Wisconsin Municipalities May Not Appeal a Board of Review’s Reduction of Property Tax Assessment

Foley & Lardner LLP

Foley & Lardner LLPThe old adage tells us that you can’t fight city hall, but a recent decision from Wisconsin’s court of appeals, which handed a victory to property taxpayers who received a favorable decision from a board of review, teaches that sometimes city hall can’t fight back.

In State ex rel. City of Waukesha v. City of Waukesha Board of Review, No. 2019AP1479 (Nov. 18, 2020), a decision from District II written by Chief Judge Lisa Neubauer and joined by Judges Mark Gundrum and Jeff Davis, the court of appeals held that the City of Waukesha had no right to seek certiorari review of a decision by its own Board of Review to reduce the municipal assessor’s valuation of real property. 

In 2017, the City of Waukesha assessed a parcel owned by Salem United Methodist Church at $51,900, but the City raised that assessment to $642,200 in 2018 due to the church’s having received and accepted an offer to sell the parcel for approximately $1 million. The church filed an objection, and the Board of Review largely accepted the church’s position, reducing the assessment to $108,700.

When the City subsequently petitioned the circuit court to issue a writ of certiorari under Wis. Stat. § 70.47(13), the Board moved to quash the writ, arguing that the statute does not allow a municipality to appeal a board of review’s determination. The Waukesha County Circuit Court rejected that argument, but the court of appeals reversed in a decision that carefully examined the statute’s text.

The court held that § 70.47(13) clearly authorizes an unhappy taxpayer to seek review in a circuit court, but it also held that the statute has no parallel provision allowing the aggrieved municipality to do so. The subsection provides:

[A]ppeal 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). . . .

Given that “the statutory provisions [i.e., subsections (12) and (13)] spell out very clearly that the Board must only ensure that the taxpayer receive[s] the Board’s decision and that the appeal time begins to run upon the taxpayer’s receipt[,]” the court held that “[i]t would be uncommon, oddly random, and potentially vague for the legislature … to leave a party that allegedly has a right to appeal (e.g., the City) to learn of that right by an unspecified, unexpressed, and indirect means.” Op. at ¶ 29.

The court did not think that the omission of a provision governing an appeal by the municipality was unintentional. It pointed out that the municipality has so much control over the assessment process and the board of review (including by appointing the board’s members) that it makes sense that the legislature would see no need to give the municipality a chance for judicial review of the occasional loss, thereby imposing additional burdens on the successful taxpayer. Op. at ¶¶ 30-40.

The court reversed and remanded with directions to quash the writ and to dismiss the City’s certiorari action.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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