Town of Hoard v. Clark Cnty., 2015AP678.

CourtCourt of Appeals of Wisconsin
Writing for the CourtKLOPPENBURG, P.J.
Citation873 N.W.2d 241,366 Wis.2d 239
Parties TOWN OF HOARD, Plaintiff–Respondent, v. CLARK COUNTY, Defendant–Appellant.
Docket NumberNo. 2015AP678.,2015AP678.
Decision Date12 November 2015

366 Wis.2d 239
873 N.W.2d 241

TOWN OF HOARD, Plaintiff–Respondent,
CLARK COUNTY, Defendant–Appellant.

No. 2015AP678.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 4, 2015.
Opinion Filed Nov. 12, 2015.

873 N.W.2d 242

On behalf of the defendant-appellant, the cause was submitted on the briefs of Ryan J. Steffes of Weld, Riley, Prenn & Ricci, S.C., Eau Claire.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Timothy D. Fenner and Timothy M. Barber of Axley Brynelson, LLP, Madison.



366 Wis.2d 242

¶ 1 The question on appeal is the legality of Town of Hoard Ordinance No. 091113, which imposes an annual charge on all property owners within the Town for the cost of fire protection. Pursuant to the ordinance, the Town charged Clark County, as the owner of a medical center

366 Wis.2d 243

in the Town, $3,327.68 for fire protection for 2014. The Town brought this action for declaratory relief in an effort to compel the County to meet its obligation under the ordinance. The Town moved for, and the circuit court granted, summary judgment in its favor. The County appeals.

¶ 2 The Town argues that it is entitled to summary judgment because the ordinance is authorized under WIS. STAT. § 60.55(2)(b) as "a fee on property owners in the Town for the cost of fire protection, as set according to a written schedule that was adopted by the town board."1 The County counters that: (1) the charge to the County under the ordinance is a tax rather than a fee and the County is exempt from general taxes under WIS. STAT. § 70.11(2) ; and (2) even if the charge is a fee, the ordinance is not authorized under WIS. STAT. § 60.55(2)(b) because that statute only authorizes fees for fire protection services "actually provided" to a property owner and the charge imposed under the ordinance is not for services "actually provided" to the County's property. For the reasons set forth below, we conclude that the Town is entitled to the declaratory relief granted to it on summary judgment. Therefore, we affirm.

366 Wis.2d 244


¶ 3 We briefly summarize the undisputed facts. The Town of Hoard is located in Clark County. The County owns and operates a medical center within the Town.

¶ 4 The Town is required by statute to provide "fire protection" to properties located within its geographic boundaries. The Town joined with other municipalities to form a fire district to provide fire protection to the municipalities including the Town. The fire district does not levy property taxes to fund its operations, and is, instead, primarily funded by the individual

873 N.W.2d 243

municipalities in the fire district. Each municipality contributes an equal share towards the cost of operating the fire district and the funding of its capital needs.

¶ 5 Prior to 2014, the Town funded its annual contribution to the fire district by means of a general tax levy. Properties that were exempt from local taxation did not pay towards the cost of fire protection provided by the fire district.

¶ 6 In September 2013, the town board enacted Ordinance No. 091113, which imposes an annual charge on properties located within the Town for the provision of fire protection according to a written schedule. The written schedule provides a formula for calculating a property's "domestic user equivalent" (DUE) units based upon two factors: the property's square footage and its nature of use (e.g., residential, commercial, hospital). For example, a single-family home of 1,500 square feet is assigned 1.0 DUE unit, and a hospital is assigned 1.5 DUE units per 1,000 square feet. The Town divides its total annual contribution to the fire district by the total number of DUE

366 Wis.2d 245

units located within its geographic boundaries to arrive at a dollar amount per DUE unit, and then uses that dollar amount to determine each property's annual charge for fire protection. Based upon this calculation, the Town charged the County $3,327.68 in 2014. The County did not pay the charge.

¶ 7 The Town filed a complaint in July 2014 seeking declaratory judgment that: (1) it "has the legal authority to impose a special annual charge for fire protection services upon County real property located within the Town's municipal boundaries pursuant to Wis. Stat. §§ 60.55 and 66.0627 ;" (2) its "Ordinance No. 091113 related to Fire Protection Charges is legally valid and enforceable;" and (3) the County must pay the 2014 charge for fire protection for its real property in the amount of $3,327.68 plus interest.

¶ 8 The Town filed a motion for summary judgment, and the circuit court granted summary judgment in favor of the Town.


¶ 9 Our review of a circuit court's grant of summary judgment is de novo. Post v. Schwall, 157 Wis.2d 652, 656, 460 N.W.2d 794 (Ct.App.1990). "When reviewing a grant ... of summary judgment, we apply the same methodology as the [circuit] court." Universal Die & Stampings, Inc. v. Justus, 174 Wis.2d 556, 560, 497 N.W.2d 797 (Ct.App.1993). "Summary judgment is granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Kruschke v. City of New Richmond, 157 Wis.2d 167, 169, 458 N.W.2d 832 (Ct.App.1990).

366 Wis.2d 246

¶ 10 As we explain below, based upon the undisputed facts, the Town is entitled to summary judgment granting declaratory relief because: (1) the charge here is a fee and not a tax; and (2) WIS. STAT. § 60.55(2)(b) authorizes the Town to charge property owners a fee, set according to a written schedule established by the town board, for the cost of fire protection provided to their property, and the Town provided fire protection to the County's property.

A. Tax Versus Fee

¶ 11 The Town concedes that if the charge under its ordinance is a tax then, under WIS. STAT. § 70.11(2), the County is exempt from paying the charge.2 However, as we explain, we conclude that the

873 N.W.2d 244

undisputed facts demonstrate that the charge is a fee, not a tax.

¶ 12 "The purpose, and not the name it is given, determines whether a government charge constitutes a tax." Bentivenga v. City of Delavan, 2014 WI App 118, ¶ 6, 358 Wis.2d 610, 856 N.W.2d 546 ; see also City of Milwaukee v. Milwaukee & Suburban Transport Corp., 6 Wis.2d 299, 305, 94 N.W.2d 584 (1959) ("The substance, and not the form, of the imposition is the test of its true character."). "[T]he primary purpose of a tax is to obtain revenue for the government, while the primary purpose of a fee is to cover the expense of providing a service or of regulation and supervision of certain activities." City of River Falls v. St. Bridget's Catholic Church of River Falls, 182 Wis.2d 436, 441–42, 513 N.W.2d 673 (Ct.App.1994).

366 Wis.2d 247

¶ 13 The Town contends that the primary purpose of the charge here is to cover the expense of providing a service—fire protection by the fire district—and, therefore, the charge is a fee rather than a tax. In this regard, we perceive no dispute regarding the following facts. The expenses and capital needs of the fire district are primarily funded by contributions from each of the municipalities. In 2014, the Town's annual contribution was $24,500. The annual contribution is "divided by the total number of DUE units in the funding system to then allocate [the cost] amongst the property owners." Thus, "money collected [from property owners] under the system will never exceed what is put into the fire district." We conclude that the Town sufficiently established on summary judgment that it applies the charge imposed by the ordinance solely to cover the expense of providing the service of fire protection.

¶ 14 On appeal, the County ignores the above test for determining whether a charge is a tax or a fee, and raises two different but closely related arguments. The County contends that under City of River Falls: (1) the fact that the Town is "imposing the fire protection charge in its role as a municipality rather than in the role of a public utility," means that the charge is a tax; and (2) the fact that non-payment of the charge results in a tax lien against the property shows that the charge is in fact a tax. It is true that in City of River Falls, the city acted in its role as a public utility and the failure to pay did not result in a tax lien. See 182 Wis.2d at 442–43, 513...

To continue reading

Request your trial
2 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT