Veritas Village, LLC v. City of Madison

2023 WI App 56COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2022AP507
†Petition for Review filed
Complete Title of Case:
VERITAS VILLAGE, LLC,
PLAINTIFF-APPELLANT,†
V.
CITY OF MADISON,
DEFENDANT-RESPONDENT.
Opinion Filed: October 26, 2023
Submitted on Briefs: September 22, 2022
Oral Argument:
JUDGES: Kloppenburg, P.J., Graham, and Nashold, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Jacob R. Sundelius and Patrick J. Coffey of Menn Law Firm,
Ltd., Appleton.
Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Jamie L. Staffaroni, assistant city attorney, Madison.
2023 WI App 56COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 26, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2022AP507 Cir. Ct. No. 2019CV1469
STATE OF WISCONSIN IN COURT OF APPEALS
VERITAS VILLAGE, LLC,
PLAINTIFF-APPELLANT,
V.
CITY OF MADISON,
DEFENDANT-RESPONDENT.
APPEAL from a judgment of the circuit court for Dane County:
MARIO WHITE, Judge. Affirmed.
Before Kloppenburg, P.J., Graham, and Nashold, JJ.
¶1 NASHOLD, J. Veritas Village, LLC (“Veritas”) appeals a circuit
court judgment upholding the City of Madison’s 2018 tax assessment of Veritas’s
apartment building. Veritas challenges the assessment as excessive under WIS.
No. 2022AP507
STAT. § 74.37 (2021-22).1 Specifically, Veritas argues that the City’s assessment
lost the presumption of correctness under WIS. STAT. § 70.49(2) because it did not
comply with the Wisconsin Property Assessment Manual (2018) (“the Manual”)2
and that this court should therefore credit the significantly lower appraised value
determined by Veritas’s appraiser.
¶2 The circuit court credited the City’s appraiser’s appraised value over
that of Veritas’s appraiser, and the parties agree that the key difference between the
two appraisals is the vacancy rates used by the appraisers in determining the value.
Veritas argues that the City was required to use the actual 72% vacancy rate that
existed on January 1, 2018, rather than a vacancy rate that took into account leases
that were anticipated to occur after that date. We disagree and therefore affirm the
circuit court order.
BACKGROUND
¶3 Veritas is the owner of a luxury four-story, multi-family property
consisting of 189 apartment units located in the downtown area of Madison,
Wisconsin (“the Property” or “the Veritas Property”). The Property consists of
studio and one-, two-, and three-bedroom units. The common area of the Property
includes underground parking and amenities such as a fitness center, a yoga studio,
a clubhouse, a coffee bar, an outdoor sundeck with pool, an outdoor lounge area and
fire pit, outdoor grilling stations, a party room, and a bike room.
1
All references to the Wisconsin Statutes are to the 2021-22 version.
2
All references are to the 2018 version of the Wisconsin Property Assessment Manual,
which is the version relied on by the parties and the circuit court.
2
No. 2022AP507
¶4 Construction of the Property was completed in 2017 and leasing
began in August of that year. As of January 1, 2018, the Property was 28%
occupied, meaning that it was 72% vacant. The parties agree that the Property was
in the process of “lease-up”3 as of January 1, 2018; that it was anticipated that
additional leases would be signed, thereby reducing the vacancy rate; and that, as of
January 1, 2018, the Property was not yet “stabilized.”4
¶5 The City assessed the Property at $17,780,000 based on the appraisal
conducted by City appraiser Scott West. Veritas filed an objection to the City’s
assessment and hired private appraiser Dominic Landretti to conduct a retrospective
appraisal, which valued the Property at $6,800,000. As stated, the difference in the
appraised values was due primarily to the differing vacancy rates used by the two
appraisers, with Landretti using a 72% vacancy rate that reflected the actual vacancy
rate of the Property on January 1, 2018, and West using a vacancy rate that
accounted for anticipated future leases.
¶6 The City subsequently hired private appraiser William Miller to
complete a retrospective appraisal of the Property, and Miller valued the Property
at $32,600,000. It is undisputed that the City’s assessment was based on West’s
appraisal, not Miller’s, and that Miller’s appraisal served only to confirm the City’s
view that the assessment is not excessive.
3
The parties use the term “lease-up,” but neither the parties nor the Manual define it. We
understand it to have the meaning offered by trial counsel for Veritas in his opening statement,
which is essentially the period during which leases are being obtained on a newly constructed
apartment building.
4
During his testimony, West explained that a property is considered “unstabilized” when
the vacancy level does not represent a market vacancy level.
3
No. 2022AP507
¶7 The Board of Assessors for the City of Madison and the Board of
Review sustained the City’s assessment of $17,780,000. Veritas paid $400,322.62
in real estate taxes on the Property calculated from the $17,780,000 assessment and
commenced this action against the City for excessive assessment under WIS. STAT.
§ 74.37.
¶8 The circuit court held a five-day bench trial, during which the court
heard testimony from the three appraisers, West, Miller, and Landretti; and from
Veritas’s developer and managing member, Terrence Wall.
¶9 Following the submission of post-trial briefs, the circuit court issued
a written decision. The court determined that Veritas did not overcome the
presumption of correctness afforded the City’s assessment under WIS. STAT.
§ 70.49(2). Specifically, the court concluded that West’s appraisal complied with
the Manual and with Wisconsin statutes and case law and that Veritas did not present
significant contrary evidence. In comparing West’s analysis to Landretti’s, the court
concluded that Landretti’s analysis, “which utilized both actual and market data[,]
creates a situation in which a completely vacant, luxury apartment complex has no
value for tax assessment purposes.” The court determined that the City’s assessment
and West’s conclusions were more “reliable, credible, and persuasive than those
offered by Veritas.” Given these conclusions, the court declined to address Miller’s
analysis. Accordingly, the court sustained the City’s assessment and entered
judgment in favor of the City. Veritas appeals. Additional facts are discussed below
as needed.
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DISCUSSION
I. Standard of Review and General Principles of Law
Governing Real Property Assessments
¶10 “Real property shall be valued by the assessor in the manner specified
in the Wisconsin property assessment manual … 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.” WIS. STAT. § 70.32(1).
¶11 Pursuant to WIS. STAT. § 70.49(2), a tax assessment challenged under
WIS. STAT. § 74.37 is given a presumption of correctness.5 Metropolitan Assocs. v.
City of Milwaukee, 2018 WI 4, ¶50, 379 Wis. 2d 141, 905 N.W.2d 784. However,
the presumption can be overcome if the challenging party establishes that the
assessment does not apply the principles set forth in the Manual or presents
“‘significant contrary evidence.’” Bonstores Realty One, LLC v. City of
Wauwatosa, 2013 WI App 131, ¶¶5, 9, 351 Wis. 2d 439, 839 N.W.2d 893 (quoted
source omitted). “Stated differently, when a city assessor correctly applies the
[Manual] and Wisconsin Statutes, and there is no significant evidence to the
contrary, courts will reject a party’s challenge to the assessment.” Allright Props.,
Inc. v. City of Milwaukee, 2009 WI App 46, ¶12, 317 Wis. 2d 228, 767 N.W.2d
567.
¶12 WISCONSIN STAT. § 70.32(1) “sets forth a hierarchical valuation
methodology for arriving at a property’s fair market value.” Lowe’s Home Ctrs.,
LLC v. City of Delavan, 2023 WI 8, ¶27, 405 Wis. 2d 616, 985 N.W.2d 69 (citing
5
WISCONSIN STAT. § 70.49(2) provides: “The value of all real 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.”
5
No. 2022AP507
State ex rel. Markarian v. City of Cudahy, 45 Wis. 2d 683, 685-86, 173 Wis. 2d
627 (1970)). This provision “lists three sources of information that inform tax
assessments.” Lowe’s, 405 Wis. 2d 616, ¶28. “The order in which these sources
are listed is indicative of the quality of information each source provides.” Id., ¶28.
“This methodology has been described as providing three ‘tiers’ of analysis.” Id.
¶13 A tier 1 analysis is an examination of a recent arm’s-length sale. Id.,
¶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.” Id.
¶14 If a tier 1 analysis cannot be conducted because “the property has not
been recently sold, then the appraiser moves to a tier 2 analysis.” Id. In a tier 2
analysis, the appraiser “examin[es] recent arm’s-length sales of reasonably
comparable properties (the ‘sales comparison’ approach).” Id.
¶15 When both tier 1 and tier 2 are unavailable, the assessor moves to a
tier 3 analysis. Id., ¶30. Under the tier 3 analysis, the assessor “may consider all
the factors collectively that have a bearing on the value of the property,” including
“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. The tier 3
framework includes, among other things, the “income approach, which seeks to
capture the amount of income the property will generate over its useful life, and the
cost approach, which 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.
6
No. 2022AP507
¶16 Here, Veritas brought an excessive assessment claim against the City
pursuant to WIS. STAT. § 74.37(3)(d). “The question on appeal in a WIS. STAT.
§ 74.37 action is not whether the initial assessment was incorrect, but whether it was
excessive.” Metropolitan Assocs. 379 Wis. 2d 141, ¶40. “An action filed pursuant
to § 74.37 seeks a trial before the circuit court, and is distinct from a certiorari
action.” Lowe’s, 405 Wis. 2d 616, ¶23. In contrast to a certiorari action, an
excessive assessment action under § 74.37 “is not confined to the record before the
board and new evidence may be presented.” Id., ¶23 n.11. Thus, “we review the
circuit court’s determination, not that of the assessor or Board of Review.” Id., ¶23.
¶17 Veritas’s excessive assessment claim is premised on its argument that
the City’s assessment did not comply with the Manual and therefore lost the
presumption of correctness. “[W]e independently review whether a valuation
complied with the statutes and the Wisconsin Property Assessment Manual.”
Bonstores, 351 Wis. 2d 439, ¶6. However, we defer to the circuit court’s findings
of fact and “will not upset the court’s factual findings, including findings involving
the credibility of witnesses, unless they are clearly erroneous.” Id. “In particular,
it is within the province of the factfinder to determine the weight and credibility of
expert witnesses’ opinions.” Id.7
No. 2022AP507
II. The Appraisals
¶18 As stated, West conducted an appraisal of the Property that formed
the basis of the City’s assessment of $17,780,000.6 The explanation of his analysis
that follows is not disputed.
¶19 West’s appraisal incorporated the three-tier hierarchical valuation
methodology described above. West did not conduct a tier 1 analysis because there
was no recent arm’s-length sale of the Property.
¶20 West attempted to conduct a tier 2 sales comparison using sales of
three properties that are similar to the Veritas Property, but ultimately determined
that the other properties were not sufficiently comparable to the Veritas Property for
purposes of a tier 2 analysis. West selected these three properties because they had
a similar use and were in a similar location or market to the Veritas Property. Then,
in analyzing these other sales, West made adjustments to account for differences
between these properties and the Veritas Property, and assigned a particular weight
to each of the resulting figures. Due to the number of adjustments that he was
required to make to account for the differences between these properties and the
Veritas Property, West determined that the tier 2 sales comparison analysis was not
appropriate.
6
West initially valued the Property at $25,390,000, but then revised the value during the
“open book period” to $19,570,000 in May 2018. After Veritas filed an objection to the assessment,
West completed an objection report for the Property, recommending the revised assessment of
$17,780,000. This objection report is referred to in this opinion as West’s “appraisal” and, as stated,
forms the basis of the City’s assessment. The City notes that West made these changes to his
appraised value based on additional information Veritas submitted to the City. Veritas does not
dispute this representation.
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No. 2022AP507
¶21 Accordingly, West converted the data from the three recent sales into
a tier 3 sales approach that compares the subject property to “like” or “similar”
properties rather than to “reasonably comparable” properties. This tier 3 sales
approach will be referred to in this opinion as the “sales approach” to distinguish it
from the tier 2 sales comparison analysis. Under the tier 3 sales approach, West
arrived at a value of $17,781,000 and assigned this sales approach value a 20%
weight in his tier 3 “reconciliation” to reach his recommended assessed value.7
¶22 Also under tier 3, West conducted a cost approach analysis and three
separate income approach analyses. See Wisconsin Property Assessment Manual,
13-15 (describing cost and income approaches). West did not place any weight on
his cost approach analysis. In the three income approach analyses, West estimated
expenses based on an average of actual operating expenses for newer apartment
complexes built in Madison in 2014-15. Those expenses are not at issue in this
appeal. West also applied capitalization rates that are likewise not at issue in this
appeal.
¶23 In his first income approach analysis, West averaged the 72% actual
vacancy rate as of January 1, 2018, with the 5% market vacancy rate (38.5%) and
rounded the result up to 40%. This first income approach resulted in a valuation of
approximately $17,520,000. West assigned this valuation a 40% weight in his
reconciliation. West’s second income approach analysis used a 5% vacancy rate
and resulted in a valuation of approximately $18,040,000. West also assigned this
7
“Reconciliation” is defined in the Manual’s glossary as “[t]he process by which the
appraiser evaluates, chooses and selects from among two or more alternative conclusions or
indications to reach a final value estimate.” Wisconsin Property Assessment Manual, G-44; see
also id., 9-22 (reconciliation is “the process of evaluating and selecting from the alternative
approaches to value”). “The final value estimate may be the value estimate derived from one of
the approaches or may be a careful reconciliation of the applicable approaches.” Id. at 9-23.
9
No. 2022AP507
valuation 40% weight in his reconciliation. In his third income analysis, West again
used a 5% vacancy rate but changed the capitalization rate and arrived at a valuation
of approximately $29,300,000; however, he did not give this valuation any weight.
In reconciling his tier 3 approaches, including the tier 3 sales approach referenced
above, West arrived at an appraised value of $17,780,000 for the Property.
¶24 In contrast, Landretti’s appraisal valued the Property at $6,800,000,
using a 72% vacancy rate, which was the vacancy rate on January 1, 2018.8 Like
West, Landretti determined that a tier 3 income approach was most appropriate.
Unlike West, Landretti relied exclusively on the income approach for his
assessment, whereas West determined that 20% weight should be assigned to the
sales approach. However, the primary reason for the difference in value between
the West and Landretti analyses is that West used a substantially lower vacancy rate
than Landretti, accounting for anticipated future leases.
¶25 The Manual contains a multi-step formula for determining value for
commercial properties under the income approach. Wisconsin Property Assessment
Manual, 13-16. It is not disputed that the two main appraisals at issue, West’s and
Landretti’s, used this formula and that the primary difference between the two
appraisals involves the step in which an appraiser is to “[d]educt for vacancy and
collection loss.” Wisconsin Property Assessment Manual, 13-16. As Veritas
acknowledges, “the only difference between West and Landretti’s income approach
8
At the trial held in this matter, Landretti changed his appraised value to $8,500,000 after
being provided information that eight additional leases had been signed for units that were not yet
occupied as of January 1, 2018. According to Landretti, this changed the vacancy rate from 72%
to 68%. The parties generally rely on the 72% figure in their briefs and this opinion follows their
lead.
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No. 2022AP507
analyses was that West used projected vacancy rates [in this step], whereas Landretti
used [the Property’s] undisputed 72% vacancy rate.”
III. Veritas’s Arguments
¶26 On appeal, Veritas argues that the City’s assessment is not entitled to
the presumption of correctness because West did not comply with the Manual in
several respects. As a result, Veritas argues that Landretti’s appraisal should be
credited instead of West’s. Before addressing these arguments, we first emphasize
the following two undisputed points.
¶27 First, the appraisers all agreed that a tier 3 income approach is the
most appropriate method for assessing the Property.9 See Walgreen Co. v. City of
Madison, 2008 WI 80, ¶24, 311 Wis. 2d 158, 752 N.W.2d 687 (“The [Manual]
explains that in leased property scenarios, the income approach is often the most
reliable approach for property valuation, describing the income approach as
estimating and then capitalizing the net rent a property subject could generate.”).
¶28 Second, the parties agree that the overarching issue in this case is how
to account for vacancy under the income approach for a brand new building that is
in the process of lease-up. Veritas argues that the vacancy rate should be 72%,
reflecting the vacancies that existed on January 1, 2018, whereas the City argues
that the vacancy rate should take into account a projection of leases that are
reasonably anticipated to be signed after that date.
9
As previously explained, West also used a sales approach; however, he assigned the sales
approach value only a 20% weight in his reconciliation under his tier 3 analysis.
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No. 2022AP507
¶29 With those points in mind, we now address Veritas’s specific
arguments.
A. Presumption of Correctness—the City’s Assessment
¶30 Veritas argues that the City’s assessment lost its presumption of
correctness because, according to Veritas, West failed to follow the principles set
forth in the Manual in the following four ways: (1) West considered anticipated
future leases in “direct contravention” to the Manual’s principle of “change”;
(2) West used a projected vacancy rate as opposed to the Property’s actual vacancy
rate; (3) West “mixed and matched” the economically independent methodologies
in conducting his reconciliation; and (4) West was “unable to support or explain any
of his opinions beyond assurances that he was simply exercising his ‘judgment.’”10
We address these arguments in turn.
1. The Manual’s Principle of Change
¶31 Veritas argues that, by considering anticipated future leases, West’s
appraisal failed to comply with the Manual’s principle of change. This principle is
one of several “valuation principles” identified in the Manual that form “the basis
of the techniques used by the assessor to arrive at the market value of a given
property.” Wisconsin Property Assessment Manual, 9-10. The principle of change
is described in the Manual as follows:
10
Veritas also asserts at various points in its brief that it is “undisputed that there was no
market for [the Property] on January 1, 2018.” The City adamantly disputes this point. Because
Veritas does not develop an argument based on this assertion in any way as a separate basis for
challenging the assessment as excessive, we do not address it. See State v. Pettit, 171 Wis. 2d 627,
646, 492 N.W.2d 633 (Ct. App. 1992).
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No. 2022AP507
Change
The factors that affect market value are constantly
changing. Not only are economic, social and government
forces constantly changing, but the property itself is subject
to change. Because change is constant, every opinion of
value is meaningful only in the context of the date to which
i[t] applies. In Wisconsin, assessment values are always as
of January 1. Any changes to the property, economy, or any
other financial factors affecting value that occur after that
date, are not considered until the following assessment cycle.
Wisconsin Property Assessment Manual, 9-13.
¶32 Veritas argues that, under this principle, leases signed after January 1,
2018, are “other financial factors affecting value” that cannot be considered in the
valuation of the Property. In support of this contention, Veritas notes that all three
appraisers (West, Miller, and Landretti), when asked by Veritas’s counsel whether
such future leases were “other financial factors affecting value,” generally testified
that they were. Because the City’s assessment was based on West’s appraisal, and
it is this assessment that Veritas argues violated the Manual, we examine only
West’s testimony on this point. West testified as follows:
Q. Now, you told me that brand-new leases, not ones
that are occupied or not ones that are signed but not yet
moved in, brand-new leases through 2018, after January 1,
2018 would be other financial factors affecting the value.
A. Because they’re after January 1st?
Q. Yes. Is that correct?
A. Correct.
Q. So those new leases that have not either been
occupied as of January 1, 2018 or have not at least been
signed as of January 1, 2018 would be other financial factors
affecting value and fall under the principle of change.
A. That’s one definition of it, yeah.
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No. 2022AP507
Notably, during this exchange, West did not testify that such future leases constitute
“financial factors affecting value that occur after [January 1],” as set forth in the
principle of change quoted above. In fact, during subsequent testimony, West made
clear that he did not view the future leases as a factor affecting value that “occur[s]
after that date” so as to be barred from consideration by the principle of change.
¶33 Specifically, the City’s counsel asked West to explain how the
principle of change works in conjunction with another valuation principle,
“anticipation,” which is described in the Manual as follows:
Anticipation
One definition of value is the present worth of
anticipated future benefits. These future benefits can be the
amenities of home ownership, the receipt of an income, a
place to run a business, or any other benefits that may be
projected. It is the conversion of anticipated future benefits
into a present value that is the basis of the valuation of
property in the income approach.
Wisconsin Property Assessment Manual, 9-12 to 9-13. In response, West testified:
A. Well, principle [of] anticipation, that’s the whole
foundation of the income approach, present worth of future
anticipated benefits. So that’s why you calculate a potential
income for the property regardless of whether it was
70-percent vacant or not.
You have to come up with a potential, if it was fully
leased, and then you can apply a vacancy rate market or in
this case I applied additional [vacancy] to take into
consideration it wasn’t stabilized.
… I didn’t value anything that occurred after
January 1st, in my opinion. I valued what was there as of
January 1st, which was a brand-new 189-unit apartment
complex.
(Emphasis added.) Thus, West expressed the view that, in taking the anticipated
future leases into account in his appraisal, he “didn’t value anything that occurred
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No. 2022AP507
after January 1st,” 2018. Instead, consistent with the change principle as reconciled
with the anticipation principle, West valued the anticipated future leases as part of
the current value of the Property.
¶34 Indeed, Veritas’s interpretation of the change principle would nullify
the anticipation principle. The anticipation principle expressly allows for
consideration of benefits that are “anticipated,” “future,” and “projected,”
particularly when using the income approach for valuing property, which is the
primary approach that West used. As stated above, under the anticipation principle,
“value” is defined as “the present worth of anticipated future benefits.” As also
previously noted, the anticipation principle explicitly states that such “future
benefits” can be “the receipt of an income, a place to run a business, or any other
benefits that may be projected.” (Emphasis added.) It also expressly states that “[i]t
is the conversion of anticipated future benefits into a present value that is the basis
of the valuation of property in the income approach.”
¶35 Thus, if the principle of anticipation is to be given any effect, Veritas’s
interpretation of the principle of change cannot stand. Instead, these anticipated
leases are financial factors affecting the current value of the property and, consistent
with both principles, are properly considered. The reasonable anticipation of
additional leases occurring in the lease-up period is a factor that was applicable on
January 1, 2018, even if the leases themselves are not signed until after that date.
¶36 Other directives in the Manual likewise support the conclusion that
reasonably anticipated future leases are properly considered in assessing value
under the income approach. For example, the Manual states that the process under
the income approach consists of “converting anticipated future benefits (income)
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No. 2022AP507
into an estimate of the present worth of the property.” Wisconsin Property
Assessment Manual, 13-15. The Manual also states:
The income approach to value is based on the
principle of anticipation. It is the calculation of present
value based on anticipated future benefits. Typically these
benefits are in terms of rents and other income that the
property may produce either directly or indirectly. These are
compared to the typical rents and expenses of similar
property types in developing an opinion of value. The
income approach relies on estimating the net rent that the
subject property could generate, then capitalizing the rent by
an appropriate rate.
Wisconsin Property Assessment Manual, 9-22 (italics added). Thus, it can hardly
be clearer under the explicit language of the Manual that anticipated leases are
properly considered in determining the present value of the Property.
¶37 The Manual further states that the income approach represents “the
way investors think when they buy and sell income property in the market.”
Wisconsin Property Assessment Manual, 13-15. It is unreasonable to conclude that
a seller would agree to a price based on the actual vacancy rate on January 1, 2018,
if the seller reasonably expects the vacancy rate to decrease in the coming months.
Thus, Veritas’s interpretation of the principle of change fails to take into account
the goal of an appraisal, which is to determine how much the Property would sell
for in a private arm’s-length sale. See WIS. STAT. § 70.32(1) (“Real property shall
be valued by the assessor … 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.”); Doneff v. City of Two Rivers Bd. of Rev., 184 Wis. 2d
203, 213-14, 516 N.W.2d 383 (1994) (“[F]ull value” as used in § 70.32(1) means
“‘the amount [the property] will sell for upon arm’s-length negotiation in the open
16
No. 2022AP507
market, between an owner willing but not obliged to sell, and a buyer willing but
not obliged to buy.’” (quoted source omitted)).
¶38 Faced with the Manual’s language supporting West’s analysis, Veritas
suggests in its reply that the way to harmonize the principle of change with the
principle of anticipation is to disallow consideration of future leases that do not yet
exist but to allow consideration of signed leases for not-yet-occupied units. Veritas
states: “[T]he doctrine of anticipation allows appraisers to consider the ‘future
benefit’ of signed leases. The doctrine of change prevents appraisers from
attempting to consider the ‘future benefit’ of future leases that do not yet exist.”
This is so, according to Veritas, because “appraisers cannot reasonably project or
anticipate the value of unsigned leases.” Veritas cites no authority for the
proposition that an assessor cannot reasonably estimate the value of unsigned leases,
and its argument that only signed leases may be considered is unpersuasive, given
the language of the Manual quoted above.
¶39 Accordingly, we reject Veritas’s argument that, by considering
anticipated future leases in valuing the Property, the City’s assessment violated the
Manual’s principle of change.
2. Projected Vacancy Rate vs. Actual Vacancy Rate
¶40 Veritas argues that West improperly relied on a projected vacancy rate
as opposed to the Property’s much higher actual vacancy rate of 72%. Veritas
contends that this was contrary to the Manual and to case law concluding that actual
data is superior to projected data. Veritas neither refers to nor cites any part of the
Manual in support of this argument, and, therefore, we do not consider its argument
on this topic as it relates to the Manual. See State v. Pettit, 171 Wis. 2d 627, 646,
492 N.W.2d 633 (Ct. App. 1992) (we need not address undeveloped arguments).
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No. 2022AP507
We now explain why we reject Veritas’s argument that, by not using a vacancy rate
of 72%, the City’s assessment was contrary to case law addressing the use of actual,
rather than projected, data.
¶41 Veritas relies primarily on Metropolitan Holding Co. v. Board of
Review, 173 Wis. 2d 626, 495 N.W.2d 314 (1993).11 In that case, Metropolitan built
a housing complex. Id. at 628. In return for federal financing through the federal
Department of Housing and Urban Development (HUD), the actual rent that
Metropolitan received was restricted in several ways. Id. For example, HUD
controlled the maximum amount of rent that Metropolitan could charge and it
limited the amount that Metropolitan could retain after expenses, with any excess
profits reverting to HUD. Id. at 629. At issue was “the proper annual income figure
to be used when assessing a subsidized housing project under the capitalization of
income approach.” Id. at 628. The City of Milwaukee argued that annual income
should be based on estimated market rents and expenses, whereas Metropolitan
argued that annual income should be based on its actual income and expenses. Id.¶42 Our supreme court concluded that the use of estimated market rents
violated WIS. STAT. § 70.32 because a valuation based on estimated market rents
exceeded the fair market value of Metropolitan’s property. Id. at 631. The court
reasoned that the property was “hindered by the HUD restrictions and it is
undisputed that the HUD restrictions precluded Metropolitan from charging market
11
In a part of its brief other than the “Argument” section, Veritas cites other cases in
support of its assertion that West was required to use the “actual data” of a 72% vacancy rate rather
than estimated data. Specifically, Veritas cites Rosen v. Milwaukee, 72 Wis. 2d 653, 242 N.W.2d
681 (1976); State ex rel. Garton Toy Co. v. Mosel, 32 Wis. 2d 253, 145 N.W.2d 129 (1966); State
ex rel. Park Plaza Shopping Center, Inc. v. Board of Review, 61 Wis. 2d 469, 213 N.W.2d 27(1973); Fontana v. Village of Fontana-on-Geneva Lake, 107 Wis. 2d 226, 319 N.W.2d 900 (Ct.
App. 1982). To the extent Veritas means to incorporate these cases into its argument, they do not
assist Veritas because they do not involve vacancies in a newly constructed apartment complex in
the process of lease-up.
18
No. 2022AP507
rents.” Id. The court stated that the city assessor “essentially pretended that [the
plaintiff] was not hindered by the HUD restrictions and valued the property at the
amount the property would bring in an arm’s-length transaction if Metropolitan
were able to charge market rents.” Id.¶43 Metropolitan is inapplicable here because no such encumbrances
affect the Property. Veritas asserts that the Property was “encumbered” by the 72%
vacancy rate. However, this vacancy rate of a newly built, luxury property during
the lease-up period is not remotely similar to encumbrances like the HUD
restrictions in Metropolitan.12 The HUD restrictions constituted a federally
imposed encumbrance on Metropolitan’s ability to charge market rents, whereas
here, the vacancy rate of the Property is reasonably anticipated to decrease
throughout the lease-up period.
¶44 Further, West’s analysis is consistent with the Metropolitan court’s
directive that the assessment reflect market value. As set forth above, the Manual
directs how to determine the market value under the income approach, namely, by
“converting anticipated future benefits (income) into an estimate of the present
worth of the property.” As stated differently above, the market value “is the
calculation of present value based on anticipated future benefits,” which are
“[t]ypically … rents and other income that the property may produce.” This is
consistent with West’s testimony that he did not run an income approach with the
72% vacancy rate because, in his professional judgment, it “would [not] reflect the
12
Veritas also asserts that West “ignore[d]” actual data, namely, the 72% vacancy rate.
The record does not support this assertion. As set forth above, in his first income approach analysis,
West averaged the 72% actual vacancy rate with the 5% market vacancy rate and rounded the result
to a 40% vacancy rate. This first income approach resulted in a valuation of approximately
$17,500,000 and West assigned this valuation 40% weight in his reconciliation under the tier 3
analysis.
19
No. 2022AP507
market value of the property as of January 1, 2018.” West’s analysis is not only
consistent with Metropolitan, but with other case law that rejects a requirement that
actual data be used when such data does not reflect market value. See, e.g.,
Walgreen, 311 Wis. 2d 158, ¶¶36-53 (where taxpayer negotiated above-market
rents, market rents rather than actual rents are appropriate in assessing valuation
under income approach).
¶45 West’s analysis is also consistent with the Manual’s directive on how
to incorporate vacancy rates under the income approach:
Rental properties are rarely fully occupied during
their rental life; therefore, a deduction should be made from
the potential gross income to compensate for lost income due
to vacancies. This vacancy allowance can be determined by
an analysis of the vacancy factors of other comparable
properties and the recent vacancy history of the subject
property. Care should be taken to make sure the noted
vacancies are from stabilized projects....
Wisconsin Property Assessment Manual, 13-18 (emphasis added).
¶46 For all of these reasons, we reject Veritas’s argument that West was
required to rely solely on the actual vacancy rate as of January 1, 2018, in his
appraisal of the Property.
3. “Mixing and Matching”
¶47 Veritas next argues that West failed to follow the Manual by “mixing
and matching economically independent methodologies in ‘reconciliation.’”
Veritas relies on the following passage in the Manual:
Reconciliation is the process by which the appraiser
evaluates and selects from the alternative approaches to
value. Keep in mind that the three approaches to value are
designed to be economically “independent.” That is, the
foundation for each reflects independent method and data.
20
No. 2022AP507
For the sales comparison approach, it’s sales data. For the
cost approach, it’s cost of construction material, cost of
labor, soft costs, and depreciation data. For the income
approach, it’s rental and financial data.
Assessors may consider all three approaches when
estimating the value of a property. However, all three
approaches may not be used as the basis for an assessment
because of case law[.] [Citing Markarian, 45 Wis. 2d at
686.]
Wisconsin Property Assessment Manual, 13-41. According to Veritas, West’s
reconciliation, in which he applied a weighted average of his tier 3 approaches, was
in “direct contravention” of this language from the Manual stating that an appraiser
“evaluates and selects from the alternative approaches” but that “all three
approaches may not be used as the basis for an assessment because of case law.”13
We reject Veritas’s arguments for the following reasons.
¶48 First, it is clear from this excerpt of the Manual that the economic
independence of the approaches refers to the independence of their data: i.e., “[f]or
the sales comparison approach, it’s sales data. For the cost approach, it’s cost of
construction material, cost of labor, soft costs, and depreciation data. For the
income approach, it’s rental and financial data.” Veritas points to nothing in the
record showing that West’s appraisal mixed these data in his analyses under the
income and sales approaches that formed the basis of his appraisal.
13
Veritas asserts that “West’s appraisal is a mix of five different ‘economically
independent’ approaches to value.” We assume that Veritas is referring to the five analyses that
West conducted under tier 3: analyses under a sales approach, a cost approach, and three income
approaches. However, the record does not support Veritas’s assertion that there were five
approaches that formed “the basis for [the] assessment” as contemplated by the passage from the
Manual quoted above. Instead, the record is clear that only three of the analyses were given any
weight—two analyses under the income approach that yielded respective values of $17,520,000
and $18,040,000, to which West assigned a weight of 40% each; and one analysis under the sales
approach that yielded a value of $17,781,000, to which West assigned a weight of 20%. The other
two (under a cost approach and a third income approach) were given no weight and thus did not
form any part of the “basis for [the] assessment,” as contemplated by the language of the Manual.
21
No. 2022AP507
¶49 As to the last sentence of the excerpt from the Manual quoted above
that “all three approaches may not be used as the basis for an assessment because of
case law,” we note that the case law cited for that proposition is Markarian, which,
as set forth above, establishes the three-tier hierarchy for valuing property. As
previously explained, under the Markarian hierarchy, an assessor must use tier 1
(an arm’s-length sale of the subject property) if there has been such a sale; may only
use tier 2 (sales of reasonable comparable properties) if there is no recent
arm’s-length sale of the subject property, and may only use a tier 3 analysis
(including the cost and income approaches) if there is no arm’s-length sale of the
subject property or sufficient data from sales of comparable properties. See
Markarian, 45 Wis. 2d at 686; see also Adams, 294 Wis. 2d 441, ¶34. At no point
does Markarian prohibit the use of multiple approaches within a single tier, tier 3,
as occurred here. Thus, we construe the last sentence to refer to the use of
Markarian’s three tiers and not to the use of multiple approaches within tier 3, such
as the income, cost, and sales approaches used here.
¶50 Indeed, as we now explain, a prohibition on the use of multiple
approaches within tier 3 would violate the express provisions of the Manual and
would contradict case law.
¶51 As to the Manual, in addition to the excerpt above stating that
“[a]ssessors may consider all three approaches [sales, cost, and income] when
estimating the value of a property,” the Manual further provides:
The appraiser should consider all three approaches
when estimating the value of a property….
….
… Usually more than one—and often all three—of
the approaches apply to a given property. The only limiting
22
No. 2022AP507
factor: whether available and appropriate data exists to
develop any and all approaches.
… Generally, the greatest weight should be placed
on the approach for which the greatest amount of reliable and
appropriate data is available that will yield the highest
degree of confidence.
The final value estimate may be the value estimate
derived from one of the approaches or may be a careful
reconciliation of the applicable approaches.
Wisconsin Property Assessment Manual, 9-23 (emphasis added). This language
allows an appraisal to rely on more than one approach in conducting a tier 3 analysis
and to ascribe weight to the various approaches.
¶52 Not only is it permissible under the Manual to rely on more than one
approach in a tier 3 analysis but, as our supreme court held in Adams, it is sometimes
required. See Adams, 294 Wis. 2d 441, ¶¶48-56. In Adams, the court concluded
that the City’s assessor erred in relying on only the income approach for his tier 3
analysis rather than relying on both the income and cost approaches. See id., ¶56.
The court based this conclusion, in part, on language from the Manual quoted
directly above. Id., ¶¶52-53. The court also relied on the Manual’s requirement
that, when there is sufficient data to estimate market value under both the income
and cost approaches, assessors should determine a final estimate of value through
the process of reconciliation. Id. at ¶54. The court described reconciliation as
follows: “Reconciliation requires an assessor to evaluate the data available under
the alternative approaches and decide whether to derive the value from one of the
approaches or a combination of approaches.” Id. (emphasis added). The court also
relied on precedent concluding that “an assessment cannot be based solely on the
income approach.” Id. at ¶¶48, 50-51.
23
No. 2022AP507
¶53 Thus, both the Manual and case law expressly permit what West did
here: deriving an estimate of the Property’s value by ascribing 40% weight to each
of the two income approaches, and 20% weight to the sales approach during the
reconciliation process. Accordingly, Veritas has not shown that West’s appraisal
failed to comply with the Manual by an impermissible “mixing and matching.”
4. Exercise of Judgment
¶54 Veritas asserts that West failed to apply the Manual’s principles “by
being pervasively unable to support or explain any of his opinions beyond
assurances that he was simply exercising his ‘judgment.’” As a preliminary matter,
we observe that the examples provided are far from “pervasive[].” More
importantly, however, Veritas has failed to demonstrate that West impermissibly
relied on his judgment in making adjustments to the data used in his approaches to
value.
¶55 Veritas first relies on an approach that West considered but did not
end up relying on in his final valuation. For example, Veritas refers to statements
West made in describing a cost approach he examined but ultimately did not place
any weight on. Because the cost approach was not used in West’s appraisal and
Veritas makes no argument that it should have been, we do not consider any asserted
errors in West’s examination of the cost approach.
¶56 Veritas also refers to a 30% vacancy rate that West applied in a second
appraisal prior to the Board of Review hearing but which played no role in West’s
final appraisal. As Veritas itself acknowledges in its reply brief, West’s final
appraisal “is the only valuation subject to appeal.” Thus, as the City points out, any
criticisms of the appraisals conducted prior to the Board of Review hearing are not
germane to this appeal.
24
No. 2022AP507
¶57 As to the appraisal that is the subject of this appeal, Veritas argues
that West’s assignment of 20% weight to the sales approach and 40% to each of the
two income approaches was based solely on his “judgment.” However, the record
cite Veritas provides does not support that assertion. Veritas further suggests that
West’s assignment of 20% weight to the sales approach must be based solely on
“judgment,” given West’s testimony that he “lacked reasonable confidence” in that
approach. This statement is taken out of context. West was asked by counsel for
Veritas, “Why 20 percent to the sales approach?” and West responded, “Again, I
went back to what I stated earlier, after applying, making adjustments that I did, I
did not have reasonable confidence in that. So I gave more weight to the income
approach.” In context, it is clear that in making that statement, West is comparing
his lower level of confidence in the sales approach to his higher level of confidence
in the income approach.
¶58 Veritas also notes that when West was asked about why he applied a
15% vacancy deduction to the Property in comparing it to the three other properties
under the sales approach, West ultimately responded that it was based on his
“judgment.” But the Manual expressly allows appraisers to make adjustments for
economic factors reflecting the differences between the subject and comparable (or
similar) properties in a sales approach. See Wisconsin Property Assessment Manual,
13-12 to 13-13. And, as West further explained during his testimony, the Manual
does not provide specific numerical adjustments that are required to be made during
this process and an appraiser must rely on other information and on the appraiser’s
own training, experience, and professional judgment.
¶59 For example, regarding the sales approach, West testified that neither
the Manual, statutes, nor case law instruct appraisers on how to specifically make a
25
No. 2022AP507
quantitative adjustment to a sales comparison. When asked how he would compare
a brand-new, unstabilized apartment complex to a similarly situated stabilized
apartment complex, West testified that he would conduct “research in the market
and make appropriate adjustments to account for the fact that the subject was not
stabilized.” His adjustment percentages are based on studying the market and
relevant professional publications, interviewing buyers and sellers, analyzing the
data, and coming up with “reasonable” adjustments. He further testified that his
adjustments and judgment are based on his “knowledge and experience of analyzing
the Madison real estate market for 14-plus years.” West also testified as to his
training on how to make adjustments, such as courses he has taken from the
International Association of Assessing Officers.
¶60 As to any assumptions West makes when applying the various
approaches, West testified that such assumptions are based on his “knowledge of
the market,” including from “field[ing] sales” and routinely reviewing professional
publications addressing commercial property, reviewing building permit
information, and talking to brokers and financial institutions. He testified that it is
“a year-round cycle of reviewing market data because we do mass appraisals, so we
have to review the most current data we have so that we can apply it to our annual
assessments.”
¶61 Veritas points to nothing in the Manual that says that an appraiser may
not base adjustments or other determinations on professional judgment when neither
the Manual nor statutory or case law provide specific instructions on how to make
a particular adjustment or determination. As West explained, professional judgment
is not the same as a guess and it is in fact his job to have “an opinion based on facts.”
26
No. 2022AP507
¶62 We agree that exercising professional judgment is an inherent part of
an appraiser’s job. Veritas’s arguments that West improperly did so are unsupported
and unpersuasive. This is particularly so in light of the testimony summarized above
and the circuit court’s findings regarding the credibility and weight of the evidence.
After a five-day trial, the court explicitly found that the City’s assessment and
West’s conclusions on which the assessment was based were more “reliable,
credible, and persuasive than those offered by Veritas.” We defer to the court’s
findings of fact and “will not upset the court’s factual findings, including findings
involving the credibility of witnesses, unless they are clearly erroneous.” See
Bonstores, 351 Wis. 2d 439, ¶6. Although this court may determine whether an
appraiser complied with the Manual and other legal requirements, “it is within the
province of the factfinder to determine the weight and credibility of expert
witnesses’ opinions.” Id. And, as set forth above, Veritas has not demonstrated
legal error.14
B. Veritas’s Remaining Arguments
¶63 Veritas argues that, in the absence of the presumption of correctness,
this court should credit Landretti’s appraisal over West’s because, according to
14
In its brief-in-chief, Veritas also briefly asserts in a footnote that West’s rounding one
of his calculations of the vacancy rate in the income approach from 38.5% to 40% was “arbitrary.”
In support, Veritas relies on this court’s decision in ABKA Limited Partnership v. Board of
Review, 224 Wis. 2d 551, 591 N.W.2d 879 (Ct. App. 1999), aff’d, 231 Wis. 2d 328, 603 N.W.2d
217 (1999). We initially note that this case was subsequently taken up by our supreme court, which
affirmed our decision. Assuming we may nevertheless rely on our decision in ABKA, it does not
assist Veritas. In ABKA, we concluded that the municipality erred in rounding the actual assessed
value up by 2%. Id. at 569-70. We did not conclude that an assessor is prohibited from rounding
a number that is used to arrive at the ultimate assessment, such as the vacancy rate in this case.
Moreover, Veritas fails to show why such rounding would assist Veritas in its excessive assessment
claim, given that this rounding inures to Veritas’s benefit by applying a greater vacancy rate,
thereby resulting in a lower assessment.
27
No. 2022AP507
Veritas, Landretti followed the Manual by using the actual vacancy rate of the
Property.
¶64 The primary problem with Veritas’s argument is that it assumes we
agree with Veritas that the presumption of correctness does not apply. However,
we have decided to the contrary. 15 Veritas makes no argument that we may credit
Landretti’s appraisal over West’s where the presumption remains in effect. Thus,
given our conclusion that the presumption applies, we may reject as undeveloped
any argument Veritas may mean to make that we should credit Landretti’s appraisal
over West’s. See Pettit, 171 Wis. 2d at 646.
¶65 Even assuming, however, that Veritas has offered a developed
argument that we should “credit Dominic Landretti’s appraisal, and hold that [the
Property’s] 2018 taxable value was $8,500,000,”16 its argument fails because it
depends on legal challenges that we have rejected in our preceding discussion.
These challenges are based on a single premise—that West erred in not using the
72% (or 68%) vacancy rate that Landretti used—a premise that we have also
15
Notably, Veritas did not argue in the circuit court and does not argue in this court that it
presented “significant contrary evidence” so as to rebut the presumption of correctness. See
Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI App 131, ¶¶5, 9, 351 Wis. 2d 439,
839 N.W.2d 893 (presumption of correctness may be overcome if assessment does not comply with
Manual or if “significant contrary evidence” is presented). In fact, Veritas specifically disavows
such an argument, stating that the significant contrary evidence standard is “inapplicable” in this
case and that “[h]ere, Veritas never argued under the ‘significant contrary evidence standard’ and
instead established that West failed to follow [the Manual’s] principles in numerous manners.”
16
This $8,500,000 amount reflects Landretti’s revised valuation at trial that uses a 68%
vacancy rate, taking into account an additional eight signed leases for units that were still vacant as
of January 1, 2018. As previously explained, Landretti’s original valuation was $6,800,000,
compared to the City’s assessment of $17,780,000.
28
No. 2022AP507
rejected. Because Veritas presents no other basis for us to conclude that the City’s
assessment was excessive, we affirm the circuit court.17
CONCLUSION
¶66 For the reasons stated, Veritas has failed to show that the City’s 2018
assessment of the Property was excessive within the meaning of WIS. STAT. § 74.37.
Accordingly, we affirm the judgment of the circuit court.
By the Court.—Judgment affirmed.
17
For the same reasons, we also reject Veritas’s argument that “the City and [circuit] court
erred by rejecting [the Manual’s] mandated results based upon preconceived notions of the
[Property’s] value.”
29