State law does not grant a municipality the right to file a writ of certiorari challenging a board of review’s property tax assessment, the Wisconsin Supreme Court has ruled.
Dec 28, 2021 – State law does not grant a municipality the right to file a writ of certiorari challenging a board of review’s property tax assessment, the Wisconsin Supreme Court has ruled.
In City of Waukesha v. City of Waukesha Board of Review, 2019AP1479 (Dec. 22, 2021) the supreme court unanimously held that the statute that allows a party to file a writ of certiorari to challenge a property tax assessment grants that right only to taxpayers.
Listing Prompted Assessment Hike
In 2017, the City of Waukesha assessed a 23-acre property owned by the Salem United Methodist Church at $51,900.
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In 2018, the church listed two parcels on the property, totaling 8.77 acres, for sale, with an asking price of $1.4 million. After the church listed the parcels for sale, the city assessed the property at $642,200.
The church objected to the assessment, arguing that the city’s assessment was based on speculation and ignored the fact the land was undeveloped. The property should be assessed at $108,655, the church argued.
The city’s board of review held a hearing and accepted the church’s valuation.
The city appealed the board’s determination by filing a writ of certiorari with the circuit court, under Wis. Stat section 70.47(13). The board moved to quash the writ, arguing that under section 70.47(13) only taxpayers may file a writ of certiorari to appeal and board of review’s determination.
The circuit court denied the board’s motion and remanded the case to the board; the board appealed. The court of appeals reversed the circuit court.
Statutes Mention Taxpayer, Objector
In an opinion written by Justice Ann Walsh Bradley, the supreme court affirmed the court of appeals’ decision.
It did so by interpreting section 70.47(13), the relevant part of which reads: “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.”
Section 70.47(12), in turn, requires a board of review to personally deliver or mail the objector (return receipt required) a notice of the amount of the assessment and an explanation of appeal rights under 70.47(13). Section 70.47(12) also requires the board of review’s clerk to prepare an affidavit that lists the date when the notice was delivered or mailed.
When Rather Than Who?
The board argued that the city had no right to file a writ of certiorari because the trigger for filing a writ of certiorari under section 70.47(13) is the receipt of the notice by a taxpayer.
The city countered by arguing that the trigger for filing a writ of certiorari under section 70.47(13) deals with only when a party may file, not who may file.
That section 70.47(13) mentions a taxpayer and not a municipality is immaterial, the city argued, because if a municipality were to appeal a determination of the board of review it would know about the clerk’s affidavit required under section 70.47(12) and would use the date of that affidavit to calculate the deadline for seeking the writ.
Additionally, the city argued that because section 70.47(11) requires a “taxation district” be a party to all proceedings before a board of review, it had the right to seek certiorari review. If a municipality has a protectable interest before a board of review, the city argued, it maintains that interest after the board makes its determination.
Date Sent vs. Date Received
The supreme court agreed with the board’s interpretation of the relevant statutes.
“What is notable about subsec. (13) for our analysis is that it conditions the appeal deadline on when notice is received by the taxpayer,” wrote Justice Walsh Bradley. “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.”
Section 70.47(12), Justice A.W. Bradley wrote, mentions neither the city nor notice to the city. Additionally, the affidavit requirement mentions only the date the notice was mailed or delivered, not the date it was received. That fact undercut the city’s argument that section 70.47(13) deals only with when a party may seek certiorari review, not which party may seek review.
“The date a notice is mailed is most likely not the same as the date the notice is received,” Justice A.W.Bradley wrote.
“The City could guess as to what it’s 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.”
No Deadline, No Right
The lack of any requirement that the board’s clerk provide the city with a copy of the affidavit also cut against the city’s argument.
“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,” Justice A.W. Bradley wrote.
That section 70.47(13) doesn’t provide the City with a deadline for seeking certiorari review of the board’s determination means the city has no right to seek such review.
“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,” Justice A.W. Bradley wrote.
Precedent, Legislative History
Precedent and legislative history support that conclusion, Justice A.W. Bradley explained.
The court had previously described chapters 70 and 74 as creating a method for taxpayers to appeal board of review determinations.
And a fiscal estimate prepared by the Wisconsin Department of Revenue in conjunction with the bill that created the current version of section 70.47(13) described the bill as intending to “’clarify the intended meaning of the 90-day period during which a property owner may appeal a board of review decision.’”
That section 70.47(11) grants the city an interest in the board of review proceedings could not rescue the city’s argument, Justice A.W. Bradley wrote, because “[N]either subsec. (12) nor subsec. (13) refers to the City as a ‘party in interest’ beyond proceedings before the board.’”
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