City of Waukesha v. City of Waukesha Board of Review ( 2021 )

2021 WI 89SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1479
COMPLETE TITLE: State of Wisconsin ex rel. City of Waukesha,
Petitioner-Respondent-Petitioner,
v.
City of Waukesha Board of Review,
Respondent-Appellant,
Salem United Methodist Church,
Interested Party-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 395 Wis. 2d 239,952 N.W.2d 806PDC No:2020 WI App 77 - Published)
OPINION FILED: December 21, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 27, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Michael O. Bohren
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion for a
unanimous Court.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-respondent-petitioner, there were briefs
filed by Brian E. Running, city attorney. There was an oral
argument by Brian E. Running.
For the respondent-appellant, there was a brief filed by
Eric J. Larson and Municipal Law & Litigation Group, S.C.,
Waukesha. There was an oral argument by Eric J. Larson.
An amicus curiae brief was filed on behalf of League of
Wisconsin Municipalities by Claire Silverman, Madison.
2
2021 WI 89NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1479
(L.C. No. 2018CV1432)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. City of Waukesha,
Petitioner-Respondent-Petitioner,
v.
FILED
City of Waukesha Board of Review,
DEC 21, 2021
Respondent-Appellant,
Sheila T. Reiff
Salem United Methodist Church, Clerk of Supreme Court
Interested Party-Respondent.
ANN WALSH BRADLEY, J., delivered the majority opinion for a
unanimous Court.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. The petitioner, City of
Waukesha (the City), seeks review of a published opinion of the
court of appeals that reversed the circuit court's order that
allowed the City to seek certiorari review of a tax assessment
determination of the City of Waukesha Board of Review (the
No. 2019AP1479
Board).1 The court of appeals concluded instead that the City
could not seek such review, reversed the circuit court's
determination, and remanded to the circuit court with directions
to quash the writ of certiorari and dismiss the action.
¶2 This case raises the novel question of whether the
municipality itself can seek certiorari review of a
determination of the municipality's board of review. The City
contends that the statutory language of Wis. Stat. § 70.47(2017-18)2 allows it to appeal a Board determination by bringing
a certiorari action pursuant to § 70.47(13). The Board, in
contrast, argues that the City has no such right and that the
City's participation in a tax assessment proceeding ends after
the Board has made its decision.
¶3 We conclude that Wis. Stat. § 70.47 does not allow the
City to seek certiorari review of a decision of the Board.
Accordingly, we affirm the decision of the court of appeals.
I
¶4 The Salem United Methodist Church (the Church) owns a
piece of property located within the City. In 2017, the
property was assessed at a value of $51,900, but the following
year the assessment was raised to $642,200. The reassessment
was triggered by the Church putting the property up for sale.
State ex rel. City of Waukesha v. City of Waukesha Bd. of
1
Rev., 2020 WI App 77, 395 Wis. 2d 239, 952 N.W.2d 806 (reversing
and remanding the order of the circuit court for Waukesha
County, Michael O. Bohren, Judge).
All subsequent references to the Wisconsin Statutes are to
2
the 2017-18 version unless otherwise indicated.
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No. 2019AP1479
Ultimately, the Church received an offer of $1,000,000 for a
portion of the property.3
¶5 Taking exception to the increase in the assessed value
of its property, the Church filed an objection. It submitted
that the value of the property should be properly assessed at
$108,655. The Church argued that the City's valuation was based
on speculative future use and that it did not properly account
for the undeveloped nature of the land.
¶6 At a hearing held before the Board, both the taxpayer
and the City appeared as parties. The City argued in favor of
the City assessor's valuation. After taking testimony from the
assessor and a representative of the Church, the Board accepted
the Church's valuation, but rounded up slightly to arrive at a
value of $108,700.
¶7 The City appealed the Board's determination by seeking
certiorari review in the circuit court pursuant to Wis. Stat.
§ 70.47(13).4 It argued that the Board acted contrary to law
3 The property at issue consists of 23.16 acres. Of this
amount, the Church listed for sale two parcels consisting of
8.77 acres for a total asking price of $1,400,000. The
referenced offer was for a 5.27 acre parcel.
4 Governing certiorari review of board of review
proceedings, Wis. Stat. § 70.47(13) provides:
Except as provided in s. 70.85, appeal from the
determination of the board of review shall be by an
action for certiorari commenced within 90 days after
the taxpayer receives the notice under sub. (12). The
action shall be given preference. If the court on the
appeal finds any error in the proceedings of the board
which renders the assessment or the proceedings void,
it shall remand the assessment to the board for
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No. 2019AP1479
because it failed to uphold the presumption of correctness that
attaches to an assessor's valuation,5 that the Board's
determination was not supported by sufficient credible evidence,
and that the Board's decision was arbitrary and unreasonable.6
¶8 Contending that the City's petition failed to state a
claim upon which relief may be granted, the Board moved to quash
the writ. As relevant here, it asserted that the City lacks the
authority under Wis. Stat. § 70.47 to appeal a decision of its
own Board of Review by certiorari. In other words, it argued
that § 70.47 affords only taxpayers, and not municipalities, the
ability to seek certiorari review of a board decision.
¶9 The circuit court denied the motion to quash,
concluding that Wis. Stat. § 70.47 "does give the City the
further proceedings in accordance with the court's
determination and retain jurisdiction of the matter
until the board has determined an assessment in
accordance with the court's order. For this purpose,
if final adjournment of the board occurs prior to the
court's decision on the appeal, the court may order
the governing body of the assessing authority to
reconvene the board.
5 See Wis. Stat. § 70.47(8)(i) ("The board shall presume
that the assessor's valuation is correct. That presumption may
be rebutted by a sufficient showing by the objector that the
valuation is incorrect."); Sausen v. Town of Black Creek Bd. of
Rev., 2014 WI 9, ¶26, 352 Wis. 2d 576, 843 N.W.2d 39.
6 On certiorari review, a court's inquiry is limited to
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. Collison v. City of
Milwaukee Bd. of Rev., 2021 WI 48, ¶20, 397 Wis. 2d 246, 960
N.W.2d 1.
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No. 2019AP1479
ability to intervene and have a role in the writ of certiorari
proceedings." Turning to the merits of the City's claims, the
circuit court agreed with the City that the Church did not
present sufficient evidence to overcome the presumption of
correctness. It thus granted the writ of certiorari and
remanded to the Board for further proceedings.
¶10 The Board appealed, and the court of appeals reversed
the circuit court's order, concluding "that § 70.47(13) does not
authorize the City to commence a certiorari action." State ex
rel. City of Waukesha v. City of Waukesha Bd. of Rev., 2020 WI
App 77, ¶2, 395 Wis. 2d 239, 952 N.W.2d 806. Accordingly, it
determined that the circuit court erred in denying the Board's
motion to quash and as a result did not address the merits of
the City's arguments that the Board acted unlawfully,
unreasonably, and contrary to the credible evidence. Id., ¶2
n.2. The City petitioned for this court's review.
II
¶11 We are called upon to review the court of appeals'
determination that the circuit court erroneously denied the
Board's motion to quash. "A motion to quash a writ of
certiorari is in the nature of a motion to dismiss." Fee v. Bd.
of Rev. for Town of Florence, 2003 WI App 17, ¶7, 259
Wis. 2d 868, 657 N.W.2d 112. Whether a motion to dismiss was
properly granted or denied is a question of law this court
reviews independently of the determinations rendered by the
circuit court and court of appeals. Town of Lincoln v. City of
Whitehall, 2019 WI 37, ¶21, 386 Wis. 2d 354, 925 N.W.2d 520.
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No. 2019AP1479
¶12 In our review, we are required to interpret Wis. Stat.
§ 70.47. Statutory interpretation likewise presents a question
of law we review independently of the determinations of the
circuit court and court of appeals. Yacht Club at Sister Bay
Condo. Ass'n, Inc. v. Village of Sister Bay, 2019 WI 4, ¶17, 385
Wis. 2d 158, 922 N.W.2d 95.
III
¶13 For context, we begin by providing background on board
of review proceedings. Subsequently, we address the question of
whether the City may seek certiorari review of a Board decision
under the terms of Wis. Stat. § 70.47.
A
¶14 Assessment of real property in every municipality in
Wisconsin is accomplished according to the terms of ch. 70 of
the Wisconsin Statutes. Wis. Stat. § 70.05(1). All property is
valued by the municipality's assessor and reported in an
assessment roll for the taxation district. Nankin v. Village of
Shorewood, 2001 WI 92, ¶17, 245 Wis. 2d 86, 630 N.W.2d 141.
¶15 Chapter 70 also "establishes a comprehensive procedure
by which property owners may challenge the valuation or the
amount of property assessed for taxation." Hermann v. Town of
Delavan, 215 Wis. 2d 370, 379, 572 N.W.2d 855 (1998). "If a
property owner disagrees with an assessment, the owner may file
a formal objection with the municipality's board of review."
Nankin, 245 Wis. 2d 86, ¶17 (citing Wis. Stat. § 70.47(7)(a)
(1997-98)).
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No. 2019AP1479
¶16 The board of review is a quasi-judicial body that
hears evidence and decides whether the assessor's valuation is
correct. Id., ¶18 (citation omitted). It is not an assessing
body. Id. The board presumes that the assessor's valuation is
correct, but this presumption may be rebutted "by a sufficient
showing by the objector that the valuation is incorrect." Wis.
Stat. § 70.47(8)(i); Sausen v. Town of Black Creek Bd. of Rev.,
2014 WI 9, ¶26, 352 Wis. 2d 576, 843 N.W.2d 39. If the
assessment is determined to be incorrect, "the board shall raise
or lower the assessment accordingly and shall state on the
record the correct assessment and that that assessment is
reasonable in light of all of the relevant evidence that the
board received." § 70.47(9)(a).
¶17 A detailed method for appealing a decision of the
board of review is provided within the statutory scheme of chs.
70 and 74. Hermann, 215 Wis. 2d at 379. Three options exist
for property owners who wish to appeal a board decision: (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;7 and (3) an excessive
Wisconsin Stat. § 70.85 provides an alternative procedure
7
by which a taxpayer may seek the Department of Revenue's review
of a board determination in specific circumstances. Namely,
pursuant to § 70.85(1),
A taxpayer may file a written complaint with the
department of revenue alleging that the assessment of
one or more items or parcels of property in the
taxation district the value of which, as determined
under s. 70.47, does not exceed $1,000,000 is
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No. 2019AP1479
assessment action pursuant to Wis. Stat. § 74.37.8 U.S. Oil Co.,
Inc. v. City of Milwaukee, 2011 WI App 4, ¶15, 331 Wis. 2d 407,
794 N.W.2d 904; Thomas J. McAdams, Over Assessed? Appealing
Home Tax Assessments, Wis. Law., July 2011, at 18-19.
"Compliance with the board of review procedures is a
prerequisite to all three forms of appeal and the three sections
are the exclusive method for challenging an excessive
assessment." Reese v. City of Pewaukee, 2002 WI App 67, ¶6, 252
Wis. 2d 361, 642 N.W.2d 596.
¶18 This case involves the first of these three options, a
certiorari action. Certiorari is a mechanism by which a court
may test the 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 (citing Ottman v. Town of Primrose,
2011 WI 18, ¶34, 332 Wis. 2d 3, 796 N.W.2d 411).
¶19 On certiorari review, the reviewing court's inquiry is
narrow. It 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,
radically out of proportion to the general level of
assessment of all other property in the district.
An action under Wis. Stat. § 74.37 is a new trial, not a
8
certiorari action. Metro. Assocs. v. City of Milwaukee, 2018 WI
4, ¶23, 379 Wis. 2d 141, 905 N.W.2d 784. Such an action 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.
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No. 2019AP1479
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. Thoma
v. Village of Slinger, 2018 WI 45, ¶10, 381 Wis. 2d 311, 912
N.W.2d 56.
B
¶20 With this background in hand, we turn next to address
the specific issue in this case. The parties raise a novel
question regarding whether a municipality may appeal its board
of review's determination by certiorari review.
¶21 Answering this question requires us to examine the
language of Wis. Stat. § 70.47, which governs board of review
proceedings. When interpreting statutes, we begin with the
language of the statute. State ex rel. Kalal v. Cir. Ct. for
Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
If the meaning of the statute is plain, we need not inquire
further. Id.¶22 "Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. We also interpret statutory
language "in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46.
¶23 Wisconsin Stat. § 70.47(13) addresses certiorari
review of board decisions. This subsection provides in relevant
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No. 2019AP1479
part: "Except as provided in s. 70.85, appeal from the
determination of the board of review shall be by an action for
certiorari commenced within 90 days after the taxpayer receives
the notice under sub. (12)." § 70.47(13).
¶24 The language of subsec. (13) thus guides the reader to
subsec. (12), which sets forth:
Prior to final adjournment, the board of review shall
provide the objector, or the appropriate party under
sub. (10),[9] notice by personal delivery or by mail,
return receipt required, of the amount of the
assessment as finalized by the board and an
explanation of appeal rights and procedures under sub.
(13) and ss. 70.85, 74.35 and 74.37. Upon delivering
or mailing the notice under this subsection, the clerk
of the board of review shall prepare an affidavit
specifying the date when that notice was delivered or
mailed.
9 Pursuant to Wis. Stat. § 70.47(10), "If the board has
reason to believe that property for which no objection has been
raised is incorrectly assessed, the board must also review the
assessment for such property and correct any error it
discovers." Hermann v. Town of Delavan, 215 Wis. 2d 370, 379,
572 N.W.2d 855 (1998). Section 70.47(10) provides in relevant
part:
If the board has reason to believe, upon examination
of the roll and other pertinent information, that
other property, the assessment of which is not
complained of, is assessed above or below the general
average of the assessment of the taxation district, or
is omitted, the board shall:
(a) Notify the owner, agent or possessor of such
property of its intention to review such assessment or
place it on the assessment roll and of the time and
place fixed for such hearing in time to be heard
before the board in relation thereto, provided the
residence of such owner, agent or possessor be known
to any member of the board or the assessor.
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No. 2019AP1479
¶25 The Board argues, and the court of appeals agreed,
that the above language gives the taxpayer exclusively, and not
the City, the authority to seek certiorari review of a Board
decision. Specifically, the Board asserts that the trigger for
filing a certiorari action contained in Wis. Stat. § 70.47(13)
is the receipt of notice by the taxpayer. In contrast,
§ 70.47(13) does not, according to the Board, include any
trigger for the City to file a certiorari action or even any
requirement that the City receive notice of a Board decision.
¶26 On the other hand, the City contends that subsec. (13)
addresses only when certiorari review may be sought, not who may
seek it. In other words, the City asserts that nothing in Wis.
Stat. § 70.47(13) grants any right to appeal whatsoever, and
that instead it only ensures that the taxpayer is aware of a
right to appeal and fixes the timing of the notice that must be
sent. The fact that § 70.47(13) mentions the taxpayer only and
not the City is of no moment, according to the City, because the
City will be aware of the clerk's affidavit referenced in
subsec. (12) and will use the affidavit to determine the date
the notice was delivered and calculate the appeal deadline.
¶27 For additional support, the City points to Wis. Stat.
§ 70.47(11), which provides: "In all proceedings before the
board the taxation district shall be a party in interest to
secure or sustain an equitable assessment of all the property in
the taxation district." See Wis. Stat. § 70.045 (defining a
"taxation district" as "a town, village or city in which general
property taxes are levied and collected"). In the City's view,
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No. 2019AP1479
it would not be a reasonable reading of the statute to conclude
that the City has a protectable interest before the Board, but
it does not maintain that interest after the Board makes its
decision. The City advances that such a reading of § 70.47(11)
would render its interest illusory.
¶28 Synthesizing the text of subsecs. (11), (12), and
(13), we agree with the Board's argument.10 Beginning with Wis.
Stat. § 70.47(13), that subsection provides that "appeal from
the determination of the board of review shall be by an action
for certiorari commenced within 90 days after the taxpayer
receives the notice under sub. (12)." What is notable about
subsec. (13) for our analysis is that it conditions the appeal
deadline on when notice is received by the taxpayer. There is
nothing in the statute that triggers the 90-day period for the
City. We also highlight that it is the taxpayer's receipt of
the notice described in subsec. (12), and not when the notice is
sent, that begins the statutory appeal period.
¶29 Moving to subsec. (12), specific directions are given
as to the delivery of the notice referenced in subsec. (13).
The first sentence of Wis. Stat. § 70.47(12) provides:
Prior to final adjournment, the board of review shall
provide the objector, or the appropriate party under
sub. (10), notice by personal delivery or by mail,
return receipt required, of the amount of the
Because we determine that the City does not have appeal
10
rights under the applicable statutes, we need not address the
City's contention that the taxpayer here failed to meet its
burden to overcome the presumption that the assessor's valuation
is correct.
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No. 2019AP1479
assessment as finalized by the board and an
explanation of appeal rights and procedures under sub.
(13) and ss. 70.85, 74.35 and 74.37.
¶30 Like subsec. (13), subsec. (12) refers to the
taxpayer, or "objector," only. It does not refer to the City
and does not provide for any notice to be given to the City.
This means that the City is not required to receive the
"explanation of appeal rights and procedures" that the taxpayer
receives.
¶31 Further parsing the statutory language, subsec. (12)
offers two options for providing the requisite notice to the
taxpayer: personal delivery or mail. The second sentence of
this subsection contains additional information regarding these
two options. It sets forth: "Upon delivering or mailing the
notice under this subsection, the clerk of the board of review
shall prepare an affidavit specifying the date when that notice
was delivered or mailed." Wis. Stat. § 70.47(12). In other
words, the clerk of the board of review must prepare an
affidavit stating when the notice was delivered, if personally
delivered, or when it was mailed, if mailed.
¶32 Notably, there is no requirement for the clerk of the
board of review to submit an affidavit with any delivery or
receipt information if the notice is mailed. Only the "date
when that notice was . . . mailed" is required, not the date
when the notice was received. See Wis. Stat. § 70.47(12). This
is an important point because the City asserts that it would
calculate its filing deadline using the affidavit referred to in
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No. 2019AP1479
subsec. (12), despite the fact that subsec. (13) does not refer
to the City.
¶33 However, a close reading of subsecs. (12) and (13)
reveals that the City's argument does not hold water. Again,
subsec. (13) sets forth that the deadline for filing a
certiorari action is triggered by the taxpayer's receipt of the
notice described in sub. (12). But subsec. (12) does not
provide an avenue for the City to be informed of when a taxpayer
receives the notice.
¶34 As stated, if the mail option is utilized, then the
board clerk's affidavit indicates only when the notice was
mailed, not when it was delivered or received by the taxpayer.
See Wis. Stat. § 70.47(12). However, the date a notice is
mailed is most likely not the same as the date the notice is
received. The City could guess as to what its ultimate filing
deadline would be, estimating the length of time the mail would
take to arrive and surmising when someone would be available to
sign for the "return receipt required" mail. There is no
statutory mechanism for calculating an exact date.
¶35 Additionally, subsec. (12) contains no requirement
that the board clerk provide a copy of the affidavit to the
City. Although in practice the City may receive it from the
board clerk, there is no statutory language to support the
proposition that it is required to be provided with the
affidavit.
¶36 The fact that there is no certain statutory deadline
provided for the City to file a certiorari action indicates that
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No. 2019AP1479
the City does not have such a right. Elsewhere in the statutes,
where a party has a right to file an appeal to the circuit court
or court of appeals, the legislature has provided a clear
deadline for doing so.11
¶37 Further, in other areas of the statutes the
legislature has clearly given a municipality the ability to
appeal the decision of a quasi-judicial board. For example, a
See, e.g., Wis. Stat. §§ 102.25(1) ("Any party aggrieved
11
by a judgment entered upon the review of any order or award [in
a worker's compensation matter] may appeal the judgment within
the period specified in s. 808.04(1)."); 227.53(1)(a)2. ("Unless
a rehearing is requested under s. 227.49, petitions for review
of contested cases shall be served and filed within 30 days
after the service of the decision of the agency upon all parties
under s. 227.48."); 227.58 ("Any party, including the agency,
may secure a review of the final judgment of the circuit court
by appeal to the court of appeals within the time period
specified in s. 808.04(1)."); 800.14(1) ("Appeals from
judgments, decisions on motions brought under s. 800.115, or
determinations regarding whether the defendant is unable to pay
the judgment because of poverty, as that term is used in s.
814.29(1)(d), may be taken by either party to the circuit court
of the county where the offense occurred. The appellant shall
appeal by giving the municipal court and other party written
notice of appeal and paying any required fees within 20 days
after the judgment or decision."); 808.04(1) ("An appeal to the
court of appeals must be initiated within 45 days of entry of a
final judgment or order appealed from if written notice of the
entry of a final judgment or order is given within 21 days of
the final judgment or order as provided in s. 806.06(5), or
within 90 days of entry if notice is not given, except as
provided in this section or otherwise expressly provided by
law."); 809.30(2)(j) ("The person shall file in circuit court
and serve on the prosecutor and any other party a notice of
appeal from the judgment of conviction and sentence or final
adjudication and, if necessary, from the order of the circuit
court on the motion for postconviction or postdisposition relief
within 20 days of the entry of the order on the postconviction
or postdisposition motion.").
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No. 2019AP1479
determination on "an initial permit, license, right, privilege,
or authority, except an alcohol beverage license" is reviewable
under ch. 68 of the Wisconsin Statutes. Wis. Stat. § 68.02(1).
In Wis. Stat. § 68.13(1) the legislature provides that "[a]ny
party to a proceeding resulting in a final determination may
seek review thereof by certiorari within 30 days of receipt of
the final determination" (emphasis added).
¶38 Similarly, Wis. Stat. § 62.23(7)(e)10. specifies that
certiorari review of a decision of a city zoning board of
appeals is open to "[a]ny person or persons, jointly or
severally aggrieved by any decision of the board of appeals, or
any taxpayer, or any officer, department, board or bureau of the
municipality." See also Wis. Stat. § 59.694(10) (specifying
that certiorari review of a decision of a county zoning board of
adjustment may be undertaken by "[a] person aggrieved by any
decision of the board of adjustment, or a taxpayer, or any
officer, department, board or bureau of the municipality"). No
such language is present in Wis. Stat. § 70.47(13). The
legislature thus knows how to provide municipalities with the
right to bring a certiorari action, but it did not do so in
§ 70.47(13).
¶39 The City's reliance on Wis. Stat. § 70.47(13) would
reduce its appeal deadline to mere guesswork. As the court of
appeals put it, "because the taxpayer is the only person
statutorily required to receive the notice and the date of that
receipt sets the appeal clock ticking, it strongly suggests that
the certiorari appeal provision was intended only for the
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No. 2019AP1479
benefit of an aggrieved taxpayer." City of Waukesha, 395
Wis. 2d 239, ¶27. We therefore conclude that Wis. Stat. § 70.47does not allow the City to seek certiorari review of a decision
of the Board.
¶40 This conclusion is supported by this court's
precedent. In Hermann, 215 Wis. 2d at 379, we described chs. 70
and 74 as establishing "a detailed method for taxpayers to
appeal a decision of the board of review" (emphasis added).12
Likewise, the court in Nankin, 245 Wis. 2d 86, ¶3, construed
Wis. Stat. § 70.47(13) as providing a means by which "an owner
can appeal from the board's determination by an action for
certiorari to the circuit court" (emphasis added). The City has
cited no published case, and we have found none, that
contradicts this understanding.
¶41 Such an understanding is further supported by
legislative history. See State v. Wilson, 2017 WI 63, ¶23, 376
Wis. 2d 92, 896 N.W.2d 682 (explaining that "legislative history
and other authoritative sources may be consulted to confirm a
plain meaning interpretation"). The current language in Wis.
Stat. § 70.47(13) that begins the appeal period 90 days after
"the taxpayer receives the notice under sub. (12)" was added to
the statute in 1994. See 1993 Wis. Act 307, § 3. In the fiscal
estimate prepared by the Department of Revenue regarding the
Although the court in Hermann, 215 Wis. 2d at 379,
12
referred to both chapter 70 and chapter 74, our decision in this
case is limited to certiorari actions under Wis. Stat.
§ 70.47(13).
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No. 2019AP1479
bill that became 1993 Wis. Act 307, the Department described the
thrust of the change as to "clarify the intended meaning of the
90-day period during which a property owner may appeal a board
of review decision to the circuit court." Drafting File for
1993 Wis. Act 307, Fiscal Estimate of 1993 A.B. 1095,
Legislative Reference Bureau, Madison, Wis.
¶42 Subsection (11) does not change this result and cannot
carry the weight the City places on it. Its plain language
grants the City the right to appear as a party in interest
"before the board," but such a grant goes no further. Neither
subsec. (12) nor subsec. (13) refers to the City as a "party in
interest" beyond proceedings before the board.
¶43 Wisconsin Stat. § 70.47(11) does not clearly state or
imply that the City may file a certiorari action to appeal a
Board decision. Instead, it limits a municipality's role to
participation in proceedings "before the board" for the express
purpose of "secur[ing] or sustain[ing] an equitable assessment
of all the property in the taxation district."
¶44 Additionally, were the City to prevail in this appeal
and accordingly raise the assessed value of the Church property
above the value as determined by the Board, there is no
statutory remedy to which the City can readily point. When the
court inquired about the apparent lack of a remedy at oral
argument, the City acknowledged that it did not know what the
remedy should be if it were to win.13
The following exchange between the court and counsel for
13
the City took place:
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No. 2019AP1479
¶45 In sum, we conclude that Wis. Stat. § 70.47 does not
allow the City to seek certiorari review of a decision of the
Board. Accordingly, we affirm the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
affirmed.
THE COURT: The tax levy is what it is. So if the
Church is under-assessed it means the other taxpayers
in the district are going to have a higher tax
bill. . . . Where does the money go if the City
ultimately prevails and the Church's assessment is
increased? Will the taxpayers receive a refund
because they paid too high of a tax rate? Is there a
law that addresses where the money goes?
. . .
COUNSEL: I do not know. I presume that the taxpayers
would not receive a refund. It would be ridiculous to
think that a tiny check of less than a dollar is going
to be mailed out in the City. Certainly there are
statutory procedures that the assessor and the
treasurer follow when they handle income. And
certainly there are instances where money is received,
tax revenue, after that tax year closes. There are
procedures for that. I cannot direct you to the
specific statutes that control that.
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No. 2019AP1479
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