State ex rel. Markarian v. City of Cudahy, 53

• Decision Date: 06 February 1970
• Docket Number: No. 53,53
• Citation: 45 Wis.2d 683,173 N.W.2d 627
• Parties: STATE ex rel. Frank MARKARIAN, Respondent, v. CITY OF CUDAHY, Appellant.
• Court: Wisconsin Supreme Court

Page 627

173 N.W.2d 627

45 Wis.2d 683

STATE ex rel. Frank MARKARIAN, Respondent, v. CITY OF CUDAHY, Appellant.

No. 53.

Supreme Court of Wisconsin.

Feb. 6, 1970.

This is an appeal from a judgment setting aside an assessment made by the assessor of the City of Cudahy on an unimproved parcel of land owned by the respondent Frank Markarian. In 1967 Markarian was notified the assessed value of his real property had been increased from $4,125 to $7,000. At a hearing on his objection before the board of review, the assessor, the assistant assessor and Markarian testified and the board adopted the new assessment without change. On review by a writ of certiorari the circuit court set aside the assessment; the City of Cudahy appeals.

Boren, Schmidt & Fleming, James E. Boren, Cudahy, for appellant, Morton J. Schmidt, Cudahy, of counsel.

Schmus & Panosian, Charles G. Panosian, West Allis, for respondent.

HALLOWS, Chief Justice.

The city claims there was credible evidence by the assessor which reasonably supports the assessment and the board of review did not act arbitrarily, in bad faith or dishonestly, or refuse to consider competent, substantial evidence presented by Markarian because most of his testimony was hearsay. There is no question the board of review did not act arbitrarily or in bad faith or dishonestly. But there is an issue of whether the board refused to consider competent evidence presented by Markarian and whether the method of evaluation used by the assessor was correct. The trial court based its reversal on the ground the assessor completely ignored evidence in respect to a change of grade of the street and its depressing effect on the value of the property and on the ground the assessment was not based on the sale value as required by statute.

The valuation of real estate for tax purposes is governed by sec. 70.32(1), Stats., ¹ which requires it to be valued from the best information at 'the full value which could ordinarily be obtained at a private sale.' Commonly stated, sec. 70.32(1) requires real estate to be assessed at its fair-market value which has often been defined as the amount the property could be sold for in the open market by an owner willing and able but not compelled to sell to a purchaser willing and able but not obliged to buy. State ex rel. Hennessey v. City of Milwaukee (1934), 241 Wis. 548, 6 N.W.2d 718; State ex rel. Farmers & Merchants State Bank v. Schanke (1945), 247 Wis. 182, 19 N.W.2d 264; State ex rel. Baker Mfg. Co. v. City of Evansville (1952), 261 Wis. 599, 608, 53 N.W.2d 795; State ex rel. Evansville Mercantile Ass'n v. City of Evansville (1957), 1 Wis.2d 40, 82 N.W.2d 899.

The 'best information' of such value is a sale of the property or if there has been no such sale then sales of reasonably comparable property. In the absence of such sales, the assessor may consider all the factors collectively which have a bearing on value of the property in order to determine its fair-market value. However, it is error to use this method 'when the market value is established by a fair sale of the property in question or like property.' State ex rel. Enterprise Realty Co. v. Swiderski (1955), 269 Wis. 642, 645, 70 N.W.2d 34, 35. The statutory rule of assessment of real estate is restricted to its sale value in the open market and is not concerned with its intrinsic value if the intrinsic value differs either more or less from the sale value. State ex rel. Northwestern Mutual Life Ins. Co. v. Weiher (1922), 177 Wis. 445, 448, 188 N.W. 598.

In reviewing a valuation of real estate on certiorari, the court must consider the evidence of value in the light of the presumption of correctness of the assessor's valuation, sec. 70.49(2), Stats. See Estate of Ryerson (1941), 239 Wis. 120, 300 N.W. 782. The assessor's valuation thus will not be set aside in the absence of evidence showing it to be incorrect. State ex rel. Collins v. Brown (1937), 225 Wis. 593, 275 N.W. 455; State ex rel. Enterprise Realty Co. v. Swiderski, supra. We have also held that in certiorari proceedings a court should not disturb the findings of a board of review if the evidence presented in favor of the assessment furnishes a substantial basis for that evaluation, but both of these rules presuppose the method of evaluation is in accordance with the statutes. Errors of law should be corrected by the court on certiorari and the failure to make an assessment on the statutory basis is an error of law. Madison Aerie No. 623 F.O.E. v. City of Madison (1957), 275 Wis. 472, 474, 475, 82 N.W.2d 207; State ex rel. Garton Toy Co. v. Town of Mosel (1966), 32 Wis.2d 253, 145 N.W.2d 129; see also State ex rel. Boostrom v. Board of Review (1969), 42 Wis.2d 149, 166 N.W.2d 184.

The property in question is a parcel of land on the southwest corner of Ramsey avenue and Illinois avenue in the city of Cudahy with a frontage on Ramsey of 295 feet and a frontage on Illinois of 215 feet. The property is unimproved and has been owned by Markarian for some years and consequently there has been no recent sale of the parcel which could be used as a standard. However, instead of using sales of comparable unimproved property, the city claims the...