author: FINE, J.

text:
    Charles H. Johnson, Plaintiff-Appellant, v. City of Greenfield Board of Review, Defendant-Respondent.
    Court of Appeals

      No. 2004AP2209.

      Submitted on briefs May 4, 2005.

      Decided June 7, 2005.

    2005 WI App 156
    (Also reported in 702 N.W.2d 460.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Charles H. Johnson, of De Pere.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Roger C. Pyzyk, City Attorney for Greenfield, of West Allis.
    Before Wedemeyer, EJ., Fine and Kessler, JJ.
   FINE, J.

¶ 1. Charles H. Johnson, an attorney licensed to practice law in this state, appeals, in pro. per., from an order affirming his certiorari challenge to a property-tax assessment by the City of Greenfield Board of Review. Johnson claims that the assessment did not comply with Wis. Stat. § 70.32(1) and the Wisconsin Property Assessment Manual because there is no evidence of how the assessor valued the property. We agree and reverse and remand to the Board with directions to reassess the property pursuant to § 70.32(1) and the Assessment Manual.

I.

¶ 2. Charles H. Johnson co-owned a condominium in the Woodbridge Village condominium development. On July 1, 2003, Johnson received a "Notice of Assessment" from the City of Greenfield informing him that the "estimated ... full. . . market value" of the condominium on January 1, 2003 was $112,400. Johnson filed an objection, claiming that the full market value of $112,400 was inaccurate because the assessor did not take into account the property's condition.

¶ 3. The City of Greenfield Board of Review held a hearing on Johnson's objection. At the hearing, Johnson contended that the valuation was incorrect because the assessor did not consider several cracked cinder blocks in the condominium's basement. When the Board asked Johnson about the cinder blocks, he admitted that the condominium association was responsible for the cost of fixing the cracks, but claimed that this was irrelevant to the January 1, 2003 assessment. Johnson also claimed that the valuation was inaccurate because it was not based on sales of comparable property. He pointed out that while several con-dominia in the development had been improved, his was not, and that there was no evidence that the assessor had made the appropriate adjustments for this.

¶ 4. David Krolicki, a City of Greenfield assessor, presented the Board with what he claimed were the sales of three "similar" condominium units: (1) a Woodbridge Village condominium sold in October of 2002 for $133,000; (2) a Woodbridge Village condominium sold in October of 2002 for $122,300; and a La Casa Real condominium sold in July of 2003 for $138,500. Krolicki told the Board, however, that these sales "were not used to set the value. They're just used as supports and the subject property is assessed at $112,400." He further admitted that:

without question there are some that have had updating, you know, kitchen, bath, the use of new cabinets and tiles and things [in the other units], without question. This [Johnson's unit] is not one of 'em and again, I'm just, I just want to reiterate that, you know, the sales that you have before you probably, most likely do have these updates included with them, but, again, these values are just, these sales are used to support and not to set the . .. value on the subject.

Krolicki also told the Board that, after he discussed the condition of the condominium with Johnson at an open-book conference, he reviewed a property record card. He claimed that, according to the card, he had inspected the condominium in May of 1996 and that the inspection did not reveal "anything that would be a detriment to value." The Board affirmed the assessment.

II.

¶ 5. We review the Board of Review's decision de novo. See Joyce v. Town of Tainter, 2000 WI App 15, ¶ 4, 232 Wis. 2d 349, 353, 606 N.W.2d 284, 286 (Ct. App. 1999). Our review is limited to whether: (1) the Board kept within its jurisdiction; (2) the Board acted according to law; (3) the action taken by the Board was arbitrary, oppressive, or unreasonable so as to represent its will and not its judgment; and (4) the evidence before the Board was such that it might reasonably sustain the assessment. State ex rel. N/S Assocs. v. Board of Review of the Vill. of Greendale, 164 Wis. 2d 31, 41, 473 N.W.2d 554, 557 (Ct. App. 1991).

¶ 6. Here, our inquiry is whether the assessment was made in accordance with the pertinent statutory directives. See State ex rel. Geipel v. City of Milwaukee, 68 Wis. 2d 726, 732, 229 N.W.2d 585, 588 (1975). If the assessment complies with the statute, we must uphold the assessment "if there is any evidence to support it." Ibid. We do not, however, assess the property's value. Nankin v. Village of Shorewood, 2001 WI 92, ¶ 21, 245 Wis. 2d 86, 102, 630 N.W.2d 141, 148. Rather, if we find any error that renders the assessment void, we must set it aside and remand to the Board for further proceedings. Ibid.

¶ 7. Real property assessment in Wisconsin is governed by Wis. Stat. § 70.32(1) and the Wisconsin Property Assessment Manual. Section 70.32(1) provides:

Real property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under s. 73.03 (2a) from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefore at private sale. In determining the value, the assessor shall consider recent arm's-length sales of the property to be assessed if according to professionally acceptable appraisal practices those sales conform to recent arm's-length sales of reasonably comparable property; recent arm's-length sales of reasonably comparable property; and all factors that, according to professionally acceptable appraisal practices, affect the value of the property to be assessed.

As used in § 70.32(1), "full value" is the same as "fair market value." Joyce, 2000 WI App 15, ¶ 17, 232 Wis. 2d at 359, 606 N.W.2d at 289. The best evidence of fair-market value is a recent arm's-length sale of the property or a reasonably comparable property. Ibid.; see also 1 Property Assessment Manual for Wisconsin Assessors 7-15 (2003). In this case, there was no recent arm's-length sale of Johnson's unit. We thus look at reasonably comparable sales.

¶ 8. Reasonably comparable sales:

referís] to properties that represent the subject property in age, condition, use, type of construction, location, number of stories, physical features and economic characteristics. The more similar the sold property is to the subject, the more valid is the sale price as an indicator of the value of the subject property. Also, by using similar properties, sale prices need fewer adjustments to arrive at an estimate of value for the subject property.

1 Property Assessment Manual, at 7-15; see also Rosen v. City of Milwaukee, 72 Wis. 2d 653, 665, 242 N.W.2d 681, 686 (1976) (considerations in determining whether property is reasonably comparable). The Assessment Manual advises assessors to collect comparable sales information from a variety of sources, including Real Estate Transfer Returns, real estate brokers, appraisers, lenders, newspapers, and multiple listing services. 1 Property Assessment Manual, at 7-15 to 7-16; see also Joyce, 2000 WI App 15, ¶ 21, 232 Wis. 2d at 361, 606 N.W.2d at 290. After collecting comparable sales information, the Assessment Manual instructs assessors to eliminate sales that are not valid arm's-length transactions, and select reasonably comparable sales for their estimate. 1 Property Assessment Manual, at 7-16. According to the Assessment Manual, an assessor should then decide what elements to use in comparing the properties and adjusting the value, including:

1. Real property rights conveyed
2. Financing terms
3. Time (market conditions)
4. Location
5. Physical characteristics (e.g. size, construction quality, and condition)
6. Economic characteristics (e.g. operating expenses, lease terms, management, and tenant mix).

Ibid. The Assessment Manual provides that the last step is to "apply[] the adjustment procedure to the comparable sales. ... It is in this step that the assessor puts together all of the market information that has been gathered and applies it to the subject property to arrive at a value estimate." 1 Property Assessment Manual, at 7-17.

¶ 9. Here, the assessor admitted that he did not use reasonably comparable sales to determine the value of Johnson's condominium unit, and that his last "actual view" of Johnson's unit was in 1996. This does not comport with Wis. Stat. § 70.32(1). Additionally, there is no evidence that either he or the Board used any permissible method to assess Johnson's unit. Accordingly, we reverse and remand this case to the Board for a reassessment of the condominium in compliance with the statute and the Wisconsin Property Assessment Manual. See Nankin, 2001 WI 92, ¶ 21, 245 Wis. 2d at 102, 630 N.W.2d at 148.

By the Court. — Order reversed and cause remanded with directions.

       Johnson and two of his sisters inherited the condominium from their mother.

       There are three methods of valuing property: the sales comparison approach, the cost approach, and the income approach. 1 Property Assessment Manual for Wisconsin Assessors 7-15 (2003).-

        The sales comparison approach relies on comparing similar properties to the subject and adjusting them for differences. The cost approach relies on determining either the reproduction or replacement cost of the improvements, subtracting all depreciation, then adding the value of the land. The income approach relies on estimating the net rent that the subject property could generate, then capitalizing the rent by an appropriate rate.

        Ibid. In this case, it appears that the parties looked to the most appropriate method of valuation, comparable sales, because there was no recent arm's-length sale of Johnson's condominium unit. Thus, we do not discuss the other methods of valuation. See ibid, ("appraisers typically use the sales comparison approach in markets where adequate sales exist"); Waste Mgmt. of Wis., Inc. v. Kenosha County Bd. of Review, 184 Wis. 2d 541, 556-557, 516 N.W.2d 695, 702 (1994) (where evidence of arm's-length sales exist, "it is error for an assessor to look to other information to value the property").

       Johnson's brief also asks for costs. Costs are governed by Wis. Stat. Rule 809.25, "unless otherwise ordered by the court." § 809.25(l)(a). If Johnson seeks costs beyond those permitted as a matter of course, he should make a motion on notice to the Board, together with a short supporting memorandum of law.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    Liberty Grove Town Board, Plaintiff-Appellant, v. Door County Board of Supervisors, Defendant-Respondent.
    Court of Appeals

      No. 2004AP2358.

      Submitted on briefs March 14, 2005.

      Decided June 7, 2005.

    2005 WI App 166
    (Also reported in 702 N.W.2d 33.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert J. Kay and Robert A. Mich, Jr. of Kay & Andersen, S.C., Madison.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Charles H. Bohl, Andrew A. Jones and Amy Weber Shambarger of Whyte Hirschboeck Dudek S.C., Milwaukee.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 8-25-05.

   PETERSON, J.

¶ 1. The Liberty Grove Town Board appeals a summary judgment dismissing its claims against the Door County Board of Supervisors. Liberty Grove argues it has exclusive authority to name roads within the town, and Door County's ordinance illegally infringes on Liberty Grove's road naming authority. We conclude that towns do not have exclusive authority over road naming. We also conclude that the ordinance is within Door County's statutory authority. Accordingly, we affirm the judgment.

BACKGROUND

¶ 2. On February 22, 2000, Door County passed Ordinance 02-00, which established a naming and numbering system for roads in unincorporated portions of the county. Door County sought to eliminate duplicate road names within the county because duplication presents problems for emergency services, particularly the 911 emergency dispatch system. To implement the ordinance, Door County identified duplicate road names, determined how many addresses in each town would be affected by changing the name, and requested towns with the fewest affected addresses to change the road name. Door County requested Liberty Grove to change twenty road names. Liberty Grove refused to change seven of them.

¶ 3. On November 19, 2003, Liberty Grove commenced this action seeking a declaratory judgment that towns, not counties, have the exclusive right to name town roads. It also sought a permanent injunction prohibiting Door County from interfering with Liberty Grove's road naming authority.

¶ 4. Door County moved for summary judgment. The circuit court concluded that although Liberty Grove had the "initial and paramount authority" to name town roads within its jurisdiction, that power was "subject to [the county's] limited exercise of authority under [the ordinance] in the case of duplicate names in different towns." It therefore granted Door County's motion and dismissed Liberty Grove's complaint.

STANDARDS OF REVIEW

¶ 5. We review a summary judgment independently, using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08.

¶ 6. The issues presented involve the construction of statutes and ordinances, which are questions of law that we review independently. Forest County v. Goode, 215 Wis. 2d 218, 224, 572 N.W.2d 131 (Ct. App. 1997), aff'd, 219 Wis. 2d 654, 579 N.W.2d 715 (1998). We are also asked to determine whether the County exceeded its statutory authority when it enacted the ordinance, which is also a question of law subject to independent review. See Northwest Props. v. Outagamie County, 223 Wis. 2d 483, 488, 589 N.W.2d 683 (Ct. App. 1998).

DISCUSSION

Whether Towns Have Exclusive Authority to Name Roads

¶ 7. Liberty Grove argues that towns have exclusive authority to name roads within their jurisdictions, relying on Wis. Stat. § 81.01(11) (2001-02) and Wis. Stat. § 60.23(17). Door County also claims statutoiy authority to name and change the names of town roads, relying on Wis. Stat. § 59.54(4) and (4m).

¶ 8. When interpreting statutes, we begin with the plain language of the statute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. When asked to interpret statutes that appear to be inconsistent, we look for compatibility, not for conflict. "It is a cardinal rule of statutory construction that conflicts between different statues, by implication or otherwise, are not favored and will not be held to exist if they may otherwise be reasonably construed." Tamminen v. Aetna Cas. & Sur. Co., 109 Wis. 2d 536, 544, 327 N.W.2d 55 (1982) (citation omitted).

¶ 9. Wisconsin Stat. § 81.01(H) provides:

The town board shall have the care and supervision of all highways in the town, except as otherwise provided. The town board shall:
(11) By ordinance, assign a name to each of the roads in the town under town board jurisdiction. No road name may be used on more than one road within the jurisdiction of the town.

The word "shall" is presumed to be mandatory when it appears in a statute. Swatek v. County of Dane, 192 Wis. 2d 47, 58, 531 N.W.2d 45 (1995). Therefore, by its plain language, this statute requires a town to assign a name to each road within the town's jurisdiction.

¶ 10. Liberty Grove also relies on Wis. Stat. § 60.23(17), which states:

The town board may:
(17) Change street names. Name, or change the name of, any street in the town under s. 82.03(7).

The use of the word "may" in a statute implies discretionary authority. Swatek, 192 Wis. 2d at 59. By its plain language, then, Wis. Stat. § 60.23(17) gives towns the discretion to name or change the name of a road within their jurisdiction.

¶ 11. Door County contends it has road naming authority by virtue of Wis. Stat. § 59.54. The relevant portions of that section read:

(4) RURAL naming OR numbering system. The board may establish a rural naming or numbering system in towns for the purpose of aiding in fire protection, emergency services, and civil defense, and appropriate and expend money therefor, under which:
(a) Each rural road, home, business, farm or other establishment, may be assigned a name or number.
(b) The names or numbers may be displayed on uniform signs posted on rural roads and intersections, and at each home, business, farm or other establishment.
(4m) Rural naming or numbering system; town cooperation. The rural naming or numbering system under sub. (4) may be carried out in cooperation with any town or towns in the county.

The plain language of this statute gives counties discretionary authority to establish a rural naming or numbering system when the purpose of the system is to aid in fire protection, emergency services and civil defense. The statute also gives counties discretion to give each road a name or number and to cooperate with towns to implement the system.

¶ 12. The parties agree the three statutes can be harmonized by reasonable construction to avoid conflict, but disagree on the manner of doing so. Liberty Grove urges us to harmonize the statutes as follows. Wisconsin Stat. §§ 81.01(11) and 60.23(17) specifically address road naming and therefore towns have exclusive road naming authority. Wisconsin Stat. § 59.54(4) gives counties the authority to implement a naming system, a numbering system, or a combination of both. If a county chooses a numbering system, there is no conflict with town naming authority. If a county chooses a naming system or a combination system, conflict is avoided when the county seeks town approval of any name changes. If a town does not approve, the county can resolve any name duplication problems through numbering. Accordingly, Liberty Grove argues the statutes should be harmonized to give towns exclusive authority over road names and counties subordinate authority to implement naming systems, conditioned on town approval.

¶ 13. Door County contends that Liberty Grove's proposed reading of the statutes is unreasonable because it distorts the statutes' plain language. We agree. The plain language of Wis. Stat. § 59.54(4) and (4m) does not condition a county's road naming authority on town consent. Rather, the naming systems "may be carried out in cooperation with" a town. Wis. Stat. § 59.54(4m) (emphasis added). The only condition on the county's authority to implement a road naming system is that it he related to fire protection, emergency services or civil defense. See Wis. Stat. § 59.54(4). Liberty Grove would have us interpret § 59.54(4m) to read that a naming system could be implemented only in cooperation with the town.

¶ 14. Door County also argues that if we read the statutes as Liberty Grove suggests, a county's statutory authority to implement a naming system is eviscerated. Statutes should be interpreted so that no provision is rendered meaningless. Wagner v. Milwaukee County Election Comm'n, 2003 WI 103, ¶ 33, 263 Wis. 2d 709, 666 N.W.2d 816. A county's authority to implement a naming system is meaningless if that authority can be usurped by a town's refusal to consent to road name changes.

¶ 15. We conclude that a town has initial authority to name town roads by virtue of Wis. Stat. § 81.01(11). However, the town's authority is subject to the county's discretionary authority, under Wis. Stat. § 59.54(4), to establish a road naming and numbering system for the specific purpose of aiding in fire protection, emergency services and civil defense. A county may cooperate with a town regarding road name changes. See Wis. Stat. § 59.54(4m). Ultimately, however, a county has authority to implement name changes, even if a town does not consent, when the name changes are made under the system pursuant to Wis. Stat. § 59.54.

Whether the Ordinance is Enforceable

¶ 16. Liberty Grove argues Door County, Wis., Ordinance 02-00 (Feb. 22, 2000), is unenforceable because it was enacted for improper purposes and therefore exceeds Door County's statutory authority. A county's statutory authority is limited to that provided in the enabling statute. Northwest Props., 223 Wis. 2d at 487-88. "When an ordinance fails to comply with the empowering statute, it is invalid." Id. at 488. Here, the enabling statute, Wis. Stat. § 59.54(4), gives Door County the authority to implement a road naming system "for the purpose of aiding in fire protection, emergency services, and civil defense .. . ."

¶ 17. Section 2 of the Door County ordinance, entitled "PURPOSE," provides:

(a) Public protection and safety;
(b) Aiding in law enforcement, fire protection, emergency services and civil defense;
(c) Alleviate confusion and difficulties by elimination of duplicate names or numbers by mandating adequate signage, and by requiring uniformity!!; and]
(d) Assist public and private entities in the timely and efficient delivery of goods and services.

Liberty Grove contends that purposes (c) and (d) exceed Door County's statutory authority. Regarding purpose (c), Liberty Grove argues that, had the legislature wanted counties to eliminate road name duplication and confusion, it would have expressly given counties that authority. See Wis. Stat. § 81.01(11) ("No road name may be used on more than one road within the jurisdiction of the town."). However, eliminating duplication and confusion aids Door County's emergency services. Because assisting emergency services is an expressly permitted purpose under the enabling statute, purpose (c) of the ordinance is a proper one.

¶ 18. Liberty Grove also argues that purpose (d) exceeds Door County's statutory authority. To the extent that the ordinance seeks to aid "private entities in the timely and efficient delivery of goods and services," we agree that Door County has exceeded its authority under Wis. Stat. § 59.54(4). However, even assuming purpose (d) is invalid, we need not conclude the ordinance is unenforceable. Purpose (d) has no independent effect on the substantive portion of the ordinance establishing Door County's road naming system. Because the purposes enumerated in (a)-(c) are statutorily authorize the ordinance, the ordinance is enforceable.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       All references to Wis. Stat. § 81.01(11) are to the 2001-02 version of the statutes. This section has since been amended and renumbered. See 2003 Wis. Act 214, § 114. Now part of Wis. Stat. § 82.03, "Duties of town board," the statute reads:
      (7) Highway names. The town board shall, by ordinance, assign a name to each of the roads that are under the town's jurisdiction. No road name may be used on more than one road within the jurisdiction of the town.
      The parties argue the effect of the deletion of the phrase "except otherwise provided" in the amended statute. However, the phrase appears in introductory language, not in the section pertaining to road naming. The parties' arguments regarding the phrase are unpersuasive.

       Liberty Grove offers several alternatives to Door County's road naming system that eliminate the need to obtain town consent to name changes, including using different numbering ranges in different towns and adding town names to road signs, e.g., "CEDAR ROAD in the Town of Liberty Grove." However, that there is an alternative way to achieve a statutory purpose does not affect the legitimacy of the means chosen by Door County to achieve that purpose. See State ex rel. Grand Bazaar Liquors, Inc. v. City of Milwaukee, 105 Wis. 2d 203, 211-12, 313 N.W.2d 805 (1982).

       Liberty Grove also contends the ordinance is unenforceable because it does not require Door County to seek town consent for road name changes. However, we have already concluded that a county is not statutorily required to obtain town consent for road name changes and, therefore, Liberty Grove's argument fails.

       Therefore, Liberty Grove's argument that various portions of Door County's Uniform Addressing System Manual regarding duplication show Door County's intent to pass the ordinance for impermissible purposes is unpersuasive.

       Our reasoning is analogous to a severability analysis. We may sever the unenforceable portions of an ordinance and leave the remainder intact. City News & Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93, 119, 604 N.W.2d 870 (Ct. App. 1999). Indeed, this ordinance includes an express severability clause: "If any provision of this ordinance is held to be void, invalid, unconstitutional or unenforceable by a court of competent jurisdiction, the remaining provisions of this ordinance shall not be affected thereby." Striking purpose (d) does not affect the ordinance as a whole.