and is detrimental to
the public health, safety, morals or welfare.
b. An area which is predominantly open and which
consists primarily of an abandoned highway corridor,
as defined in s. 66.1333 (2m) (a), or that consists of
land upon which buildings or structures have been
demolished and which because of obsolete platting,
diversity of ownership, deterioration of structures or
of site improvements, or otherwise, substantially
impairs or arrests the sound growth of the community.
Wis. Stat. § 66.1105(2)(ae)1.
¶100 That is the substantive law against which we compare
Counts One and Two. Plaintiffs make three relevant allegations.
In the first, they say the City acted solely on the basis that
the property within the TIDs was blighted. In the second and
third, they say that although the City claimed the property
within TID #8 and TID #10 (respectively) was blighted, the
record before the City contained no evidence this was true.
When we consider the sufficiency of a complaint, "we accept as
true all facts well-pleaded in the complaint and the reasonable
inferences therefrom." Data Key Partners, 356 Wis. 2d 665, ¶19.
¶101 Therefore, the proper analysis accepts the truth of
the following two propositions as the starting point: (1) The
City exercised TID authority based on its assertion that
property within the districts is blighted; and (2) there is no
evidence the City's assertion is true. Counts One and Two
unmistakably challenge whether the preconditions to the City's
exercise of TID authority have been satisfied. Although the
court did not say so explicitly, it appears to have concluded
13
No. 2015AP1858.rgb&dk
these claims are not justiciable because they do not satisfy the
third prong of the Loy formula: "The party seeking declaratory
relief must have a legal interest in the controversy——that is to
say, a legally protectible interest." Loy, 107 Wis. 2d at 409-
10 (internal quotation marks and citation omitted). In other
words, the court concluded that the people of Wisconsin have no
legally protectible interest in ensuring municipalities exercise
TID authority only when the legislature says they may. And that
brings us to the first of the court's two foundational errors.
2. The Court Assumed Away the Question
¶102 The court completely missed that Plaintiffs' challenge
goes to whether the preconditions to the City's exercise of TID
authority have been satisfied with respect to the areas defined
by TIDs #8 and #10. Steve Martin, the comic genius, once
described how to be a millionaire and never pay taxes. First,
he said, get a million dollars. The court has done something
similar in assessing the City's authority with respect to TIDS
#8 and #10. First, it said, assume the authority to create
them. The court spent most of its analysis describing the
procedure by which a municipality documents that assumption.
But Plaintiffs' actionable concern is not that the City failed
to do its paperwork properly. Their Complaint alleges that the
City lacked the authority to create (or expand) the TIDs because
the statutorily-mandated factual predicate to the exercise of
that authority does not exist.
¶103 The court's analysis started with the unvoiced
assumption that the City had the authority to do what it did,
14
No. 2015AP1858.rgb&dk
and in so doing, it assumed away Plaintiffs' actual challenge.
Here is how the court began: "To determine whether the
allegations are sufficient to state a claim upon which relief
may be granted, we must interpret the statute; specifically, we
must determine what the statute means when it requires that the
local legislative body adopt a 'resolution
which . . . [c]ontains findings.'" Majority op., ¶30. Why on
earth would we do that? No one doubts the City's resolution
contains findings. What they doubt is whether they reflect
reality. Nonetheless, the court lamented that "finding" is a
statutorily-undefined term (as if we do not know what a
"finding" is) before settling on a dictionary definition.4 Then,
without explanation, we leapt from Black's definition to the
conclusion that the City need not provide evidence for its
findings.5 Let's stipulate that this non sequitur could be saved
by some hitherto unknown logic——why would it matter? The manner
in which a municipality must document its findings says nothing
at all about whether the findings must be, not to put too fine
of a point on it, true.
4
Majority op., ¶33 ("A determination by a judge, jury, or
administrative agency of a fact supported by the evidence in the
record." (quoting Finding of fact, Black's Law Dictionary 749
(10th ed. 29 2014)). That's a fine definition of a finding of
fact, although the court's long history with findings of fact
probably makes a dictionary definition unnecessary.
5
Majority op., ¶33 ("Given this ordinary meaning of
'findings', the plain language of the statute does not require
that the local legislative body——here, the City Common Council——
itemize the evidence in the record that supports its finding of
blight.").
15
No. 2015AP1858.rgb&dk
¶104 The legislature granted municipalities the authority
to create TIDs. But it placed a gate with a combination lock in
front of that grant of authority. The gate will not swing open
unless the statutorily-prescribed combination of conditions is
fulfilled. In this case, the City is trying to access TID-
creating authority using the blight combination. Plaintiffs say
the City did not get it right, and so the gate did not open.
The court's response to Plaintiffs' claim was to consider the
nature of the record the City must make as it jumps the gate.
That is not what the court was supposed to do. It was supposed
to consider whether the people of Wisconsin may seek a
declaration that the City may not jump the gate. That, however,
was only the first of the court's foundational errors.
3. The Court's Category Error
¶105 The balance of the court's opinion on Counts One and
Two comprised its mistaken conclusion that the existence of
blight is a non-justiciable question of legislative policy.
This is a profoundly disturbing category error, inasmuch as it
caused the court to conclude that facts are contingent on
municipal policies——a conclusion that obtains nowhere but in
Orwellian dystopias. So the court did not recognize that (1) a
municipality's policy, and (2) the facts on the ground to which
the policy responds, do not fall into the same category. The
first is generally not justiciable; the second is.
¶106 The court created this error when it observed that our
statutes define "blight," in part, with reference to some of the
maladies that municipalities have the authority to address:
16
No. 2015AP1858.rgb&dk
The key language in each of these [blight-
related] statutes is that the "area," in its current
state, "is detrimental to the public health, safety,
morals, or welfare." "Public safety, public health,
[and] morality . . . are some of the more conspicuous
examples of the traditional application of the police
power to municipal affairs," Berman v. Parker, 348
U.S. 26, 32 (1954), and a "municipality's exercise of
its police power has traditionally been accorded
deference by reviewing courts." Nowell v. City of
Wausau, 2013 WI 88, ¶46, 351 Wis. 2d 1, 838
N.W.2d 852.
Majority op., ¶37. Because it saw similar phrases in the
description of a municipality's authority and the situations a
municipality may address, the court apparently thought they must
be in the same category for purposes of the justiciability
analysis. They are not.
¶107 The court's category error is the consequence of not
recognizing the difference between subjects and objects. The
subject is the municipality's authority; the object is the
situation to which the municipality may apply that authority.
Yes, municipalities have authority to address matters of public
health, safety, morals, and welfare. And yes, certain
properties and areas are blighted (something that affects public
health, safety, morals, and welfare). This inexorably leads to
the unremarkable conclusion that municipalities have certain
authority (the subject) to remedy properties or areas that are
blighted (the object). A logically-ordered universe, however,
does not allow the conclusion that this means subjects and
objects are the same thing. Just because municipalities have
authority to address blight does not mean they have the
authority to define what blight is. The legislature has already
taken care of that task. It told municipalities, in great
17
No. 2015AP1858.rgb&dk
detail, what "blighted area" means in the context of the Tax
Increment Law. See Wis. Stat. § 66.1105(2)(ae)1.6 This
conflation of subjects and objects guaranteed the court's
justiciability analysis would produce the wrong answer.
¶108 Because of that conflation, the court mistakenly
concluded that a challenge to the City's description of reality
is as non-justiciable as its policy decisions responding to that
reality. Specifically, the court said that "findings of blight
are legislative determinations that 'do[ ] not raise justiciable
issues of fact or law.'" Majority op., ¶36 (quoting Joint Sch.
Dist. No. 1 v. State Appeal Bd., 56 Wis. 2d 790, 794, 203
N.W.2d 1 (1973)). No, findings of blight are most assuredly not
legislative determinations. And the court cited not a single
6
It really could not be otherwise. If the authority to
address blight encompassed the authority to define blight, there
would be no end to a municipality's authority. An enterprising
municipality could create authority ex nihilo through the simple
expedient of calling any condition it wished to address
"blighted."
18
No. 2015AP1858.rgb&dk
authority to explain how this could possibly be so.7 What to do
about blight (if anything) is a legislative determination. But
the existence of blight (as defined by the legislature) cannot
be a legislative determination unless, alone amongst all
governmental entities and sentient beings, municipalities have
the power to conform the world to their dictates. The first
category involves the exercise of legislative judgment and
discretion. The second category involves the legislators'
accurate apprehension of the world around them. The court's
consistent failure to distinguish between these two categories
resulted in its implied holding that municipalities are entitled
to their own facts.
¶109 Without that category error, none of the authorities
the court cited would support its position. Not one. Each of
the cases on which it relied addresses matters in the first
category——that is, the exercise of a legislative body's judgment
7
The immediately preceding quote from the court's opinion
looks like it might contradict our statement, but it does not.
Majority op., ¶36 (quoting Joint Sch. Dist. No. 1 v. State
Appeal Bd., 56 Wis. 2d 790, 794, 203 N.W.2d 1 (1973)). The
Joint Sch. Dist. No. 1 case had nothing to do with blight
findings. In fact, the Joint Sch. Dist. No. 1 court concluded
that the dispute had nothing to do with findings at all. It
instead concerned "the wisdom and advisability of the proposed
reorganization" of a school district. Id. at 795. The sentence
fragment the court cherrypicked says, in full, this: "As a
consequence of these holdings, we have concluded that the merits
of a school district reorganization is a legislative
determination of public policy questions which does not raise
justiciable issues of fact or law." Id. at 794. "Public policy
questions" are quintessential non-justiciable issues. The
existence of a fact, at least outside Orwell's 1984, is never
contingent on a public policy.
19
No. 2015AP1858.rgb&dk
and discretion. For example, Joint Sch. Dist. No. 1 did not say
that all legislative determinations are non-justiciable. It
said "legislative determinations[s] of public policy questions"
are not justiciable. Joint Sch. Dist. No. 1, 56 Wis. 2d 790 at
794 (emphasis added). That, of course, is indubitably true.
The issue in Joint Sch. Dist. No. 1 was the "wisdom and
advisability of the proposed reorganization" of a school
district. Id. at 795. The contest was not over objective
reality, such as whether the school district did or did not
exist. It was over the form the district ought to take, the
resolution of which necessarily rests on the legislative body's
prudential exercise of discretion. That is what made the
legislative determination non-justiciable.
¶110 Similarly, Buhler v. Racine Cty., 33 Wis. 2d 137, 146
N.W.2d 403 (1966), addressed questions of discretion and
judgment, not the reality of the world to which that discretion
and judgment would be applied. The question there was the
propriety of certain zoning classifications. The court
concluded that zoning decisions are largely non-justiciable
because they are based on the "wisdom" and "desirability" of the
varying classifications when applied to the properties in
question. Id.at 146-47. If the court's decision today is
correct, then not only the wisdom of the zoning would be non-
justiciable, but also the very nature of the property to which
the zoning applied. Do we really need to say that the nature of
the property does not care about what the municipality thinks of
20
No. 2015AP1858.rgb&dk
it? It is what it is, notwithstanding any number of municipal
"findings" to the contrary.
¶111 The court says, in a footnote, that Berman v. Parker,
348 U.S. 26 (1954), supports its proposition that the existence
of blight is a non-justiciable legislative determination. See
majority op., ¶39, n.20. But it does not explain how. Nor
could it, because Berman recognizes the distinction between
subjects and objects we have laid out in this dissent: "Once
the object is within the authority of Congress, the right to
realize it through the exercise of eminent domain is clear. For
the power of eminent domain is merely the means to the end."
Berman, 348 U.S. at 33. As here, the "object" in Berman was
blighted property. But as Berman recognized, before the
government could act, the object had to have been "within the
authority of Congress [the subject]." The authority at issue
there was eminent domain, a power granted to the District of
Columbia without preconditions. Here, the authority in question
is the creation of a TID, an authority that does not exist
unless and until certain legislatively-prescribed preconditions
have been fulfilled. Berman's lesson is that, once the
legislative body has authority (the subject) to operate on the
object (blight), the manner in which it exercises that authority
is a legislative determination committed to the legislative
body's sound discretion and prudence. Consequently, Berman can
have nothing to say here unless we confound subjects and
objects.
21
No. 2015AP1858.rgb&dk
¶112 For essentially the same reasons, David Jeffrey Co. v.
City of Milwaukee, 267 Wis. 559, 578, 66 N.W.2d 362 (1954), does
not support the court's assertion that the existence of blight
is a legislative determination. The issue in David Jeffrey Co.
was not whether a municipality has unreviewable power to declare
something blighted that is not; it was whether the expressed
purpose for eliminating blight in the City of Milwaukee could be
considered a "public use" of private property (as required by
Article I, sec. 13 of our State Constitution). After converting
"public use" into "public purpose," the David Jeffrey Co. court
said "[t]he determination of what constitutes a public municipal
purpose is primarily a function of the legislative body, subject
to a review by the courts, and such determination by the
legislative body will not be overruled by the courts except in
instances where that determination is manifestly arbitrary or
unreasonable." Id. at 579. This is so because the purpose for
applying the municipality's authority (the subject) to the
blighted areas (the object) is a matter of judgment, discretion,
and prudence. The David Jeffrey Co. court said nothing to
suggest that the existence of blight (the object) is a
legislative determination.
¶113 The last case on which the court relies for its
proposition, Nowell v. City of Wausau, 2013 WI 88, ¶46, 351
Wis. 2d 1, 838 N.W.2d 852, provides no more support than any of
the others. There, a bar owner asked the court to review the
City of Wausau's decision to not renew its liquor license. The
Nowell court observed that the decision to grant or deny a
22
No. 2015AP1858.rgb&dk
liquor license is committed to the municipality's unconstrained
discretion. Unsurprisingly, that court correctly concluded the
municipality's authority was legislative in nature, and subject
to only certiorari review. But Nowell can provide no
instruction here because Plaintiffs are not asking whether the
City exercised its TID authority in a prudent manner; they are
asking whether the preconditions to unlimbering that authority
have been satisfied. Nowell does not——and cannot——tell us that
the existence of blight is a non-justiciable legislative
determination. And the court has identified no case capable of
suggesting it is.
*
¶114 The proper justiciability analysis would recognize
that facts are not contingent on a municipality's prudential
exercise of its discretion. Instead, if the world is to make
any sense at all, the exact opposite must be true: The
municipality's policies must be contingent on the facts. And
that means that facts are justiciable, while policies are
generally not. There is no mystery to this. Justiciability, as
the court noted, implicates the separation of powers. Baker v.
Carr, 369 U.S. 186, 217 (1962) ("It is apparent that several
formulations which vary slightly according to the settings in
which the questions arise may describe a political question,
although each has one or more elements which identify it as
essentially a function of the separation of powers."); Majority
op., ¶39 ("This is because de novo review of a legislative
determination violates the doctrine of separation of powers.").
23
No. 2015AP1858.rgb&dk
We respect the separation of powers, in part, by not second-
guessing a legislative body's policy choices. Those choices are
generally not justiciable because they comprise the prudential
exercise of judgment and discretion, variables that by their
nature are not susceptible to judicial inquiry. But
legislatures have no monopoly on reality, and so there is no
conceivable violation of the separation of powers when we look
at facts for ourselves. That is to say, while municipalities
are entitled to their choice of policies, they are not entitled
to their own facts.8
8
Contrast this with, for example, Plaintiffs' assertion
that they may have a declaration that the City did not fulfill
the condition that the Confluence Project would not occur but
for the creation and expansion of the TIDs. The statute says
"[t]he board may not approve the resolution under this
subdivision unless the board's approval contains a positive
assertion that, in its judgment, the development described in
the documents the board has reviewed under subd. 1. would not
occur without the creation of a tax incremental district." Wis.
Stat. § 66.1105(4m)(b)2. (emphasis added). Access to TID
authority does not depend on whether the project, in fact, would
not occur but for the TID. With respect to this precondition,
authority depends on the municipality's judgment that it would
not occur but for the TID. We traditionally review a
municipality's exercise of judgment under common-law certiorari
standards. See, e.g., Ottman v. Town of Primrose, 2011 WI 18,
¶¶34-35, 332 Wis. 2d 3, 796 N.W.2d 411 ("Certiorari is a
mechanism by which a court may test the validity of a decision
rendered by a municipality . . . ."). We apply the common law
certiorari standard where there is no express statutory method
of review, and our review is limited to the record compiled by
the municipality. Moreover, we may only consider:
(1) whether the municipality kept within its
jurisdiction; (2) whether it proceeded on a correct
theory of law; (3) whether its action was arbitrary,
oppressive, or unreasonable and represented its will
and not its judgment; and (4) whether the evidence was
(continued)
24
No. 2015AP1858.rgb&dk
¶115 The United States Supreme Court's Baker opinion
provides significant guidance in describing the category of non-
justiciable questions:
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially
discoverable and manageable standards for resolving
it; or the impossibility of deciding without an
initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a
court's undertaking independent resolution without
expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
Baker, 369 U.S. at 217.
¶116 Nothing in this formulation is capable of making
Plaintiffs' challenge non-justiciable. The entire formula rests
on an a priori understanding that facts——the stuff of reality——
precede and are therefore outside the category of non-
justiciable questions. Thus, for example, reality (here,
whether certain property satisfies the statutory definition of
blight) has not been (nor could it be) committed to a coordinate
branch of government (unless it is entitled to its own facts).
And the statute's definition of blight is so specific there is
no lack of discoverable and manageable standards for recognizing
where it might exist. Nor must the judiciary make any policy
such that it might reasonably make the order or
determination in question.
Id.
25
No. 2015AP1858.rgb&dk
determinations as a predicate to identifying blighted
properties. And allowing Plaintiffs to assert that there is no
blight where the City says there is expresses no disrespect for
the City, just disagreement. And so on through all of the Baker
factors. Because the existence of a set of facts cannot be
contingent on a legislative body's exercise of its discretion or
judgment, the court committed an outcome-determinative error in
concluding that both subjects and objects fall in the same
category for purposes of the justiciability analysis.
¶117 In a terse footnote, the court suggests the key to its
opinion is the distinction between legislative and adjudicative
facts. Majority op., ¶39 n.20. It also says that we do not
understand the distinction, and that this failure accounts for
our dissent. Id. Although we get the difference, we do not
understand——and the court does not explain——why that means it
must conflate subjects and objects. There is no magic to
legislative facts——they simply describe the world as perceived
by legislative bodies. Municipalities cannot speak (or write) a
single fact into existence (or make one disappear). The facts
either are, or they are not. And that matters because the
legislature conditioned the City's TID authority on whether the
TIDs——as a factual matter——encompass the required amount of
blight. If it did not matter——that is, if the City can create
legislative facts ex nihilo, the truth of which are beyond
questioning——then the legislature can never condition a
municipality's exercise of authority on a factual predicate. If
the court is right, then the predicate can never be anything but
26
No. 2015AP1858.rgb&dk
a functional nullity because the municipality will always be
able to create compliance by speaking the "legislative" facts
into existence. That, of course, is not a condition. It is
surplusage. We are supposed to avoid that. See, e.g.,
Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980)
("A statute should be construed so that no word or clause shall
be rendered surplusage and every word if possible should be
given effect.").
*
¶118 The factual predicates to the exercise of a
municipality's TID authority are not legislative determinations.
They are simply facts, the existence of which is as susceptible
to determination in the context of the Tax Increment Law as in
any other setting. The court erred, profoundly, when it
concluded that Counts One and Two are non-justiciable. Our
jurisprudential world will be on tilt until we abandon this
reality-warping category error.
C. Dismissal of Counts Three and Four
¶119 The court concludes that Count Three insufficiently
states a claim because it does not allege facts plausible enough
to show TID funds were used to demolish historic buildings. And
it concludes that Count Four suffers the same infirmity because
Plaintiffs do not allege facts that plausibly show the grants
were really paying the developer's property taxes. We disagree.
1. Standard of Review and Applicable Law
¶120 Our review of the sufficiency of a complaint is a
question of law reviewed de novo. See Kaloti Enterprises, Inc.
27
No. 2015AP1858.rgb&dk
v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis. 2d 555, 699
N.W.2d 205. Wisconsin Stat. § 802.02(1)(a) provides the
necessary requirements for a valid complaint:
(1) Contents of pleadings. A pleading or supplemental
pleading that sets forth a claim for relief, whether
an original or amended claim, counterclaim, cross
claim or 3rd-party claim, shall contain all of the
following:
(a) A short and plain statement of the claim,
identifying the transaction or occurrence or series of
transactions or occurrences out of which the claim
arises and showing that the pleader is entitled to
relief.
(b) A demand for judgment for the relief the
pleader seeks.
¶121 Wisconsin adopted "notice pleading" "so that legal
disputes are resolved on the merits of the case" rather than
dismissed based on a technicality. See Hlavinka v. Blunt, Ellis
& Loewi, Inc., 174 Wis. 2d 381, 403, 497 N.W.2d 756 (Ct. App.
1993) (quoting Korkow v. Gen. Cas. Co. of Wis., 117 Wis. 2d 187,
193, 344 N.W.2d 108 (1984)). "The 'notice' pleading rules of
the current civil procedure code are intended to facilitate the
orderly adjudication of disputes; pleading is not to become a
'game of skill in which one misstep by counsel may be decisive
of the outcome.'" Korkow, 117 Wis. 2d at 193 (quoted source
omitted).
¶122 When a court is asked to determine whether a complaint
states a claim, we accept the facts pled in the complaint as
true, as well as "all reasonable inferences that can be drawn
from those facts." Hlavinka, 174 Wis. 2d at 403. To be valid,
the complaint must give notice sufficient enough "that the
28
No. 2015AP1858.rgb&dk
defendant, and the court, can obtain a fair idea of what the
plaintiff is complaining, and can see that there is some basis
for recovery." Id. (quoted sources and internal quotation marks
omitted). The complaint should be liberally construed in favor
of stating a claim and only dismissed when it is clear that
there are no conditions under which Plaintiffs could prevail.
See Hermann v. Town of Delavan, 215 Wis. 2d 370, 378, 572
N.W.2d 855 (1998).
2. Application
¶123 Plaintiffs' third claim seeks a declaration voiding
the City Council's TID resolution because TID funds were
unlawfully used to pay for demolition costs of historic
buildings in violation of Wis. Stat. § 66.1105(2)(f)1.a.9 The
court agrees that the plain language of Wis. Stat.
§ 66.1105(2)(f)1.a prohibits using TID money to pay for the
demolition of a historic building. See majority op., ¶53.
Nonetheless, the court concludes that Count Three failed to
9
Wisconsin Stat. § 66.1105(2)(f)1.a provides:
"Project costs" include:
a. Capital costs including, but not limited to, the
actual costs of the construction of public works or
improvements, new buildings, structures, and fixtures;
the demolition, alteration, remodeling, repair or
reconstruction of existing buildings, structures and
fixtures other than the demolition of listed
properties as defined in s. 44.31 (4); the acquisition
of equipment to service the district; the removal or
containment of, or the restoration of soil or
groundwater affected by, environmental pollution; and
the clearing and grading of land.
29
No. 2015AP1858.rgb&dk
state a claim for declaratory relief because it did not use the
right words. According to the court, (1) the Complaint "did not
allege facts which establish that the developer in fact used the
money from the cash grant to pay for the demolition of" the
historic buildings; and (2) the Complaint did not "allege facts
which demonstrate that the developer was likely to do so"; and
(3) the Plaintiffs allege only that "'there is . . . no way to
assure' that the developer did not use the cash grants to pay
for the demolition of historic buildings." Id., ¶55.
¶124 The court is mistaken because it did not account for
what everyone knows: Money is fungible. The Complaint alleges
that historic buildings on the National Register of Historic
Places within the TID district were purchased and demolished by
the developer——specifically identifying at least one of those
buildings by name, the Kline Department Store, and another by
address, "the historic property at 2 South Barstow Street." It
alleges the demolition occurred "after the project plans were
developed and, upon information and belief, with the
understanding that [the developer] would be reimbursed for the
costs of development." It further alleges: "A substantial part
of the development costs actually incurred by the developer thus
includes the costs of demolition as well as the purchase price
of the Kline Department Store building and other buildings"
protected by statute as historic places. Paragraph 46 of the
Complaint alleges the City will pay the developer $10,400,000 in
the form of cash grants for project costs, without prohibiting
the developer from using that money to purchase or demolish the
30
No. 2015AP1858.rgb&dk
historic properties. Paragraph 94 alleges "two lump-sum
'contributions' of $2.95 million to the developer" which "may be
used by the developer for any project related purpose, including
reimbursing the developer for its already-incurred costs. These
costs include acquisition and demolition" without prohibiting
the developer from using this money "for the costs of
demolishing" historic properties. Finally, the Complaint
states: "Lump sum reimbursement for already incurred costs can
properly be viewed as including any of those costs, including
the costs of demolishing historic structures within the
Confluence Commercial Historic District."
¶125 Taking these alleged facts as true, as we must,
together with any reasonable inference derived therefrom, see
Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356
Wis. 2d 665, 849 N.W.2d 693, Plaintiffs' claim survives a motion
to dismiss. The statute prohibits using TID funds to demolish
historic places. The Complaint alleges the developer bought and
demolished historic places pursuant to a development agreement
under which the City pays millions of dollars in cash grants to
the developer for any project-related purpose. In essence, the
Complaint asserts the City is unlawfully transferring taxpayer
money to the developer in part to cover the developer's costs
for demolishing historic buildings; if proven, this would
constitute an illegal expenditure of public funds. The
Complaint need not track the currency's serial numbers from the
TID funds to the wrecking company's bank account.
31
No. 2015AP1858.rgb&dk
¶126 The court heightens pleading requirements beyond what
the law supports. It dismisses this claim even though the
Complaint conveys fair notice of Plaintiffs' grievance and even
though the Complaint's factual allegations and reasonably drawn
inferences, if true, provide a basis for recovery. If
Plaintiffs' claim proceeded, discovery would either prove or
disprove Plaintiffs' allegation that the developer used TIF
funds to cover demolition costs. If discovery shows Plaintiffs'
allegations were correct, Plaintiffs would be entitled to a
declaration that the City violated the statute. The court's
perplexing dismissal of this claim achieves what notice pleading
is supposed to prevent——dismissal on a technicality. The court
selectively ignores pivotal words in the Complaint and spurns
what is left as insufficient. It suggests that had Plaintiffs
simply chosen a few different words, this claim would have
survived dismissal. The court's analysis is unsound. The
Complaint is sufficient to withstand a motion to dismiss and
this claim should have been allowed to proceed to a decision on
the merits rather than dismissed at the pleading stage on a
specious technicality.
¶127 Plaintiffs' Fourth Count alleges that the cash grants,
through which the City pays the developer millions of dollars,
violate the Uniformity Clause of the Wisconsin Constitution
because the cash grants effectively lower the developer-owners'
property taxes. The court's opinion again concludes Plaintiffs'
Complaint is factually insufficient. We disagree.
32
No. 2015AP1858.rgb&dk
¶128 Plaintiffs' Complaint alleges: (1) the cash grants
reimburse the developer-owner "for all or a part of the taxes
paid on its property"; (2) "the project plans provide for
millions of dollars of incremental TID taxes to be paid directly
to the owner of the property"; (3) these payments "function[] as
a tax rebate or tax credit"; (4) as a result, the developer-
owner is "being taxed at a more favorable rate than an owner of
identically-assessed property elsewhere in Eau Claire"; and (5)
this arrangement violates the Uniformity Clause.
¶129 As noted, in reviewing a sufficiency of the complaint
challenge, we accept all of its asserted facts and reasonably
drawn inferences as true. We analyze any legal assertions
independently. Plaintiffs' Complaint gives fair notice that
Plaintiffs seek a declaration regarding the constitutionality of
the cash grant part of the TIF statute. The Complaint alleges
that the cash grants operate as a tax rebate that in effect
lowers the developer's taxes, making the tax rate paid by the
developer more favorable than the rate paid by other taxpayers.
The facts alleged are sufficient to withstand a motion to
dismiss. The court errs by concluding otherwise, which
prevented the court from taking the next step of reviewing the
legal basis for the claim. If the facts alleged are true, and
if the legal premises are correct, Plaintiffs could receive the
relief they seek: a declaration that the cash grants violate
the Uniformity Clause. Accordingly, the court errs in
prematurely disposing of this claim on the narrow basis that the
Complaint insufficiently pleads adequate facts to support a
33
No. 2015AP1858.rgb&dk
Uniformity Clause claim. Although the claim suffers no fact-
related pleading inadequacy, it nonetheless fails to state a
claim for the reasons we explain below.
D. Constitutionality of TIF Cash Grants
¶130 The court's rejection of Plaintiffs' constitutional
challenge to the cash grants based on purportedly insufficient
factual allegations in the Complaint is particularly puzzling
because resolving the issue of whether the cash grants violate
the Uniformity Clause does not depend on factual findings or
require discovery.10 Rather, whether tax policy implicates the
Uniformity Clause presents a legal question, which is ripe for
resolution by this court. A statute's constitutionality
presents an issue of law, which we review de novo. State v.
Pittman, 174 Wis. 2d 255, 276, 496 N.W.2d 74 (1993).
¶131 Plaintiffs make an "as-applied" challenge.11 Although
statutes are generally presumed constitutional, when the
challenge is not to the statute itself, but to its application,
no presumption exists. Soc'y Ins. v. LIRC, 2010 WI 68, ¶27, 326
Wis. 2d 444, 786 N.W.2d 385 ("While we presume a statute is
constitutional, we do not presume that the State applies
10
We address only Plaintiffs' constitutional challenge
under the Uniformity Clause. We cannot decide its
constitutional challenge based on the public purpose doctrine
because that analysis depends upon the blight findings.
11
We acknowledge the parties' dispute as to whether the
challenge is a facial or an as-applied challenge. Like the
majority, we analyze it as an as-applied challenge.
34
No. 2015AP1858.rgb&dk
statutes in a constitutional manner.")12 Plaintiffs argue that
cash grants to a non-tax exempt developer who also owns the
property violate the Uniformity Clause. They contend such
grants operate as a tax rebate, which effectively lowers the
property taxes the developer pays to the City. Accordingly,
Plaintiffs do not challenge all cash grants under the TIF law,
but only those made to property owners who are subject to
taxation.
¶132 The Uniformity Clause of the Wisconsin Constitution
guarantees "[t]he rule of taxation shall be uniform." Wis.
Const. art. VIII, § 1. Generally speaking, the uniformity
clause applies to property taxes, which are "direct taxes on
real estate." Columbia Cty. v. Wis. Retirement Fund, 17 Wis. 2d
310, 325, 116 N.W.2d 142 (1962). A Uniformity Clause analysis
primarily focuses on "inequality in the assessing or collecting
of a tax." State ex rel. Van Dyke v. Cary, 181 Wis. 564, 572,
191 N.W. 546 (1923). When taxes are collected or assessed
unequally, the Uniformity Clause is implicated. In Gottlieb v.
Milwaukee, 33 Wis. 2d 408, 425-32, 147 N.W.2d 633 (1967), this
court held a tax law that "partially exempt[s] particular tax
property" violated the Uniformity Clause. The tax law in
Gottlieb gave decades-long tax exemptions to developers who
12
A facial challenge to a statute alleges that the statute
is unconstitutional on its face——that it is unconstitutional in
every circumstance. State v. Smith, 2010 WI 16, ¶10 n.9, 323
Wis. 2d 377, 780 N.W.2d 90. In contrast, an as-applied
challenge asserts that a statute is unconstitutional as it
relates to the facts of a particular case or a particular party.
Id.
35
No. 2015AP1858.rgb&dk
agreed to construct or improve substandard properties in
exchange for partial freezing of tax assessments. Id. Such an
arrangement lowered the tax rate for the developers and resulted
in other taxpayers paying a higher and disproportionate share of
property taxes, in clear violation of uniformity. Id. at 429.
¶133 The statute Plaintiffs challenge here does not involve
a tax freeze or a tax exemption. The developer-owner in the
matter before us is assessed uniformly with other taxpayers and
fully pays property taxes on that assessment. Plaintiffs'
constitutional challenge targets municipal disbursement of tax
revenues after collection rather than the collection itself.
Disbursement of funds generally survives challenges under the
Uniformity Clause. In an early dispute over a surtax imposed to
fund a teachers' retirement fund, this court identified "a
substantial distinction between an inequality in the assessing
or collecting of a tax and inequality in the disbursing of its
proceeds among those who contributed," concluding that "while
the former may invalidate the tax, the latter does not . . . ."
State ex rel. Van Dyke, 181 Wis. at 572. "TIF departs from
uniformity only with respect to spending," which is significant
because state courts hold that "state constitutional uniformity
requirements appl[y] only to tax assessment and tax rates, not
spending." Richard Briffault, The Most Popular Tool: Tax
Incremental Financing and the Political Economy of Local
Government, 77 U. Chi. L. Rev. 65, 75 & n.54 (2003) (citing
state court opinions from Indiana, Illinois, Colorado,
36
No. 2015AP1858.rgb&dk
Tennessee, Utah, and Iowa upholding TIF under their respective
uniformity clauses).
¶134 The constitutional requirement of uniform taxation
does extend, in some circumstances, to the manner of fund
disbursement. See State ex rel. La Follette v. Torphy, 85
Wis. 2d 94, 107, 108, 270 N.W.2d 187 (1978). While uniformity
does not extend to disbursement of tax revenues when paid to
counties and municipalities for use on government and public
improvements, id. at 107, when a tax statute authorizes payment
to an individual taxpayer, the Uniformity Clause applies if the
effect of the statute imposes an unequal tax burden. Id. at
108-110. "The uniformity clause is intended to protect the
citizen against unequal and unjust taxation." Id. at 198. In
Torphy, this court held the tax law giving tax credits to
residential property owners who elected to make "building and
garage improvements which result in increased property tax
assessments" had the effect of imposing an unequal tax burden on
homeowners with the same assessed valuations and therefore
violated the Uniformity Clause. Id. at 98, 111.
¶135 Plaintiffs here allege that the TIF cash grants
violate the Uniformity Clause because, like the tax credits in
Torphy, they have the effect of lowering the developer's tax
rate, rendering the rate unequal among taxpayers. The
dispositive question then is whether the cash grants act as a
tax rebate, credit, or exemption that has the effect of imposing
an unequal tax burden upon other Eau Claire taxpayers. We
37
No. 2015AP1858.rgb&dk
conclude that the TIF cash grants do not have that effect and
therefore do not violate the Uniformity Clause.
¶136 This court has already rejected a facial and as-
applied constitutional challenge to the TIF statute in Sigma
Tau, 93 Wis. 2d at 412. Sigma Tau determined:
With respect to the question of uniformity of taxation
among individual taxpayers, the Tax Increment Law is
clearly distinguishable, both in form and effect, from
the tax provisions struck down by the court in
Gottlieb and in Torphy. In both of those cases the
court based its conclusion that the provisions were
unconstitutional upon its finding that taxpayers
owning equally valuable property were required to pay
disproportionate amounts of taxes.
Under tax increment financing, however, there is no
such disproportionate impact upon taxpayers within the
same territorial boundaries of the unit imposing the
tax. All taxpayers . . . continue to be taxed at a
uniform rate based upon valuations uniformly arrived
at. No taxpayer or group of taxpayers is being
singled out for preferential treatment either in the
form of an exemption from taxation or a tax credit.
Thus, we conclude, taxation under tax incremental
financing is uniform.
Id. at 412.
¶137 Plaintiffs contend the cash grant provision of the TIF
statute did not exist at the time Sigma Tau declared the TIF law
constitutional. The City disputes this, arguing cash grants
have always been a part of the TIF framework. The State, in an
amicus brief, agrees: "'Cash grants' to private developers have
always been part of the definition of 'eligible project costs'
under Wisconsin's TIF law." It is not necessary to resolve this
dispute in reaching our conclusion that the TIF cash grants do
not violate the Uniformity Clause.
38
No. 2015AP1858.rgb&dk
¶138 The purpose of the TIF law is "to provide a mechanism
for cities to finance projects commenced" under redevelopment
statutes or to combat blighted areas. Id. at 403. Wisconsin
Stat. § 66.1105(2)(f)2.d allows the City to give cash grants to
developers if they "signed a development agreement with the
city."13 The cash grants are not a tax rebate, credit, or
exemption. They are payments pursuant to an agreement to engage
in redevelopment projects. The cash grants are not linked to
future property tax payments, do not give the developer a
property tax break, and do not operate as a tax refund. The
grants do not have the effect of creating an unequal tax burden
on similarly situated taxpayers. They do not lower the
developer's tax burden or require other taxpayers to pay more
than their fair share. Both the developer and other taxpayers
are taxed at the same rate based on the equalized value of their
property. Thus, the cash grants do not apportion the tax burden
unevenly. The City effectively pays developers to undertake a
project it would otherwise plan, manage, and pay for itself, if
it had the ability to do so. The City pays for development
services using revenues the project itself will generate. See
Monroe WaterWorks Co. v. City of Monroe, 110 Wis. 11, 12-13, 85
N.W. 685 (1901) (concluding City's contract agreeing to pay for
13
Wisconsin Stat. § 1105(2)(f)2.d provides as
material: " . . . none of the following may be included as
project costs for any tax incremental district . . . [c]ash
grants made by the city to owners, lessees, or developers of
land that is located within the tax incremental district unless
the grant recipient has signed a development agreement with the
city . . . ."
39
No. 2015AP1858.rgb&dk
water services is not unlawful grant of immunity from taxes when
"the sum so stipulated to be paid is a fair and just allowance
to compensate for the actual value of the services to be
rendered, and that the stipulation is bona fide, and not in the
nature of an evasion of the law against exemption from taxes.").
The developer uses the grants to defray the costs of economic
development, not to lower or offset property tax payments.
¶139 The TIF cash grants do not alter the uniformity of tax
payments among taxpayers or impose an unequal tax burden. They
do not impose on other taxpayers a disproportionate amount of
taxes like the tax laws found unconstitutional in Gottlieb and
Torphy. Accordingly, we conclude the TIF cash grants do not
violate the Uniformity Clause.
III. CONCLUSION
¶140 Plaintiffs have standing in this matter and the law
permits them to seek both declaratory judgment and certiorari
review. Plaintiffs' Complaint alleges sufficient facts to
withstand a motion to dismiss on each of its claims. The TIF
cash grants do not have the effect of imposing an unequal tax
burden; therefore, the TIF statute, as applied to developer-
owners receiving TIF grants, comports with the Uniformity Clause
of the Wisconsin Constitution, requiring dismissal of Count 4.
¶141 The court says Plaintiffs' claims must be dismissed
because "a court cannot issue a declaration regarding the wisdom
of a legislative determination." Majority op., ¶40. But it
says so only because it believes facts are contingent on
municipal policy choices, a paradigm that is untenable,
40
No. 2015AP1858.rgb&dk
unworkable, and unintelligible. Consequently, the court
abdicated the judicial duty to decide whether a municipal body
properly applied the law. Because the court jettisons
Plaintiffs' cause of action without basis, we respectfully
dissent.
41
No. 2015AP1858.rgb&dk
1