Lowe's Home Centers, LLC v. City of Delavan ( 2023 )

2023 WI 8SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1987
COMPLETE TITLE: Lowe's Home Centers, LLC,
Plaintiff-Appellant-Petitioner,
v.
City of Delavan,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 400 Wis. 2d 542, 970 N.W.2d 568(2022 – unpublished)
OPINION FILED: February 16, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 28, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: Daniel Steven Johnson
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, C.J., ROGGENSACK, DALLET, HAGEDORN, and
KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a
concurring opinion, in which ROGGENSACK, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Thomas R. Wilhelmy, Daniel P. Deveny and Fredrikson &
Byron, P.A., Minneapolis. There was an oral argument by Daniel
P. Deveny.
For the defendant-respondent, there was a brief filed by
Lori M. Lubinksy, Danielle Baudhuin Tierney, and Axley
Brynelson, LLP, Madison. There was an oral argument by Danielle
Baudhuin Tierney.
An amicus curiae brief was filed by Jason P. Gehring,
Dustin T. Woehl, and Kasdorf, Lewis & Swietlick, S.C.,
Milwaukee, on behalf of the Village of Plover, Wisconsin.
An amicus curiae brief was filed by Misha Tseytlin, Kevin
M. LeRoy, and Troutman, Pepper, Hamilton, Sanders LLP, Chicago,
on behalf of the Chamber of Commerce of the United States of
America.
An amicus curiae brief was filed by Scott E. Rosenow and
the WMC Litigation Center, Madison, on behalf of Wisconsin
Manufacturers and Commerce, Inc.
An amicus curiae brief was filed by Amy R. Seibel, Claire
Silverman, and Seibel Law Offices, LLC, Mequon, and the League
of Wisconsin Municipalities, Monona, on behalf of the League of
Wisconsin Municipalities. There was an oral argument by Amy R.
Seibel.
2
2023 WI 8NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1987
(L.C. No. 2016CV589 & 2017CV432)
STATE OF WISCONSIN : IN SUPREME COURT
Lowe's Home Centers, LLC,
Plaintiff-Appellant-Petitioner,
FILED
v.
FEB 16, 2023
City of Delavan,
Sheila T. Reiff
Defendant-Respondent. Clerk of Supreme Court
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, C.J., ROGGENSACK, DALLET, HAGEDORN, and
KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a
concurring opinion, in which ROGGENSACK, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, Lowe's Home
Centers, LLC, seeks review of an unpublished per curiam decision
of the court of appeals affirming the circuit court's
determination that the City of Delavan's assessments of Lowe's'
No. 2019AP1987
property for the 2016 and 2017 tax years were not excessive.1
Lowe's contends that the City's assessments should not have
received a presumption of correctness and that the assessments
improperly excluded comparable properties for the sole reason
that those properties were unoccupied.
¶2 Specifically, Lowe's contends that the City's
assessments should not have received a presumption of
correctness because, it argues, they were conducted in violation
of the dictates of the Wisconsin Property Assessment Manual (the
Manual). Further, it asserts that the vacant big-box retail
locations it presented to the circuit court are comparable to
the subject property and thus should have been considered in the
City's assessments.
¶3 The City argues to the contrary, contending that the
presumption of correctness was appropriately afforded to its
assessments. It additionally asserts that the unoccupied
properties Lowe's presented as comparable properties were
properly excluded from the analysis.
¶4 We determine that the assessments in this case were
properly afforded a presumption of correctness. Pursuant to
Wis. Stat. § 70.49(2) (2019-20),2 the presumption attaches upon
1 Lowe's Home Centers, LLC v. City of Delavan, No.
2019AP1987, unpublished slip op. (Wis. Ct. App. July 28, 2021)
(per curiam) (affirming the order of the circuit court for
Walworth County, Daniel Steven Johnson, Judge).
2 All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2
No. 2019AP1987
the filing of the assessment along with the assessor's
affidavit.
¶5 We further determine that Lowe's failed to demonstrate
that the City's assessments were excessive. Giving deference to
the circuit court's factual findings, including its credibility
determinations, we conclude that Lowe's did not provide
significant contrary evidence sufficient to overcome the
presumption of correctness.
¶6 Accordingly, we affirm the decision of the court of
appeals.
I
¶7 Lowe's is the owner of property in the City of
Delavan. The property consists of 14.525 acres on which sits a
134,574-square-foot Lowe's Home Improvement store. Construction
on the building was completed in 2005, and Lowe's has occupied
the building since that time.
¶8 In 2013, the City assessor conducted a revaluation of
the property, and arrived at an assessed value of $8,922,300.
No changes were made to this value for purposes of the 2016 and
2017 assessments.
¶9 Lowe's challenged the City's assessments for 2016 and
2017. It sought a waiver of its hearing before the City's Board
of Review and the Board granted the waiver, thereby disallowing
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No. 2019AP1987
the claim.3 After its claim was disallowed, Lowe's filed this
action under Wis. Stat. § 74.37(3)(d),4 asserting that the
assessments of its property for the 2016 and 2017 tax years were
excessive and seeking to recover the excess amount it believed
it had paid.
¶10 The circuit court held a three-day bench trial on the
matter. At trial, City Assessor Luke Mack testified, as did the
City's expert appraiser Scott Chapko. Lowe's offered testimony
from two experts, Michael MaRous and Brett Harrington.5
¶11 Mack testified regarding the method he employed for
valuing the property for 2016 and 2017. He described those
assessments as "maintenance" assessments, which means that the
property was not subject to a full revaluation.6 Mack further
3 See Wis. Stat. § 70.47(8m) ("The board may, at the request
of the taxpayer or assessor, or at its own discretion, waive the
hearing of an objection . . . . For purposes of this
subsection, if the board waives the hearing, the waiver
disallows the taxpayer's claim on excessive assessment under s.
74.37(3) and, notwithstanding the time period under s.
74.37(3)(d), the taxpayer has 60 days from the notice of the
hearing waiver in which to commence an action under s.
74.37(3)(d).").
4 Pursuant to Wis. Stat. § 74.37(3)(d), "[i]f the taxation
district or county disallows the claim, the claimant may
commence an action in circuit court to recover the amount of the
claim not allowed."
5 The circuit court's decision did not focus on Harrington's
testimony. Accordingly, although we briefly describe the
testimony of the other witnesses, we do not recount that of
Harrington.
6 See Wis. Stat. § 70.05(5)(b) ("Each taxation district
shall assess property at full value at least once in every 5-
year period.").
4
No. 2019AP1987
testified that the prior assessment of the property, completed
in 2013, was done using the cost approach,7 that replacement
costs were based on "Marshall and Swift cost data,"8 and that
market adjustments were applied for depreciation and additional
obsolescence. He also compared the assessments to recent
revaluations in other communities.
¶12 Lowe's' expert, MaRous, testified that the property
should have been valued at a much lower level than the City had
offered. In MaRous's opinion, the subject property had a fair
market value of $4.6 million——just over half of the City's
assessed value.
¶13 To arrive at this valuation, MaRous used the sales
comparison approach. In doing so, he compared the Lowe's
property to six other recently-sold properties that he had
determined to be "comparable" to the Lowe's property.
¶14 Three of the six comparable sites MaRous identified
(what MaRous termed sales one, three, and six) were former
American TV locations. Two of these sites were sold to
Steinhafel's furniture and one was sold and converted into a go-
7 The "cost approach" to valuation "seeks to measure the
cost to replace the property." Adams Outdoor Advert., Ltd. v.
City of Madison, 2006 WI 104, ¶35, 294 Wis. 2d 441, 717
N.W.2d 803.
8 Marshall and Swift "publishes materials used by appraisers
and state and local taxing authorities." Marshall & Swift v. BS
& A Software, 871 F. Supp. 952, 954 (W.D. Mich. 1994). The
Marshall and Swift handbook has been described as a
"standardized publication in the field of real estate." In Re
Thompson, 18 B.R. 67, 69 (Bankr. E.D. Tenn. 1982).
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No. 2019AP1987
kart racing track, bar, and restaurant. All three were in
receivership9 when they were sold.
¶15 MaRous's comparable sale number two was a former K-
Mart store that, by MaRous's testimony, had been vacant and
marketed for "2 to 3 years" prior to being sold. Comparable
sale number four was a former Lowe's store in Brown Deer. The
property had been built in 2006 and vacated by Lowe's just five
years later. It sat vacant for two years before being purchased
by Walmart in 2013. MaRous further advanced that the "exposure
time," or the length of time it takes a property to sell on the
open market, for properties similar to the subject property in
the same geographical area is two to three years.
¶16 Finally, MaRous offered comparable sale number five, a
vacant former Target store. This property was "vacant before
the purchase for about four years." It was ultimately purchased
by a developer who "broke it up into two [lots] . . . because
that's where the demand was."
¶17 The City countered Lowe's' expert with its own expert,
Scott Chapko. Chapko valued the property at $9.2 million,
slightly higher than the assessed value. Like MaRous, he
arrived at this valuation using the sales comparison approach,
although Chapko used different properties as comparables than
MaRous used.
¶18 Chapko testified that he did not think it was
appropriate to use "dark" stores or "distressed" properties to
9 See Wis. Stat. ch. 128.
6
No. 2019AP1987
compare to the occupied Lowe's property.10 Accordingly, Chapko
did not use any such properties in his analysis. All of
Chapko's submitted comparable sales were occupied at the time of
sale and had market-rate leases in place. None was sold under
"duress," such as a bankruptcy or foreclosure. Chapko
additionally testified that the exposure time for a property
like the subject property is in the "overall range of 2 to 18
months."
¶19 The circuit court ultimately upheld the City's
assessments. Specifically, it determined that "the evidence
presented by Lowe's in this case is significantly less credible
than that presented by the City when it comes to a proper value
to be attached to this real estate for the years 2016 and 2017."
In discussing MaRous's appraisal, the circuit court discounted
The Manual discourages the use of "dark" and "distressed"
10
properties "as comparable sales unless the subject property is
similarly dark or distressed." 1 Wisconsin Property Assessment
Manual 9-12 (2016). Pursuant to the Manual, "[a] vacant store
is considered dark when it is vacant beyond the normal time
period for that commercial real estate marketplace and can vary
from one municipality to another." Id. As such, "vacant" and
"dark" are not synonyms. For further discussion on the
distinction between "vacant" and "dark," see infra, ¶¶45-46.
The Manual does not specifically define "distressed," but it
counsels that "[a] recent court case stated distressed
properties are not seen as meaningfully comparable to operating
properties." 1 Wisconsin Property Assessment Manual 9-12
(citing Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI
App 131, ¶¶21, 22, 34, 35, 351 Wis. 2d 439, 839 N.W.2d 893).
All references to the Wisconsin Property Assessment Manual
are to the 2016 version unless otherwise indicated.
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No. 2019AP1987
MaRous's claimed comparables two and five in that they "were
both vacant beyond the 2-3 year window that Mr. MaRous
apparently identifies as the normal exposure time for the
Delavan area," classifying those properties as "dark" for this
reason. It further explained:
In that these two properties are dark they have a
major deficiency when compared with the Lowe's store
in question. Further, the fact that they were
considered comparable sales at all is in apparent
direct conflict with the [principles] outlined in the
Manual stating not to use dark properties in
performing an appraisal unless the subject property is
also dark.
¶20 The circuit court also found unpersuasive MaRous's
reliance on what it considered "distressed" properties. It
observed:
[H]alf of the comparable sales used by Mr. MaRous were
in receivership. The Court might be able to overlook
one comparable sale in receivership or under possible
duress as an outlier if it was able to put that
outlier in the context of five other properties
without significant flaws, not in receivership, with
similar adjusted values. However, the Court cannot do
so here because of the number of properties in
receivership and the flaws of the other non-
receivership comparable sales.
¶21 Due to the "significant deficiencies" in MaRous's
appraisal, the circuit court concluded that Lowe's had not
provided significant contrary evidence that the City's valuation
was excessive. Accordingly, it denied Lowe's' request for a
refund of excessive taxes.
¶22 Lowe's appealed and the court of appeals affirmed the
circuit court's decision. Lowe's Home Centers, LLC v. City of
8
No. 2019AP1987
Delavan, No. 2019AP1987, unpublished slip op. (Wis. Ct. App.
July 28, 2021) (per curiam). Emphasizing that the circuit court
"is the ultimate arbiter of credibility," the court of appeals
concluded that "Lowe's has not overcome the presumption of
correctness that attached to the City's assessments and that the
record supports the circuit court's determinations in this
case." Id., ¶¶43, 48. Lowe's petitioned for this court's
review.
II
¶23 We are called upon to review the court of appeals'
determination on an excessive assessment claim brought pursuant
to Wis. Stat. § 74.37(3)(d). An action filed pursuant to
§ 74.37 seeks a trial before the circuit court, and is distinct
from a certiorari action.11 Metro. Assocs. v. City of Milwaukee,
2018 WI 4, ¶23, 379 Wis. 2d 141, 905 N.W.2d 784. Accordingly,
Certiorari is a mechanism by which a court may test the
11
validity of a decision rendered by a municipality,
administrative agency, or other quasi-judicial tribunal. State
ex rel. Anderson v. Town of Newbold, 2021 WI 6, ¶11, 395
Wis. 2d 351, 954 N.W.2d 323. Such a proceeding is "limited to
the record before the board and addresses only whether the
board's actions were: (1) within its jurisdiction; (2)
according to law; (3) arbitrary, oppressive, or unreasonable and
represented its will and not its judgment; and (4) supported by
evidence such that the board might reasonably make the order or
determination in question." State ex rel. City of Waukesha v.
City of Waukesha Bd. of Rev., 2021 WI 89, ¶19, 399 Wis. 2d 696,
967 N.W.2d 460. In contrast, an excessive assessment action
under Wis. Stat. § 74.37 is not confined to the record before
the board and new evidence may be presented. Trailwood
Ventures, LLC v. Village of Kronenwetter, 2009 WI App 18, ¶7,
315 Wis. 2d 791, 762 N.W.2d 841.
9
No. 2019AP1987
we review the circuit court's determination, not that of the
assessor or Board of Review. Id.¶24 In our review, we must interpret and apply Wis. Stat.
§§ 70.32 and 70.49 to determine whether the appraisals at issue
followed the statutory directives. Statutory interpretation and
application present questions of law that we review
independently of the determinations rendered by the circuit
court and court of appeals. Id., ¶24.
¶25 Factual findings made by the circuit court will not be
disturbed unless they are clearly erroneous. Id., ¶25. A
finding of fact is clearly erroneous if it is against the great
weight and clear preponderance of the evidence. Id., ¶62. It
is within the province of the factfinder to make determinations
of the weight and credibility of evidence. Id., ¶25.
III
¶26 We begin by setting forth the principles and
methodology that guide property tax assessment in Wisconsin.
Subsequently, we discuss the presumption of correctness to which
an assessment is entitled. Finally, we address the City's
assessments of Lowe's' property.
A
¶27 Valuation of real estate for tax assessment purposes
is governed by Wis. Stat. § 70.32. State ex rel. Collison v.
City of Milwaukee Bd. of Rev., 2021 WI 48, ¶23, 397 Wis. 2d 246,
960 N.W.2d 1. Pursuant to § 70.32(1), property shall be valued
"in the manner specified in the Wisconsin property assessment
manual." Subsection (1) further sets forth a hierarchical
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No. 2019AP1987
valuation methodology for arriving at a property's fair market
value.12 See State ex rel. Markarian v. City of Cudahy, 45
Wis. 2d 683, 685-86, 173 N.W.2d 627 (1970).
¶28 Wisconsin Stat. § 70.32(1) lists three sources of
information that inform tax assessments. The order in which
these sources are listed is indicative of the quality of
information each source provides. Collison, 397 Wis. 2d 246,
¶24. This methodology has been described as providing three
"tiers" of analysis. Metro. Assocs., 379 Wis. 2d 141, ¶31.
¶29 An arm's-length sale of the subject property is the
best information of a property's fair market value, and is thus
the first source of information to which an assessor should look
in conducting an assessment. Collison, 397 Wis. 2d 246, ¶25.
Examination of a recent arm's-length sale is known as a tier 1
analysis. Id. If the property has not been recently sold, then
the appraiser moves to a tier 2 analysis, examining recent
12 In full, Wis. Stat. § 70.32(1) provides:
Real property shall be valued by the assessor in the
manner specified in the Wisconsin property assessment
manual provided under s. 73.03(2a) from actual view or
from the best information that the assessor can
practicably obtain, at the full value which could
ordinarily be obtained therefor at private sale. In
determining the value, the assessor shall consider
recent arm's-length sales of the property to be
assessed if according to professionally acceptable
appraisal practices those sales conform to recent
arm's-length sales of reasonably comparable property;
recent arm's-length sales of reasonably comparable
property; and all factors that, according to
professionally acceptable appraisal practices, affect
the value of the property to be assessed.
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No. 2019AP1987
arm's-length sales of reasonably comparable properties (the
"sales comparison" approach). Id. It is this tier 2 analysis
that is before us in this case.
¶30 Finally, when both tier 1 and tier 2 are unavailable,
an assessor moves to tier 3, under which the assessor may
consider all the factors collectively that have a bearing on the
value of the property. Id., ¶26. These factors include cost,
depreciation, replacement value, income, industrial conditions,
location and occupancy, sales of like property, book value,
amount of insurance carried, value asserted in a prospectus, and
appraisals produced by the owner. Id.; State ex rel. Mitchell
Aero, Inc. v. Bd. of Rev. of City of Milwaukee, 74 Wis. 2d 268,
278, 246 N.W.2d 521 (1976).
¶31 Property owners who are dissatisfied with the assessed
value of their property may file an objection to the assessment
with the municipal board of review. Wis. Stat. § 70.47(7);
State ex rel. Nudo Holdings, LLC v. Bd. of Rev. for City of
Kenosha, 2022 WI 17, ¶9, 401 Wis. 2d 27, 972 N.W.2d 544. The
board of review is a quasi-judicial body that hears evidence and
decides whether the assessor's valuation is correct. State ex
rel. City of Waukesha v. City of Waukesha Bd. of Rev., 2021 WI
89, ¶16, 399 Wis. 2d 696, 967 N.W.2d 460. It is not an
assessing body. Id. If a property owner remains dissatisfied
after the board's decision, the property owner may appeal the
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No. 2019AP1987
board's decision through one of three statutory avenues.13 Id.,
¶17. As relevant here, Lowe's brought an excessive assessment
action under Wis. Stat. § 74.37.
B
¶32 With this background in hand, we next clarify the
operation of the presumption of correctness to which assessments
are entitled. As a starting point to the examination of a
property owner's challenge to a tax assessment pursuant to Wis.
Stat. § 74.37, the assessor's valuation is presumed to be
correct. Wis. Stat. § 70.49(2); Metro. Assocs., 379
Wis. 2d 141, ¶50. Such a presumption may be rebutted if the
assessor did not correctly apply the Manual and Wisconsin
statutes or if a challenger presents significant contrary
evidence. Metro. Assocs., 379 Wis. 2d 141, ¶50; Allright
Props., Inc. v. City of Milwaukee, 2009 WI App 46, ¶12, 317
Wis. 2d 228, 767 N.W.2d 567.
¶33 However, Lowe's contends that the assessments in this
case are not entitled to the presumption of correctness.
Pointing to this court's statement that "[n]o presumption of
correctness may be accorded to an assessment that does not apply
the principles in the Property Assessment Manual," Walgreen Co.
v. City of Madison, 2008 WI 80, ¶17, 311 Wis. 2d 158, 752
The three options for property owners who wish to appeal
13
a board decision are: (1) certiorari review pursuant to Wis.
Stat. § 70.47(13), (2) a written complaint with the Department
of Revenue to revalue the property under Wis. Stat. § 70.85, and
(3) an excessive assessment action pursuant to Wis. Stat.
§ 74.37. City of Waukesha, 399 Wis. 2d 696, ¶17.
13
No. 2019AP1987
N.W.2d 687, Lowe's asserts that because the assessments here
deviated from the Manual (an assertion which we will address
below), the presumption does not attach in the first instance.
¶34 Lowe's misapprehends the application of the
presumption. Its argument is incorrect as a matter of both
statutory law and logic.
¶35 The statutory basis for the presumption, Wis. Stat.
§ 70.49(2), provides:
The value of all real and personal property entered
into the assessment roll to which such affidavit is
attached by the assessor shall, in all actions and
proceedings involving such values, be presumptive
evidence that all such properties have been justly and
equitably assessed in proper relationship to each
other.
For our purposes, the key passage from the statute sets forth
that the assessment becomes "presumptive evidence" when it is
"entered into the assessment roll" and includes "such
affidavit . . . attached by the assessor." § 70.49(2). The
plain language of this provision thus compels only one
conclusion: that the presumption of correctness attaches at the
filing of the assessment by the assessor along with the required
affidavit. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (setting forth
that statutory interpretation begins with the language of the
statute, and if the meaning is plain, "we ordinarily stop the
inquiry").
¶36 Further, Lowe's' proffered analysis suffers from
backward logic. Rather than apply the presumption and then
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No. 2019AP1987
determine if significant contrary evidence overcomes the
presumption, Lowe's would have us endorse an analysis that would
first examine the evidence and make a determination as to
whether the assessment complied with the Manual and only then
determine whether the presumption applies.
¶37 This is not how a presumption works. If an assessment
is conducted contrary to the dictates of the Manual, this does
not merely mean that the presumption does not initially attach.
If, in the context of a Wis. Stat. § 74.37 action, the failure
to follow the Manual results in an excessive assessment, then
the presumption is overcome and the assessment must be set
aside.
¶38 We acknowledge that this court's cases have indicated
that "[n]o presumption of correctness may be accorded to an
assessment that does not apply the principles in the Property
Assessment Manual." See Walgreen Co., 311 Wis. 2d 158, ¶17;
Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104,
¶56, 294 Wis. 2d 441, 717 N.W.2d 803. However, Walgreen Co. did
not cite Wis. Stat. § 70.49(2) and thus provides no insight into
its application. Although § 70.49(2) was cited in Adams Outdoor
Advertising, it was referenced only for the premise that the
court "must give presumptive weight to the City's assessment."
Adams Outdoor Advert., 294 Wis. 2d 441, ¶25. Given the plain
language of § 70.49(2), we take the court's statements in
Walgreen Co. and Adams Outdoor Advertising to mean not that the
presumption does not initially attach to an assessment that does
not follow the Manual's directives, but that the presumption is
15
No. 2019AP1987
overcome in such a situation. Indeed, it is apparent from the
plain text of § 70.49(2) that the presumption attaches when the
assessment is filed along with the proper affidavit.
¶39 We thus conclude that the assessments in this case
were properly afforded a presumption of correctness. Pursuant
to Wis. Stat. § 70.49(2), the presumption attaches upon the
filing of the assessment along with the assessor's affidavit.
C
¶40 Having established that the presumption of correctness
attaches to the assessments, we turn next to address whether
Lowe's presented significant contrary evidence sufficient to
overcome the presumption and demonstrate that the City's
assessments were excessive.
¶41 Although Lowe's conceded at oral argument that "all
the [proposed comparable] stores were vacant at the time they
sold," it contends that the assessor deviated from the Manual by
categorically excluding "vacant" and "dark" stores from a tier 2
sales comparison analysis. It further contends that it
presented significant contrary evidence sufficient to overcome
the presumption in the form of MaRous's appraisal.
¶42 In evaluating Lowe's' arguments, we examine first the
relevant portions of the Manual. This case revolves around the
question of what constitutes a "comparable" property in the
context of a tier 2 sales comparison analysis. The sales
comparison approach is "based on the premise that similar
properties will sell for similar prices on the open market." 1
Wisconsin Property Assessment Manual 7-24.
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No. 2019AP1987
¶43 The Manual "does not leave the determination of
whether properties are reasonably comparable wholly to the
discretion of an appraiser." Regency W. Apartments LLC v. City
of Racine, 2016 WI 99, ¶61, 372 Wis. 2d 282, 888 N.W.2d 611.
Accordingly, it provides some guidance as to how assessors are
to evaluate whether property is indeed "comparable."
Specifically, the Manual states: "Comparable sales refer to
properties that are similar to the subject property in age,
condition, use, type of construction, location, design, physical
features and economic characteristics." 1 Wisconsin Property
Assessment Manual 7-24. "The more similar the sold property is
to the subject, the more reliable is the sale price as an
indicator of the value of the subject property." Id.¶44 Providing further specific guidance in the valuation
of commercial properties through the sales comparison approach,
the Manual states that "[w]hen valuing properties, the assessor
should choose comparable sales exhibiting a similar highest and
best use and similar placement in the commercial real estate
marketplace." Id. at 9-12. The Manual additionally sets forth
language that is critical to the issue presented in this case
regarding the use of "vacant" and "dark" properties in
commercial valuation:
The assessor should avoid using sales of improved
properties that are vacant ("dark") or distressed as
comparable sales unless the subject property is
similarly dark or distressed. A vacant store is
considered dark when it is vacant beyond the normal
time period for that commercial real estate
marketplace and can vary from one municipality to
17
No. 2019AP1987
another. A recent court case stated distressed
properties are not seen as meaningfully comparable to
operating properties.
Id. (citing Bonstores Realty One, LLC v. City of Wauwatosa, 2013
WI App 131, ¶¶21, 22, 34, 35, 351 Wis. 2d 439, 839 N.W.2d 893).
¶45 Before continuing in our analysis, we take a brief
detour to discuss the terminology that we employ. Some
confusion has arisen due to inconsistent usage of the terms
"vacant" and "dark." Although the court of appeals in this case
seemingly used the terms interchangeably, they have different
meanings.
¶46 We acknowledge that the Manual may not be a model of
clarity on the subject, but its language does indicate that
"vacant" and "dark" are not synonymous. The Manual states that
"[a] vacant store is considered dark when it is vacant beyond
the normal time period for that commercial real estate
marketplace and can vary from one municipality to another." Id.Thus, "dark," as used by the Manual, is a subset of "vacant."
In other words, all dark stores are vacant, but not all vacant
stores are dark.
¶47 After this brief detour, we return to the parties'
arguments. Lowe's' main argument before this court is that the
circuit court erred in rejecting MaRous's proffered "comparable"
properties for purposes of a tier 2 sales comparison analysis.
Specifically, it contends that the property's vacancy status
should not be considered, and that the property must be valued
with respect to the owner's fee simple interest only. To
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No. 2019AP1987
support this argument, Lowe's looks to Walgreen Co., 311
Wis. 2d 158.
¶48 In Walgreen Co., the business at issue, Walgreens,
operated pursuant to a business model under which it would
contract with a real estate developer to construct properties at
Walgreens' direction. Id., ¶6. In return, Walgreens leased the
properties from the developer at above-market rates to
compensate for the developer's costs. Id.
¶49 When assessing property values, the City of Madison
appraised the "leased fee interest," i.e., it considered the
actual above-market contract rents in its analysis. Id., ¶10.
In contrast, Walgreens advanced an appraisal that "appraised the
fee simple interest in the two properties without consideration
of the lease." Id. The court addressed the issue of "whether a
property tax assessment of retail property leased at above
market rent values should be based on market rents (as Walgreens
argue[d]) or if such assessments should be based on the above
market rent terms of Walgreens' actual leases (as the City
argue[d])." Id., ¶2.
¶50 This court agreed with Walgreens. It determined,
"consistent with the nationally recognized principle that '[a]
lease never increases the market value of real property rights
to the fee simple estate,'" that Wis. Stat. § 70.32(1)
"proscribes assessing real property in excess of market value."
Id., ¶3. The Walgreen Co. court also concluded that "an income
approach assessment of a leased retail property's fair market
value of the fee simple interest [must] be based on market lease
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No. 2019AP1987
rates, not actual contract rates, as long as encumbrances to the
property do not cause its leased fee value to fall below a
market rate value." Id.
¶51 Lowe's argues that consideration of the occupancy
status of a store in a valuation necessarily means that the
value of the business is being taken into account rather than
just the fee simple value of the land. It highlights the
Walgreen Co. court's statement that "the valuation of the fair
market value of property for purposes of property taxes is by
its nature different from business, or income tax assessment."
Id., ¶65. "[A]n assessor's task is to value the real estate,
not the business concern which may be using the property." Id.
(quoting Waste Mgmt. of Wis., Inc. v. Kenosha Cnty. Bd. of Rev.,
184 Wis. 2d 541, 565, 516 N.W.2d 695 (1994)). Pointing to
language in Walgreen Co. indicating that "a property assessor's
task is to identify the market value of a fee simple interest,"
id., ¶20, Lowe's argues that consideration of vacancy status
takes the assessor outside of these confines.
¶52 Walgreen Co. does not compel the outcome Lowe's seeks,
and its holding is not as broad as Lowe's claims. The court in
Walgreen Co. made a narrow determination regarding how above-
market rent is to be treated for tax assessment purposes. As
the City here argues, Walgreen Co. does not stand for the
blanket proposition that occupancy or vacancy has no role to
play in valuation.
¶53 Lowe's' argument misses the mark when it advances that
accounting for the vacant nature of a store necessarily values
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No. 2019AP1987
the business concern and not just the fee simple interest in the
land. Many factors inform the value of land, including the
land's viability to house a business. Saying that land is
suitable for a successful business, or that the land has a track
record of housing a successful business, and assigning a value
to that fact is not the same as valuing the business itself.
Generally, a site that can sustain a business is more valuable
than one that cannot.14 See also 1 Wisconsin Property Assessment
14 This conclusion is echoed by a position paper published
by the International Association of Assessing Officers (IAAO),
an organization whose standards are incorporated into the
Manual. See 1 Wisconsin Property Assessment Manual 1-3
("Whether or not the IAAO Standards appear in the [Manual], the
most current version in effect on January 1 of a given
assessment year is incorporated by reference in the manual.");
State ex rel. Collison v. City of Milwaukee Bd. of Rev., 2021 WI
48, ¶41, 397 Wis. 2d 246, 960 N.W.2d 1.
The IAAO states:
If the subject property is occupied, that fact
supports the premise that there is demand for the use
for which the property was originally designed.
Highest and best use is likely for the continued use
of the property in its current use.
. . .
For retail properties, value is affected by size, age,
condition, access, traffic counts, proximity to major
employment centers, the concentration of surrounding
properties, population size, and household purchasing
power, to name just a few considerations. The
competitive advantage of a property determines its
relative position within the market. A property that
has significant advantages over other properties of
the same use because of location, demographics, and
economic forces will command a higher price and rent.
Int'l Ass'n of Assessing Officers, Commercial Big-Box Retail: A
Guide to Market-Based Valuation at 16 (Sept. 2017).
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No. 2019AP1987
Manual 7-24 ("Comparable sales refer to properties that are
similar to the subject property in age, condition, use, type of
construction, location, design, physical features and economic
characteristics.") (emphasis added); id. at 7-1 ("[T]he assessor
must not consider only the physical attributes of the land and
improvements but the intangible benefits that are associated
with them.").
¶54 Further, a dark property is more likely to have
characteristics that would make it less valuable than a property
that was on the market for a shorter period of time. For
example, if a building has been unoccupied for a long period of
time, it is more likely to be in some kind of disrepair and in
turn more likely to require significant investment to make it
usable again.
¶55 The assessments in this case were consistent with the
above provisions of the Manual and thus the circuit court was
not obligated to reject the assessments. The circuit court
determined that multiple properties on which Lowe's relied were
not just vacant, but were dark. As to the dark properties on
which Lowe's relies, the Manual counsels against using such
properties as comparables to properties that are not similarly
dark. Specifically, the Manual states: "The assessor should
avoid using sales of improved properties that are vacant
('dark') or distressed as comparable sales unless the subject
property is similarly dark or distressed." Id. at 9-12.
¶56 Further buttressing the application of this directive
is the court of appeals' decision in Bonstores Realty One, LLC
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No. 2019AP1987
v. City of Wauwatosa, 351 Wis. 2d 439, ¶¶20-22. In Bonstores,
the court of appeals affirmed the circuit court's determination
that an expert's opinion was unreliable because the opinion
disregarded differences in the vacancy status of proffered
comparable properties. Id., ¶22. Here, the circuit court's
decision was similar to and consistent with that in Bonstores.
¶57 The Manual's directive that assessors "should avoid"
use of vacant and dark properties in assessing occupied
properties is consistent with general principles of real estate
assessment. Specifically, real estate must be valued at its
highest and best use. Collison, 397 Wis. 2d 246, ¶37. The
highest and best use of a store in an area that is conducive to
business (and is in fact operating as a business) is different
from the highest and best use of a property that contains a
failed big-box store. Lowe's' argument treats these different
things alike, which is not the "apples to apples" comparison
contemplated in a tier 2 analysis. See Bonstores, 351
Wis. 2d 439, ¶21.
¶58 In examining the distressed "comparable properties" in
receivership on which Lowe's relies, Lowe's fares no better.
Again, the Manual counsels against the use of such properties as
comparable, and with good reason. See 1 Wisconsin Property
Assessment Manual 9-12. A property in receivership is often
sold under vastly different economic conditions and subject to
vastly different incentives from a property that is not in
receivership.
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No. 2019AP1987
¶59 To explain, "[a] Wis. Stat. ch. 128 receivership
provides a way to liquidate the assets of a business debtor in
an orderly and controlled manner." Kristin K. Beilke et al.,
Collections and Bankruptcy in Wisconsin § 2.16 (3d ed. 2022).
"The object and purpose of assignment law is to afford an equal
distribution of the assignor's estate to all creditors in
proportion to their claims." Linton v. Schmidt, 88 Wis. 2d 183,
198, 277 N.W.2d 136 (1979).
¶60 This court has stated that the assignee, or receiver,
is "the trustee for both the debtor and the creditors; with the
duty to administer the trust property so as to pay the
creditors, as far as possible, their just claims, and then to
account to the debtor for the surplus." Id. However, the
receiver is "bound to look primarily to the interests of the
creditors." Id. Given this responsibility, differing
incentives come into play and a sale of receivership property
may not reflect the same price as a similar property not in
receivership would receive on the open market. For example, a
receiver may be motivated to sell the property more quickly so
as to secure timely payment of creditors and avoid the building
falling into disrepair.
¶61 Receivership can thus result in a "distressed" sale.
Although the mere fact of a receivership does not automatically
affect a property's market value, a claim that a distressed
property is comparable to an operating one should be subjected
to a court's keen scrutiny. The circuit court was therefore not
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No. 2019AP1987
obligated to accept MaRous's analysis that was based on an
equivalency between distressed and operating properties.
¶62 Given the above analysis and the circuit court's
evaluation of the evidence presented, Lowe's' contention that it
presented significant contrary evidence sufficient to overcome
the presumption of correctness in this case is ultimately
unpersuasive. In evaluating comparable properties two and five,
the former K-Mart and Target stores, the circuit court made a
factual determination that both of these properties were "vacant
beyond the 2-3 year window that Mr. MaRous apparently identifies
as the normal exposure time for the Delevan area." Accordingly,
it concluded that these properties were "dark" and determined
that neither of these stores was comparable to the subject
property. It observed that "[b]oth of these stores appear to
fall within the category of 'dark' properties based on the
extensive period of time during which they stood empty and were
unable to be sold" given that they were "on the market for sale
for a period of time beyond the normal exposure time needed to
obtain market value." Thus, the circuit court concluded that
these properties "have a major deficiency when compared with the
Lowe's store in question." This "deficiency" was, in the
circuit court's view, "significant," and "call[ed] into question
the value of [MaRous's] appraisal as a whole."
¶63 Likewise, with regard to the distressed properties
under receivership (comparables one, three, and six, the former
American TV properties), the circuit court similarly made a
factual determination, reaching the "inescapable conclusion"
25
No. 2019AP1987
that "American TV was going out of business, subject to a
receivership, and needed to liquidate their assets." Under such
conditions, the circuit court determined that these properties
were not comparable to the subject property as MaRous advanced.
¶64 Lowe's contends that MaRous "exercised exceptional
diligence in investigating the circumstances surrounding each
sale" of properties in receivership, asserting that "each of the
properties were sufficiently exposed to the market with high
demand from numerous potential buyers, and that each of the
consummated sales was an arm's length transaction reflecting
full fee simple market value." However, after evaluating the
evidence, the circuit court determined that MaRous's analysis
was deficient.
¶65 The circuit court observed that "there is no testimony
that any of [the distressed properties] were put on the
traditional real estate market for sale for the normal exposure
time before they were placed as an asset into a receivership."
Without an explanation from MaRous, the circuit court stated
that it "simply does not know whether the amount obtained on the
traditional non-receivership open market would have been the
same or different if no receivership was in place and Mr. MaRous
did not adequately explain why the receivership itself doesn't
matter or is irrelevant as it relates to that concern." The
circuit court further did not accept MaRous's valuation because
of the sheer amount of weight his analysis placed on the
distressed sales:
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No. 2019AP1987
The Court might be able to overlook one comparable
sale in receivership or under possible duress as an
outlier if it was able to put that outlier in the
context of five other properties without significant
flaws, not in receivership, with similar adjusted
values. However, the Court cannot do so here because
of the number of properties in receivership and the
flaws of the other non-receivership comparable sales.
¶66 In contrast, the comparable properties presented by
the City's appraiser, Chapko, were not dark or distressed.15
Instead, all of these properties were occupied at the time of
sale. Additionally, Chapko testified that there was no duress
involved in any of the sales, none were bank-owned or in
bankruptcy, and all were exposed to the open market for a
sufficient period of time.
¶67 Although it recognized that "Chapko's analysis also
has flaws," such as his "less than ideal" use of multi-tenant
shopping centers, the circuit court found that Chapko made
adjustments that "are reasonable, sufficient, and credible" to
account for differences in the comparable properties and the
These properties were all occupied and included Shopko
15
stores in Madison, Monona, and West Bend; a multi-tenant big-box
building in Grand Chute; a big-box building in Milwaukee divided
into two units, one leased to Pick 'n Save and the other to
Kohl's; a multi-tenant shopping center in Racine anchored by
Hobby Lobby, DSW, Bed Bath & Beyond, and T.J. Maxx; and a Mills
Fleet Farm store in Hudson.
Chapko did not use all of the same properties as
comparables for his 2017 appraisal as he used for the 2016
appraisal, instead updating the 2017 appraisal with two new
sales that occurred in 2016 and discarding the two oldest sales
from the 2016 appraisal. This list reflects the properties used
in both the 2016 and 2017 appraisals without differentiating
between the two.
27
No. 2019AP1987
subject property. Foremost in the circuit court's determination
of the credibility of the dueling appraisals was the experts'
differing methodologies and specifically their differing
reliance on dark and distressed properties: "Maybe most
importantly, [Chapko] did not use any properties, much less half
of his properties that were subject to a receivership or could
otherwise be argued as being distressed. Nor did he use any
'dark' properties." Thus, the circuit court found "[Chapko's]
opinion credible under the circumstances."
¶68 It is in the province of the circuit court as the
trier of fact to make determinations of the weight and
credibility of evidence. Metro. Assocs., 379 Wis. 2d 141, ¶61;
Lessor v. Wangelin, 221 Wis. 2d 659, 665, 586 N.W.2d 1 (Ct. App.
1998) ("When the trial court acts as the finder of fact, it is
the ultimate arbiter of the credibility of the witnesses and of
the weight to be given to each witness's testimony."). On
review, such a determination will only be overturned if it is
clearly erroneous. Metro. Assocs., 379 Wis. 2d 141, ¶62. Here,
the circuit court made a determination that "the evidence
presented by Lowe's in this case is significantly less credible
than that presented by the City when it comes to a proper value
to be attached to this real estate for the years 2016 and 2017."
¶69 On this record, we cannot conclude that the circuit
court's factual findings, including its credibility
determinations, were clearly erroneous. The circuit court
examined MaRous's conclusions and methodology and ultimately
determined that the City's proffered testimony and proposed
28
No. 2019AP1987
valuation were more credible. Such a determination was not
"against the great weight and clear preponderance of the
evidence." See id. Rather, the circuit court's determination
has support in the record as explained above.
¶70 We emphasize that our determination is based on the
facts and circumstances presented to the circuit court, and the
circuit court's evaluation of those facts and circumstances. At
oral argument before this court, the parties agreed that the
Manual does not create a categorical bright-line rule against
the use of vacant properties in the assessment of occupied
properties. Indeed, counsel for the City advanced: "I don't
think there is this bright-line categorical exclusion" and
"[t]here is no bright-line rule that says vacant properties
cannot be used."
¶71 Consistent with the parties' agreement, we do not read
the Manual to strictly prohibit the use of vacant properties as
comparable to occupied properties. The language of "should
avoid" is not mandatory. Cf. Village of Elm Grove v. Brefka,
2013 WI 54, ¶23, 348 Wis. 2d 282, 832 N.W.2d 121 (explaining
that the word "shall" is presumed mandatory). We acknowledge
that the Manual does not provide specific guidance on when a
vacant, dark, or distressed property may be meaningfully
comparable to an occupied property. However, we take the
"should avoid" language to mean that the comparability of vacant
properties to occupied properties exists along a continuum
depending upon how long the property has been vacant as compared
to the normal exposure time for a property of that type in the
29
No. 2019AP1987
same geographic area. We emphasize that the Manual urges
assessors to use caution in utilizing such comparables, as the
economics underlying a vacancy may be indicative of a meaningful
difference in the circumstances of the properties.
¶72 Accordingly, we determine that Lowe's failed to
demonstrate that the City's assessments were excessive. Giving
deference to the circuit court's factual findings, including its
credibility determinations, we conclude that Lowe's did not
provide significant contrary evidence sufficient to overcome the
presumption of correctness.
IV
¶73 In sum, we determine that the assessments in this case
were properly afforded a presumption of correctness. Pursuant
to Wis. Stat. § 70.49(2), the presumption attaches upon the
filing of the assessment along with the assessor's affidavit.
¶74 We further determine that Lowe's failed to demonstrate
that the City's assessments were excessive. Giving deference to
the circuit court's factual findings, including its credibility
determinations, we conclude that Lowe's did not provide
significant contrary evidence sufficient to overcome the
presumption of correctness.
¶75 Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
30
No. 2019AP1987.rgb
¶76 REBECCA GRASSL BRADLEY, J. (concurring). The
circuit court properly afforded the City of Delavan's 2016 and
2017 property assessments a presumption of correctness under
Wis. Stat. § 70.49(2), and Lowe's did not demonstrate the City's
assessments were excessive under Wis. Stat. § 74.37.
Accordingly, the court correctly affirms the decision of the
court of appeals. I write separately because the majority melds
the circuit court's conclusions of law and findings of fact into
nothing more than a credibility determination to which it
accords deference. The standard of review instead demands
independent review of circuit courts' conclusions of law in
cases concerning property tax assessments.
¶77 In challenging the City of Delavan's property
assessments, Lowe's submitted an alternative tier-2 sales-
comparison assessment conducted by Michael MaRous. That
assessment identified six properties MaRous deemed comparable to
the Lowe's store in Delavan. The circuit court rejected
MaRous's assessment, determining none of the properties were
comparable to the subject property. Of the six, the court
deemed three distressed, two dark, and one generally
noncomparable to the subject property. The court ultimately
concluded Lowe's did not present "significant contrary evidence"
to overcome the presumption of correctness afforded the City's
assessment.
¶78 The majority characterizes the circuit court's
conclusion as a "credibility determination." Majority op., ¶5.
1
No. 2019AP1987.rgb
As a result, the majority gives the circuit court's conclusion
blanket deference. The majority's characterization is incorrect
and its deference therefore misplaced. The circuit court's
conclusion that Lowe's did not overcome the presumption of
correctness is grounded in law, rather than a fact-bound
credibility determination. To reach that conclusion, the court
deemed the properties in MaRous's assessment to be dark,
distressed, or generally noncomparable. Whether a property is
dark, distressed, or generally noncomparable presents a question
of law subject to independent review, and the circuit court's
conclusions of law are not entitled to deference on appeal. If
appellate courts defer to circuit courts' legal conclusions in
property tax assessment cases, taxpayers will lose any avenue
for meaningful appeal.
¶79 "When the question on appeal is whether a statutory
concept embraces a particular set of factual circumstances, the
reviewing court is generally presented with a mixed question of
fact and law." Pabst Brewing Co. v. City of Milwaukee, 125
Wis. 2d 437, 444, 373 N.W.2d 680 (Ct. App. 1985) (citing
Nottelson v. DILHR, 94 Wis.2d 106, 115–16, 287 N.W.2d 763(1980)); see also Am. Fed'n of State, Cnty., & Mun. Emps. Loc.
1901 v. Brown Cnty., 146 Wis. 2d 728, 739–40, 432 N.W.2d 571(1988). Questions of fact address "who did what, when or where,
how or why." U.S. Bank Nat. Ass'n ex rel. CWCapital Asset Mgmt.
LLC v. Vill. at Lakeridge, LLC, 538 U.S. __, 138 S. Ct. 960, 966
(2018). Questions of law ask whether the facts found satisfy
the relevant legal standard. Id. We "uphold a circuit court's
2
No. 2019AP1987.rgb
findings of fact unless they are clearly erroneous," but
independently review questions of law. Langlade County v.
D.J.W., 2020 WI 41, ¶¶24–25, 391 Wis. 2d 231, 942 N.W.2d 277;
see also Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 236,
517 N.W.2d 658 (1994) (explaining when reviewing mixed questions
this court will not upset findings of fact unless they are
clearly erroneous but will review conclusions of law
independently).
¶80 Property assessment cases like this one typically
involve competing valuations accompanied by testimony of the
assessors in support of their own. "Where there is conflicting
testimony the fact finder is the ultimate arbiter of
credibility," and this court will therefore defer to the circuit
court's findings of fact unless they are clearly erroneous.
Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104,
¶27, 294 Wis. 2d 441, 717 N.W.2d 803. Whether property
valuations comport with the law, however, is a question of law,
not fact. Wisconsin Statute § 70.32(1) provides that "[r]eal
property shall be valued by the assessor in the manner specified
in the Wisconsin property assessment manual. . . ." Whether the
city complied with Wis. Stat. § 70.32 "in making its assessment
is a question of statutory interpretation that we review de
novo." Adams Outdoor Advert., Ltd., 294 Wis. 2d 441, ¶26.
Appellate courts "independently review whether a valuation
complied with the statutes and the Wisconsin Property Assessment
Manual." Bonstores Realty One, LLC v. City of Wauwatosa, 2013
WI App 131, ¶6, 351 Wis. 2d 439, 839 N.W.2d 893. Accordingly,
3
No. 2019AP1987.rgb
whether an assessor properly deemed a property "dark" within the
meaning of the Manual presents a mixed question of fact and law.
¶81 To decide whether a property is dark, a circuit court
must make findings of fact regarding how long properties similar
to the subject property typically sit vacant and how long the
assessed property had been vacant. 1 Wisconsin Property
Assessment Manual 9-12 (2016). After making such findings, the
court must determine whether the property has sat vacant beyond
the period of time similar properties remained vacant. Id. If
it has, the relevant property is dark and therefore not likely
to be comparable to the subject property. See id. Because
factual findings underlie the legal determination of whether a
property is "dark," the question is neither purely legal nor
purely factual. It presents a mixed question of fact and law.
¶82 How long the assessed property and comparable
properties have sat vacant are questions of fact because they
address what has happened. We therefore reverse those findings
only if clearly erroneous. Whether the period of vacancy for
the assessed property renders it "dark" presents a question of
law because it entails application of the law to the facts
surrounding the vacancy of comparable properties compared with
the vacancy of the assessed property. In this case, applying
the law to the facts yielded an obvious answer. The circuit
court needed to decide only whether four years, the length of
time two comparable properties in MaRous's assessment sat
vacant, is longer than three years, the length of time
properties similar to the assessed property typically sit
4
No. 2019AP1987.rgb
vacant. However simple that analysis might be in this case, it
should be reviewed independently.
¶83 The majority defers to the circuit court's conclusion
that certain properties used by MaRous are dark, even though
that conclusion involves the application of law to the facts.
Majority op., ¶¶68–69. While having no effect on the outcome of
this case——the circuit court was correct that four years is
longer than three years——such unfettered deference may deprive a
taxpayer of the opportunity for meaningful appeal in a closer or
more complex case.
¶84 A more complex case is bound to arise. According to
the Manual, comparable properties are those "similar to the
subject property in age, condition, use, type of construction,
location, design, physical features and economic
characteristics." 1 Wisconsin Property Assessment Manual 7-24
(2016). Even in this relatively straightforward case, the
circuit court deemed one of the properties on which MaRous
relied (a former Lowe's store in Brown Deer) generally
noncomparable. To reach that conclusion, the circuit court
analyzed that store's sale price, financial condition, and
contracts with the City of Brown Deer. In doing so, the circuit
court found "financial abnormalities," based on which it deemed
the store generally noncomparable with the subject property.
Similar to deciding whether a property is dark, determining
whether a property is generally noncomparable presents a
question of law entailing the application of law to the facts.
Such questions of law may be more challenging than deeming a
5
No. 2019AP1987.rgb
property dark. Appellate courts must not defer to circuit
courts' determinations on such questions.
¶85 Given the rigor of general-comparability analyses,
circuit courts might err in performing them. Nevertheless, the
majority gives the circuit court's general-comparability
analysis deference, misconstruing its conclusions of law to be
findings of fact. In cases like this, appellate courts must
review such questions of law independently. If the power to tax
is the power to destroy,1 taxpayers must have access to
meaningful appeal when challenging property tax assessments.
¶86 I am authorized to state that Justice PATIENCE DRAKE
ROGGENSACK joins this concurrence.
1 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819).
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No. 2019AP1987.rgb
1