Milewski v. Town of Dover, Bd. of Review for the Town of Dover, & Gardiner Appraisal Serv., LLC
| Decision Date | 07 July 2017 |
| Docket Number | No. 2015AP1523,2015AP1523 |
| Citation | 377 Wis.2d 38,899 N.W.2d 303,2017 WI 79 |
| Parties | Vincent MILEWSKI and Morganne MacDonald, Plaintiffs-Appellants-Petitioners, v. TOWN OF DOVER, Board of Review for the Town of Dover, and Gardiner Appraisal Service, LLC, as Assessor for the Town of Dover, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
For the plaintiffs-appellants-petitioners, there were briefs filed by Richard M. Esenberg, Brian W. McGrath, Thomas C. Kamenick, and Wisconsin Institute for Law & Liberty, Milwaukee, and oral argument by Richard M. Esenberg.
For the defendants-respondents Town of Dover and Board of Review for the Town of Dover, there was a brief filed by Dustin T. Woehl, Jason P. Gehring, and Kasdorf Lewis & Swietlik, SC, Milwaukee, and oral argument by Jason P. Gehring.
For the defendant-respondent Gardiner Appraisal Service, LLC, there was a brief filed by Mitchell R. Olson and Axley Brynelson, LLP, Madison, and oral argument by Timothy M. Barber.
An amicus curiae brief was filed on behalf of Institute for Justice by Lee U. McGrath and Meagan A. Forbes and Institute for Justice, Minneapolis.
An amicus curiae brief was filed on behalf of Wisconsin REALTORS® Association by Thomas D. Larson and Wisconsin REALTORS® Association, Madison.
An amicus curiae brief was filed on behalf of The State of Wisconsin by Brad B. Schimel, Wisconsin Attorney General, Misha Tseytlin, Solicitor General, Ryan J. Walsh, Chief Deputy Solicitor General, Kevin M. LeRoy, Deputy Solicitor General, Daniel P. Lennington, Deputy Solicitor General and Wisconsin Department of Justice, Madison.
¶1 Vincent Milewski and Morganne MacDonald (collectively, the "Milewskis") own a home in the Town of Dover. They want to challenge a tax assessor's recent revaluation of their property. But they also want to prevent the tax assessor from inspecting the interior of their home as a part of that process. The Town says our statutes require them to pick one or the other because they cannot do both.1 The Milewskis ask us whether the Town can put them to this choice.2
¶2 The Milewskis bring us a discrete question, but we see that the answer will play out against an intricate and delicately balanced set of tax statutes and constitutional provisions. Although the following background provides little more than a broad sketch of Wisconsin's system of real property taxation, it should be enough to place the Milewskis' question in an understandable context.
¶3 Article VIII, section 1 of the Wisconsin Constitution, known as the Uniformity Clause, requires the uniform taxation of real property,3 and Wis. Stat. ch. 70 provides the general procedure by which municipalities carry out this duty. In Wisconsin, "[r]eal property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under [ Wis. Stat. § 73.03(2a) ] from actual view or from the best information that the assessor can practicably obtain...." Wis. Stat. § 70.32(1) (2015-16)4 (emphasis added). The Wisconsin Property Assessment Manual provides that "[i]n the case of real property, actual view requires a detailed viewing of the interior and exterior of all buildings and improvements and the recording of complete cost, age, use, and accounting treatments." Wis. Dep't of Revenue, Wisconsin Property Assessment Manual , 10-55 (2017).
¶4 If the property owner is dissatisfied with the assessor's valuation, he may bring his objection to the local board of review. Wis. Stat. § 70.47(7)(a).5 He may do so, however, only after he has first allowed a tax assessor to view his property:
No person shall be allowed to appear before the board of review, to testify to the board by telephone or to contest the amount of any assessment of real or personal property if the person has refused a reasonable written request by certified mail of the assessor to view such property.
Wis. Stat. § 70.47(7)(aa). At the board of review hearing, the owner may present evidence in support of what he believes to be the proper valuation. Wis. Stat. § 70.47(8). Based on that evidence, the board of review decides whether to adjust the assessor's valuation.
Wis. Stat. § 70.47(9)(a). If the owner disagrees with the board of review's conclusion, he may seek certiorari review by the circuit court. Wis. Stat. § 70.47(13).
¶5 Some property owners, however, may want a circuit court, rather than the town's board of review, to make the initial determination of whether the assessor's valuation is accurate. Such an owner may file a claim for excessive assessment in the circuit court under Wis. Stat. § 74.37(2). He must still, however, follow the pre-hearing procedures for challenging the valuation before the board of review, as outlined above: "No claim or action for an excessive assessment may be brought under this section unless the procedures for objecting to assessments under [§] 70.47 ... have been complied with." Wis. Stat. § 74.37(4)(a). After completing these pre-hearing procedures, the owner asks the board of review for a hearing waiver. Wis. Stat. § 70.47(8m). Once granted, the owner may file his complaint in the circuit court.
¶6 In 2013, the Town of Dover reassessed all the properties in its jurisdiction and contracted with Gardiner Appraisal Service, LLC ("Gardiner") to assign a value to each such property. Gardiner's attention eventually turned to the Milewskis' home (the "Property"), which had a pre-2013 assessed value of $273,900, and an estimated fair market value of $277,761. Gardiner sent the Milewskis a notice stating that it "must view the interior of your property for the Town wide revaluation program which is in progress" and that "[a]n assessor will stop to view your property on Tues, Aug 20 at 6:10 pm."
¶7 When the assessor arrived, Ms. MacDonald invited him into their yard and told him he was welcome to view the Property's exterior; however, she further informed him he would not be allowed inside the home. The assessor declined Ms. MacDonald's invitation to view the Property's exterior and left without asking her any questions about the Property.
¶8 A few months later, the Milewskis received a certified letter from Gardiner stating that the assessor had not "viewed the interior of your buildings" and asked that they schedule a time for him to do so. The Milewskis sent the Town a letter objecting to the requested interior inspection. Gardiner made no further attempt to view the interior of the Property and assessed it at a value of $307,100—a 12.12 percent increase from the previous assessment of $273,900.6
¶9 After learning of the new assessment, Mr. Milewski attended open book sessions to review the assessed values of other properties in the subdivision.7 Based on his research, Mr. Milewski learned that of the 43 parcels in the subdivision, only four properties, including the Milewskis', did not have their interiors inspected during the 2013 assessment. Of those four properties, all four saw an increase in their initial assessment. The other 39 properties that did have their interiors inspected saw their assessed value decrease. After receiving the initial assessments, the owners of two of the four properties that had not had their interiors inspected allowed Gardiner to conduct an inspection of their home's interior and the assessments for those properties were then reduced. Thus, the only two properties in the 43-parcel subdivision that saw an increased assessment during the 2013 revaluation were those two properties where the owners did not consent to Gardiner's view of their home's interior.
¶10 The Milewskis filed an "Objection Form for Real Property Assessment" with the Town, and about two weeks later, they appeared at the November 25, 2013 Dover Board of Review ("BOR") hearing, where they intended to object to the assessment of their Property. However, because the BOR determined they had refused "a reasonable request by certified mail of the assessor to view [their] property," the BOR refused to hear their objection.
¶11 The Milewskis paid their 2013 property taxes and filed a Notice of Claim and Claim with the Town Clerk under Wis. Stat. § 74.37, alleging the Property assessment was excessive and that the Town had violated their Fourth Amendment rights. The Town denied the Milewskis' claim by taking no action on it within 90 days. See Wis. Stat. § 74.37(3)(a). The Milewskis later followed the same procedure for their 2014 property taxes, with the same result.
¶12 The Milewskis commenced this case with a complaint that included a claim for excessive assessment under Wis. Stat. § 74.37, and a claim that Wis. Stat. § 70.47(7)(aa) and Wis. Stat. § 74.37(4)(a), as applied to the Milewskis, are unconstitutional because they conditioned their right to challenge the assessor's valuation of the Property on submission to a search of their home. The parties filed cross-motions for summary judgment. The circuit court granted the Town's, the BOR's, and Gardiner's motions and dismissed the Milewskis' claims. The court of appeals affirmed the circuit court, and we granted the Milewskis' petition for review.
¶13 Summary judgment is appropriate when there are no genuine disputes as to any material facts and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2). We review a grant of summary judgment de novo, applying the same methodology as the circuit court. Belding v. Demoulin , 2014 WI 8, ¶ 13, 352 Wis.2d 359, 843 N.W.2d 373. While our review is independent from the circuit court and court of appeals, we benefit from their analyses. See Preisler v. Gen. Cas. Ins. Co. , 2014 WI 135, ¶ 16, 360 Wis.2d 129, 857 N.W.2d 136.
¶14 A facial challenge to a statute's constitutionality also presents a question of law that we review de novo. Aicher...
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