State Ex Rel. Stupar River Llc v. Town of Linwood Portage County Bd. of Review

• Decision Date: 22 July 2011
• Docket Number: No. 2009AP191.,2009AP191.
• Parties: STATE of Wisconsin ex rel. STUPAR RIVER LLC, Petitioner–Appellant–Petitioner,v.TOWN OF LINWOOD PORTAGE COUNTY BOARD OF REVIEW, Respondent–Respondent.
• Court: Wisconsin Supreme Court

800 N.W.2d 468
2011 WI 82

STATE of Wisconsin ex rel. STUPAR RIVER LLC, Petitioner–Appellant–Petitioner,
v.
TOWN OF LINWOOD PORTAGE COUNTY BOARD OF REVIEW, Respondent–Respondent.

No. 2009AP191.

Supreme Court of Wisconsin.

Argued April 19, 2011.Decided July 22, 2011.

[800 N.W.2d 469]

For the petitioner-appellant-petitioner there were briefs by Thomas W. Bertz and Anderson, O'Brien, Bertz, Skrenes & Golla, Stevens Point and oral argument by Thomas W. Bertz.

[800 N.W.2d 470]

For the respondent-respondent there was a brief by Maris Rushevics, Stevens Point and oral argument by Maris Rushevics.MICHAEL J. GABLEMAN, J.

¶ 1 Stupar River LLC (Stupar River) seeks review of an unpublished decision of the court of appeals affirming a decision of the Portage County Circuit Court, Thomas T. Flugaur, Judge, upholding the 2005 property tax assessment of the Wisconsin River Country Club (the subject property).¹

¶ 2 Stupar River argues that the Town of Linwood Board of Review (Board) improperly upheld the assessment of the subject property for the 2005 tax year. Stupar River alleges that this assessment was at a level significantly higher than its fair market value ² in violation of Wis. Stat. § 70.32(1) (2003–04).³ We conclude that the assessment upheld by the Board was made according to law and was supported by a reasonable view of the evidence, and affirm the court of appeals.

I. BACKGROUND

¶ 3 The following facts are undisputed for the purposes of this appeal.

¶ 4 In 2001, Stupar River, a Wisconsin limited liability company, purchased the subject property in the Town of Linwood for $830,000. In 2002, the Town of Linwood assessed the subject property for property tax purposes at $1,831,500. ⁴ Stupar River filed an objection with the Board arguing that the 2002 assessment was not equal to fair market value. The Board conducted a hearing on Stupar River's objection and affirmed the assessed value ⁵ of $1,831,500.

¶ 5 Stupar River then filed a petition for a writ of certiorari pursuant to Wis. Stat. § 70.47(13).On October 10, 2003, the Portage County Circuit Court, John V. Finn, Judge, set aside the 2002 assessment, concluding the valuation “was not made on the statutory basis,” and remanded the case to the Board for a reassessment for the 2002 tax year. The Board appealed the decision of the circuit court to the court of

[800 N.W.2d 471]

appeals, which on April 21, 2005, reversed the circuit court and reinstated the Board's valuation for the 2002 tax year. State ex rel. Stupar River LLC v. Town of Linwood Bd. of Review, No. 2004AP108, ¶ 24, unpublished slip op., 283 Wis.2d 507, 2005 WL 1077503 (Wis.Ct.App. Apr. 21, 2005). This decision of the court of appeals reinstating the 2002 tax assessment of the Board was never appealed, and is not before us today.

¶ 6 While the litigation challenging the 2002 assessment was pending, the subject property was assessed for the 2003 and 2004 tax years at the same value as 2002—that is, at $1,831,500. Stupar River paid its property taxes in 2003 and 2004 under protest.

¶ 7 For the 2005 tax year, the property assessment of the subject property was increased to $1,893,400.⁶ On October 1, 2005, Stupar River filed a written objection to the 2005 assessment with the Board, arguing that the 2005 assessment was not equal to the fair market value of the subject property. On November 16, 2005, the Board, pursuant to Wis. Stat. § 70.47(7)(a), conducted an evidentiary hearing.

¶ 8 At the evidentiary hearing, the Board heard sworn testimony relating to three competing assessments of the subject property. Scott Williams, an appraiser ⁷ for the Town of Linwood, testified that based upon his review, he valued the subject property at $1,500,000. Daniel Mielke, the assessor for the Town of Linwood, who concluded that the assessed value of the subject property in 2005 was $1,893,400, testified in support of his assessment. Finally, Steven Vitale, on behalf of Stupar River, submitted a written appraisal document, which valued the subject property at $1,190,000.

¶ 9 On November 21, 2005, the Board upheld the 2005 assessment.

¶ 10 Stupar River subsequently petitioned for certiorari review of the Board's November 21, 2005 determination. The circuit court gave its oral ruling on Stupar River's petition on March 27, 2008. By this time, the 2006 and 2007 assessments of the subject property were also complete.⁸ Both the 2006 and 2007 assessments of the subject property were $1,435,900—a decrease of $457,500 from the 2005 assessment and a decrease of $394,500 from the 2002, 2003, and 2004 assessments. Stupar River did not challenge the accuracy of the 2006 assessment at the circuit court. Instead, Stupar River argued that the 2006 assessment established as a matter of law that the assessments for 2003, 2004, and 2005 were significantly

[800 N.W.2d 472]

higher than the subject property's fair market value.⁹

¶ 11 On May 12, 2008, the circuit court remanded the action to the Board with instructions to “reassess the [subject property] for the years 2003, 2004, and 2005 to be consistent with the assessment for 2006 ... or provide a rational explanation as to why the property's assessed value has decreased in value.”

¶ 12 In response to the order of the circuit court, the Board submitted a letter from Mielke, which explained that the comparatively lower amount of the 2006 assessment was not due to any change in the fair market value of the subject property. He explained that, upon review of the Department of Revenue Major Class Comparison Report issued in 2005, he had concluded it was necessary to lower the total assessed value of the commercial class ¹⁰ of properties in order to “bring it back in line with the other classes of properties.” Mielke stated that the 2006 assessment was lower than the 2005 assessment because of an overall downward adjustment he made to the assessed values of all of the commercial class properties in the Town of Linwood.

¶ 13 In response to Mielke's letter explaining the reduction in the 2006 assessment in comparison to the 2005 assessment, Stupar River submitted a letter from Carol Kuehn, a retired assessor from Stevens Point, Wisconsin. In her letter, Kuehn argued that Mielke's letter did not provide a rational explanation for the subject property's lower assessment in 2006. Kuehn's letter stated “Mielke's claimed methodology” for reducing the subject property's assessment in 2006 was “misguided and not rational” for the following reasons: (1) the aggregate value of the commercial class of property in the Town of Linwood is not more than 5% of the fair market value of the taxation district,¹¹ and therefore, Mielke was not statutorily required to adjust the commercial class of properties; ¹² (2) Mielke improperly reduced the subject property by 24%, while all other commercial properties were reduced by 36%; and (3) because Mielke assessed the subject property in 2006 at $1,435,900, and “[b]oth the assessor and the Department of Revenue indicate that the commercial class of property has not decreased in value” from 2005 to 2006, the

[800 N.W.2d 473]

accurate value for the 2005 assessment was $1,435,900.

¶ 14 On October 28, 2008, the circuit court concluded that the Board provided a sufficient explanation for the reduction of the 2006 assessment in comparison with the 2005 assessment and affirmed the Board's determination. On appeal, the court of appeals concluded that “[t]he reduction in the 2006 assessment was not based on a change in the fair market value of the [subject] property, but was based on an attempt to equalize market value in response to a Wisconsin Department of Revenue report.” Stupar River LLC, No. 2009AP191, ¶ 8. The court of appeals held that, because the 2006 assessment was not reduced in order to reflect a change in the subject property's fair market value, Stupar River's argument was premised on an inaccurate assumption. Id., ¶ 9. Accordingly, the court of appeals affirmed the decision of the circuit court.

¶ 15 Stupar River then petitioned this court for review, which we granted on September 22, 2010.

II. STANDARD OF REVIEW

¶ 16 Stupar River asks this court to overturn the Board's decision to uphold the property tax assessment of the subject property for the 2005 tax year. In a certiorari action under Wis. Stat. § 70.47(13), we review the Board's decision independently, but benefiting from the analyses of the circuit court and court of appeals. ABKA Ltd. P'ship v. Bd. of Review of the Village of Fontana–On–Geneva Lake, 231 Wis.2d 328, 335, 603 N.W.2d 217 (1999) (internal quotations and citations omitted). In our review, we look for “any error in the proceedings of the board which renders the assessment or the proceedings void.” Wis. Stat. § 70.47(13). Our review is a “strictly limited” one, ABKA Ltd. P'ship, 231 Wis.2d at 335, 603 N.W.2d 217, confined only to determining whether the Board's actions were: (1) within its jurisdiction; (2) according to law; (3) arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) supported by evidence such that the Board might reasonably make the order or determination in question. State ex rel. Mitchell Aero, Inc. v. Bd. of Review, 74 Wis.2d 268, 281–82, 246 N.W.2d 521 (1976). Stupar River's argument centers on the second of these four elements, contending that the Board failed to act according to law, and that is consequently our focus as well.

¶ 17 If the assessment is made in accordance with the statutory mandate, it must be upheld if it can be supported by any reasonable view of the evidence. Waste Mgmt. of Wisconsin, Inc. v. Kenosha Cnty. Bd. of Review, 184 Wis.2d 541, 555, 516 N.W.2d 695 (1994). “In determining whether there is enough evidence to sustain the assessment, the presumptions are all in favor of the rightful action of the Board.” ABKA Ltd. P'ship, 231 Wis.2d at 335, 603 N.W.2d 217 (internal quotations and citations omitted).

¶ 18 Stupar River argues that the Board, by upholding...