Wisconsin Property Taxpayers, Inc. v. Town of Buchanan

2023 WI 58

SUPREME COURT OF WISCONSIN
CASE NO.: 2022AP1233

COMPLETE TITLE: Wisconsin Property Taxpayers, Inc.,
Plaintiff-Respondent,
v.
Town of Buchanan,
Defendant-Appellant.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: June 29, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 13, 2023

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Mark J. McGinnis

JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion for a
unanimous Court. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion in which ROGGENSACK, J. joined.

NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant, there were briefs (in the
court of appeals) filed by Richard J. Carlson and Town Counsel
Law & Litigation, LLC, Kaukauna. There was an oral argument by
Richard J. Carlson.

For the plaintiff-respondent, there was a brief (in the
court of appeals) filed by Richard M. Esenberg, Luke N. Berg,
Lucas T. Vebber and Wisconsin Institute for Law & Liberty, Inc.,
Milwaukee. There was an oral argument by Lucas T. Vebber.
 2023 WI 58
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2022AP1233
(L.C. No. 2021CV712)

STATE OF WISCONSIN : IN SUPREME COURT

Wisconsin Property Taxpayers, Inc.,

Plaintiff-Respondent,
FILED
v. JUN 29, 2023

Town of Buchanan, Samuel A. Christensen
Clerk of Supreme Court

Defendant-Appellant.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion for a
unanimous Court. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion in which ROGGENSACK, J. joined.

APPEAL from a judgment and an order of the Circuit Court

for Outagamie County, Mark J. McGinnis, Judge. Affirmed.

¶1 REBECCA GRASSL BRADLEY, J. The Town of Buchanan
appeals the circuit court's grant of summary judgment in favor

of Wisconsin Property Taxpayers, Inc. (WPT). The circuit court

declared the Town's Transportation Utility Fee (TUF) to be a

property tax subject to the Town's levy limit.1 Wisconsin Stat.

1The Honorable Mark J. McGinnis, Outagamie County Circuit
Court, presided.
 No. 2022AP1233

§ 66.0827 (2021-22)2 authorizes municipalities to establish

utility districts to fund highways, sewers, and other "public

improvement[s] provided in the district." The funding for a

utility district must be provided through "taxation of the

property in the district[.]" § 66.0827(2). The levy limit

statute, Wis. Stat. § 66.0602, limits how much, and under what

circumstances, a political subdivision may increase its property

tax levy. The circuit court reasoned a "taxation of property"

and a property tax are effectively the same and therefore

concluded the money raised for the district fund is subject to

the Town's property tax levy limit. After the Town appealed,

the parties filed a joint petition for bypass of the court of

appeals, which this court granted.

¶2 WPT contends the TUF is unlawful on three grounds.

First, Wisconsin Statutes do not authorize municipalities to

impose a TUF on property owners based on estimated use of the

municipality's roads. Second, the Town did not reduce its

property tax levy to account for the TUF and accordingly has
exceeded its levy limit. Third, the fee structure implemented

by the TUF violates the Uniformity Clause under Article VIII,

Section 1 of the Wisconsin Constitution. We reach only the

first two arguments, with which we agree and hold that funds

raised for utility districts under Wis. Stat. § 66.0827 are

2All subsequent references to the Wisconsin Statutes are to
the 2021-22 version unless otherwise indicated.

2
 No. 2022AP1233

property taxes subject to municipal levy limits. Accordingly,

we affirm the decision of the circuit court.

I. BACKGROUND

¶3 The rising costs of maintaining public roads within

the Town have become a long-term concern for the Town's board.

The board anticipated needing to reconstruct as much as 44% of

the Town's roads over the next ten years. Consequently, the

board decided it needed to raise money beyond its current levy

limit. The board submitted a referendum to Town residents,

giving them a choice of raising the property tax levy, imposing

a special assessment on all property, or imposing a TUF. After

voters chose a TUF, the board adopted Town ordinance § 482 in

December 2019 to fund future road construction projects through

a transportation utility fee. In relevant part, the ordinance

states:

A. The Town of Buchanan is hereby establishing a
Transportation Utility District. The operation of
the Transportation Utility District shall be under
the day-to-day management of the Town Administrator
and under the supervision of the Town Board.
He/she, or a designated representative, shall
provide an annual estimate to the Town Chairperson
by October 1 of each year.

B. The Town, acting through the Transportation Utility
District, may, without limitation due to
enumeration, acquire, construct, lease, own,
operate, maintain, extend, expand, replace, repair,
manage and finance such transportation facilities
and related facilities, operations and activities,
as are deemed by the Town to be proper and
reasonably necessary to provide safe and efficient
transportation facilities within the Town. The
following activities to be funded by the
transportation utility fee are the cost of utility

3
 No. 2022AP1233

district highways, stormwater management,
sidewalks, street lighting, traffic control and the
cost of any other convenience or public improvement
provided in the District and not paid in full by
special assessment.
Town of Buchanan Ordinances § 482-3 (2021). To raise funds for

the utility district, the Town implemented the TUF:

A. Every developed property within the Town of
Buchanan shall pay a transportation utility fee.

B. The Town Board shall by resolution determine the
annual amount to be funded by a transportation
utility fee, formulas for the calculation of the
fee and specific use category classifications.
Changes in formulas and classifications may be made
by further resolution of the Town Board. All fees
established pursuant to this section shall be fair
and reasonable. A schedule of current fees shall
be maintained and on file in the office of the Town
Clerk.
§ 482-4.

¶4 After enacting the ordinance, the Town administrator

set the TUF target funding amount at $875,000 annually. The

board then announced a formula and fee based on estimated use of

the Town's roads by each developed property within the

municipality. Under the Town's funding scheme, all residential

properties must pay the same fee, while commercial properties

must pay a variable fee based on the size and type of business

and the number of estimated "trips" on municipal roads the

business is expected to generate. These fees range from roughly

$300 for residential properties to more than $8,000 annually for

some commercial properties. In total, the TUF collected more

than $855,000 in 2020.

4
 No. 2022AP1233

¶5 Before adopting ordinance § 482, the Town paid for

road construction on a "pay as you go" basis from its general

property tax levy. The Town's total property tax levy for 2020

was $2,374,348. In 2021, after enacting the ordinance, the

Town's property tax levy was $2,490,680, reflecting the maximum

increase allowed under Wis. Stat. § 66.0602. That year, the

Town Board again set the "annual amount to be funded" by the TUF

at approximately $855,000. The Town handled funds collected

under the TUF separately and in addition to the general tax levy

in 2021, resulting in a net increase in municipal tax revenue of

approximately 34% beyond the levy limit.

¶6 In September 2021, WPT brought this action against the

Town, seeking declaratory and injunctive relief. The parties

stipulated to the facts, and both parties moved for summary

judgment. WPT alleged the TUF is a property tax subject to

municipal levy limits under Wis. Stat. § 66.0602; therefore, any

revenue raised through the TUF must be offset by a reduction in

the Town's general property tax levy. WPT also sought a
declaration that the adopted method of taxation, based on

estimated use of municipal roads, violates the Uniformity Clause

of the Wisconsin Constitution because the Town ordinance does

not allocate the TUF based on property value. In response, the

Town argued Wis. Stat. § 66.0827 authorizes a special tax not

subject to levy limits or the requirement of uniformity.

¶7 The circuit court granted summary judgment in favor of

WPT, declaring the TUF to be a property tax subject to the
Town's levy limit. It also permanently enjoined the Town from
5
 No. 2022AP1233

levying, enforcing, or collecting the TUF in any amount above

its levy limit. This appeal followed.

II. STANDARD OF REVIEW

¶8 In this case, we "independently review a grant of

summary judgment using the same methodology of the circuit

court[.]" Kemper Indep. Ins. Co. v. Islami, 2021 WI 53, ¶13,

397 Wis. 2d 394, 959 N.W.2d 912 (quoting Talley v. Mustafa, 2018

WI 47, ¶12, 381 Wis. 2d 393, 911 N.W.2d 55). "Summary judgment

is appropriate when there is no genuine dispute of material fact

and the moving party is entitled to judgment as a matter of

law." Id. (quoting Talley, 381 Wis. 2d 393, ¶12).

¶9 This case also requires us to interpret and apply

several Wisconsin statutes. "The interpretation and application

of statutes present questions of law that we review

independently, benefitting from the analyses of the circuit

court[.]" Eau Claire Cnty. Dep't of Human Servs. v. S.E., 2021

WI 56, ¶13, 397 Wis. 2d 462, 960 N.W.2d 391 (citing State v.

Stephenson, 2020 WI 92, ¶18, 394 Wis. 2d 703, 951 N.W.2d 819).
III. DISCUSSION

¶10 Despite being labeled a "fee," the parties do not

dispute the TUF is in fact a tax on Town residents. "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

(citing City of Milwaukee v. Milwaukee & Suburban Transp. Corp.,

6 Wis. 2d 299, 305–06, 94 N.W.2d 584 (1959)). A "fee" imposed
for the purpose of generating revenue for the municipality is a
6
 No. 2022AP1233

tax, and without legislative permission it is unlawful. Id.,

¶11 (citing Milwaukee & Suburban Transp. Corp., 6 Wis. 2d at

306). The parties are correct; the TUF is a tax because the

Town imposed it on a class of residents for the purpose of

generating revenue. The parties do, however, dispute its

lawfulness. Specifically, the parties disagree on (1) whether

Wis. Stat. § 66.0827, which governs the formation and funding of

utility districts, authorizes the Town's taxation scheme and (2)

whether the taxation of property to fund a utility district is

nonetheless subject to property tax levy limits under Wis. Stat.

§ 66.0602. WPT argues the "taxation of the property in the

district" under § 66.0827 is a property tax subject to other

requirements of the Wisconsin Statutes. In contrast, the Town

contends the utility district statute authorizes a form of

special tax, bound only by the procedural requirements of that

section. For the reasons that follow, we agree with WPT.

A. Authorization of Taxation

¶11 As Chief Justice John Marshall famously wrote, "the
power to tax involves the power to destroy[.]" McCulloch v.

Maryland, 17 U.S. 316, 431 (1819). Cognizant of the

consequential power the State wields when it imposes taxes on

the people, "Wisconsin recognizes the general rule of

construction that a tax cannot be imposed without clear and

express language for that purpose, and where ambiguity and doubt

exist, it must be resolved in favor of the person upon whom it

is sought to impose the tax." City of Plymouth v. Elsner, 28
Wis. 2d 102, 106, 135 N.W.2d 799 (1965) (citing Wadhams Oil Co.
7
 No. 2022AP1233

v. State, 210 Wis. 448, 459, 245 N.W. 646 (1933)). Like cities,

towns "have no inherent power to tax. [Towns] may only enact

the types of taxes authorized by the legislature." Blue Top

Motel, Inc. v. City of Stevens Point, 107 Wis. 2d 392, 395, 320

N.W.2d 172 (1982) (citing Jordan v. Menomonee Falls, 28

Wis. 2d 608, 621, 137 N.W.2d 442 (1965)).

¶12 We first examine whether Wis. Stat. § 66.0827

authorizes the Town's implementation of the TUF with "clear and

express language for that purpose." Elsner, 28 Wis. 2d at 106.

Our interpretation of Wis. Stat. § 66.0827 "'begins with the

language of the statute.' If the meaning of the language is

plain, our inquiry ordinarily ends." Milwaukee Dist. Council 48

v. Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 924

N.W.2d 153 (quoting State ex rel. Kalal v. Cir. Ct. for Dane

Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110)

(citation omitted). Consideration of a "statute's context and

structure are critical to a proper plain-meaning analysis."

Brey v. State Farm Mut. Auto. Ins., 2022 WI 7, ¶11, 400
Wis. 2d 417, 970 N.W.2d 1 (citing Milwaukee Dist. Council 48,

385 Wis. 2d 748, ¶11).

¶13 Wisconsin Stat. § 66.0827 provides, in relevant part:

(1) Towns . . . may establish utility districts.

(b) In towns, the town board may direct that the
cost of any convenience or public improvement
provided in the district and not paid for by
special assessment be paid from the district
fund under sub. (2).

8
 No. 2022AP1233

(2) The fund of each utility district shall be provided
by taxation of the property in the district, upon
an annual estimate by the . . . town chairperson[.]
(Emphasis added). In enacting the TUF, the Town implemented a

taxation scheme based on property owners' estimated usage of

roads within the municipality. Town ordinance § 482-4(B) states

the Town board "shall by resolution determine . . . formulas for

the calculation of the fee and specific use category

classifications." Acting under this ordinance, the board

developed a formula for funding the utility district derived
from a statistical analysis of road usage by various property

types within the municipality, divided into various "use

category classifications." The Town uses that formula to

allocate taxes across all developed property in the

municipality.

¶14 Wisconsin Stat. § 66.0827, however, authorizes

"taxation of the property in the district," not taxation based

on estimated usage of roads in the district. Applying the clear

and express language of the statute, a "taxation of the

property" is merely another way of saying a "property tax." A
"taxation of the property" and a "property tax" are materially

the same. As explained more fully below, property taxation may

not exceed municipal levy limits, with exceptions that do not

apply in this case. See supra Section III.B. Accordingly,

§ 66.0827 provides a mechanism for allocating taxation within a

utility district, but does not authorize taxation above and

beyond a municipality's levy limit.

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 No. 2022AP1233

¶15 The Town contends "taxation of the property" under

Wis. Stat. § 66.0827 is a "special tax" but not a general

property tax. In its statutory analysis, the Town primarily

argues § 66.0827 would lack any purpose if district funding were

subject to the levy limit because a municipality would not

undertake the effort to establish a utility district if it were

not a separate source for funding public improvements. In the

Town's view, the legislature "intended" the utility district as

an alternative to general property taxes and special

assessments. For several reasons, we are unpersuaded by the

Town's reading of the statute.

¶16 First, "the legislature knows how to write a statute

accomplishing the work [the Town] would have Wis. Stat.

[§ 66.0827] perform." Teigen v. Wisconsin Elections Comm'n,

2022 WI 64, ¶49, 403 Wis. 2d 607, 976 N.W.2d 519 (lead op.)

(citing State v. Yakich, 2022 WI 8, ¶24, 400 Wis. 2d 549, 970

N.W.2d 12). Wisconsin Stat. § 74.01(5) defines "special tax" to

mean "any amount entered in the tax roll which is not a general
property tax, special assessment or special charge." The

legislature could have specifically authorized municipalities to

fund utility districts through a "special tax" as defined in

§ 74.01(5), but it did not. Instead, utility districts must be

funded via "taxation of the property" and as a property tax,

such taxation must comport with the statutes governing property

taxes, including the levy limit mandated under Wis. Stat.

§ 66.0602. The Town offers no authority to support its
characterization of the TUF as a "special tax" under Chapter 74
10
 No. 2022AP1233

that would be exempt from a municipal levy limit, rather than a

general property tax.

¶17 Second, the Town effectively asks this court to

conclude the legislature "hid[] [an] elephant in [a]

mousehole[.]" Id., ¶63 (majority op.) (quoting Whitman v.

American Trucking Ass'n, 531 U.S. 457, 468 (2001))

(modifications in the original). The negligible difference in

language——"taxation of the property" as opposed to "property

tax"——cannot bear the weight of the work the Town would assign

it. More plausibly, "taxation of the property in the district"

carries no meaningful difference from "property taxes" beyond

differentiating between property taxes imposed within a discrete

taxation district and the "general property tax" imposed on all

non-exempt property owners in the municipality as a whole.

Because the public improvement funded by a utility district may

benefit only select properties within the municipality, the

legislature limited apportionment of such property taxes to the

"property in the district" alone. Carving out particular
properties within the municipality for imposition of a TUF does

not change its nature as a property tax.

¶18 Because a TUF is a property tax, its funding through

the establishment of a utility district must follow the

procedures outlined in Chapter 70 of the Wisconsin Statutes.

"The assessment of general property for taxation in all the

towns, cities and villages of this state shall be made according

to this chapter unless otherwise specifically provided." Wis.
Stat. § 70.05(1) (emphasis added). Chapter 70 outlines a
11
 No. 2022AP1233

procedure for calculating an ad valorem property tax, meaning

one based on the market value of the property. In calculating

estimated use of roads, the Town bases the TUF on the class of

the property and its commercial characteristics, not the value

of the property. Because Wis. Stat. § 66.0827 does not

authorize "taxation of property" to be based on anything other

than property value, the TUF's assessment methodology is

unlawful.

¶19 Chapter 70 also exempts certain properties from

property taxation altogether. Wis. Stat. § 70.01 ("Taxes shall

be levied, under this chapter, upon all general property in this

state except property that is exempt from taxation.") (emphasis

added). The Town imposes the TUF upon all developed properties

in the district, regardless of their tax-exempt status. The law

does not give the Town any authority to impose a property tax on

tax-exempt properties within the municipality.

¶20 The Town reads Wis. Stat. § 66.0827 as a standalone

statutory taxation scheme not subject to Chapter 70 or any other
provision of the Wisconsin Statutes. Under the Town's

reasoning, the only procedure binding the Town appears in

subsection (2), which requires "an annual estimate by . . . the

town chairperson." Once the estimate is made, the Town argues

it should be permitted to impose the tax by any reasonable

means. In the absence of an express directive by the

legislature exempting utility districts from Chapter 70, which

applies to all property taxes imposed in the state, we have no
authority to read one into the statute. "[W]hat a text chooses
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 No. 2022AP1233

not to do" is as significant "as its affirmative dispositions."

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretations of Legal Texts 57 (2012). For this reason,

"[w]e do not read words into a statute . . . rather, we

interpret the words the legislature actually enacted into law."

State v. Hinkle, 2019 WI 96, ¶24, 389 Wis. 2d 1, 935 N.W.2d 271

(quoting State v. Fitzgerald, 2019 WI 69, ¶30, 387 Wis. 2d 384,

929 N.W.2d 165).

¶21 Nothing in Wis. Stat. §66.0827 conflicts with Chapter

70. A statutory process to determine a budgetary estimate

differs from a statutory process to levy a tax. Subsection (2)

merely specifies how the Town may set the desired taxation

amount, pending approval by the Town's board. Nothing in the

text authorizes the imposition of that amount free from the

restrictions imposed under other statutes broadly applicable to

property taxation. The imposition of property taxes to fund a

public improvement under § 66.0827 must follow the procedures

that apply to all property taxes in this state. Because the
Town failed to follow those procedures, the TUF is unlawful.

B. Levy Limits

¶22 The law limits the amount by which municipalities may

increase property taxes. "[Wisconsin Stat. §] 66.0602, among

other provisions, includes a limit on the amount a governmental

subdivision may increase its property tax levy in a given year."

Brown County v. Brown Cnty. Taxpayers Ass'n., 2022 WI 13, ¶23,

400 Wis. 2d 781, 971 N.W.2d 491. The statute provides:

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 No. 2022AP1233

(2) Levy Limit.

(a) Except as provided . . . no political
subdivision may increase its levy in any year
by a percentage that exceeds the political
subdivision's valuation factor. . . . [T]he
base amount in any year, to which the limit
under this section applies, shall be the
actual levy for the immediately preceding
year.
§ 66.0602(2). The statute lists tax increases to which the levy

limit does not apply, including assuming responsibility for

municipal services, servicing municipal debt, bridge and culvert
repair, and payments to public libraries. § 66.0602(3). In

addition, if a municipality wants to exceed its levy limit under

subsection (2), the statute allows it to do so only with the

approval of the electorate:

(4) Referendum exception.

(a) A political subdivision may exceed the levy
increase limit under sub. (2) if its governing
body adopts a resolution to that effect and if
the resolution is approved in a
referendum. . . . The resolution shall
specify the proposed amount of increase in the
levy, the purpose for which the increase will
be used, and whether the proposed amount of
increase is for the next fiscal year only or
if it will apply on an ongoing basis.
§ 66.0602(4).

¶23 The statute expressly limits year-over-year increases

in municipal property tax levies to the amount of the valuation

factor, the "percentage change in the political

subdivision's . . . value due to new construction[,]"

effectively freezing property taxes on existing property within
the municipality. Wis. Stat. § 66.0602(1)(d). Although the

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 No. 2022AP1233

legislature affords town boards a measure of flexibility by

exempting certain types of spending from the levy limits, the

legislature allows town boards to raise their levy limits only

with the voters' consent through referendum.

¶24 An exception for spending on public improvements or

utility districts is not listed in Wis. Stat. § 66.0602(3). Nor

does Wis. Stat. § 66.0827 exempt funds raised to support a

utility district from municipal levy limits. We may not add

exceptions to the levy limit statute. See Wisconsin Legislature

v. Palm, 2020 WI 42, ¶30, 391 Wis. 2d 497, 942 N.W.2d 900

("[D]espite the detailed nature of the list, and the

Legislature's consideration of acts of DHS and its consideration

of 'orders,' no act or order of DHS pursuant to Wis. Stat.

§ 252.02 is exempted from the definition of 'Rule.'"). It is

the legislature's prerogative to choose which types of spending

are exempt from levy limits——and which are not. In the absence

of an applicable exception, the Town may not increase its

property tax levy beyond the limit allowed by law.
¶25 The Town did put a referendum before its residents,

but the voters rejected an increase in the levy limit under Wis.

Stat. § 66.0602(4). The option Town residents chose——imposing

the TUF——was offered as an alternative to raising the levy

limit. The Town does not argue the voters consented to an

increase in the levy limit.

¶26 The Town argues the taxation funding the utility

district supports a separate "governmental unit" to which it has
transferred responsibility to provide a public improvement;
15
 No. 2022AP1233

therefore, the taxation of the district should not be considered

part of the Town's property tax levy. The Town points to Wis.

Stat. § 66.0602(3)(a) as evidence the legislature contemplated

transferring responsibility to other governmental units, with

only a transfer of "services" requiring a reduction in the levy

limit. Because the utility district has assumed responsibility

for a public improvement, and not a "service" as that term is

used, the Town claims it may transfer responsibility for road

reconstruction without reducing its levy limit.

¶27 This strained interpretation of the levy limit statute

disregards the fact that levy limits apply to "political

subdivisions," which means a "city, village, town, or county."

Wis. Stat. § 66.0602(1)(c). Similarly, property taxes are

imposed by "taxation districts," which means a "town, village or

city in which general property taxes are levied and collected."

Wis. Stat. § 70.045. A utility district is not a taxation

district under the statutory definition, which means it may not

impose property taxes at all; only the municipality may do so.
Although a town may establish a utility district, the town

itself levies the taxes to fund the district; the town later

allocates the funds raised to the utility district. See Wis.

Stat. § 66.0827(1)(b) ("In towns, the town board may direct that

the cost of any convenience or public improvement provided in

the district and not paid for by special assessment be paid from

the district fund under sub. (2)."). Because the municipality

levies the taxes, state law subjects them to the municipality's
levy limit.
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 No. 2022AP1233

¶28 The Town also argues that if funds raised for a

utility district count against the municipality's levy limit,

the utility district statute fails to serve any purpose. Under

the Town's interpretation, a municipality would undertake the

administrative effort to establish a utility district apart from

the municipality only if district taxation is similarly separate

from municipal taxation. Otherwise, the Town argues, any public

improvement the utility district could fund may also be funded

by the municipality's general property tax levy directly.

¶29 The Town's argument fails to consider a utility

district comprising only a portion of a municipality. In this

case, the Town established the utility district to cover the

entire municipality, but a utility district could encompass some

subset of the municipality, with an increased property tax

imposed only on property within the district. The statutory

text supports this interpretation by referencing "taxation of

the property in the district." Wis. Stat. § 66.0827(2)

(emphasis added). If the municipality provides a public
improvement to only a portion of the properties in the

municipality, the utility district statute allows the town board

to apportion taxes among those properties to fund the

improvement rather than requiring the entire municipality to

share the cost. Localized apportionment changes the scope of

the taxation but does not transform the taxation into something

other than a property tax, nor does it exempt the taxation from

municipal levy limits.

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 No. 2022AP1233

¶30 Taxation through utility districts parallels the

statewide taxation schemes for stadium districts. Wisconsin

Stat. § 77.705 establishes a "baseball park district" spanning

several counties in the Milwaukee area, and Wis. Stat. § 77.706

establishes a "football stadium district" spanning several

counties near Green Bay. Under both statutes, the legislature

enacted special taxation of activity within the local

communities benefitting substantially from stadium projects,

rather than spreading the cost of those projects across the

entire state. In a similar fashion, municipalities may

apportion particular costs among properties within established

utility districts in which the municipality provides the public

improvement, rather than imposing costs on all properties within

the municipality.

¶31 Contrary to the Town's argument, applying the levy

limits to utility districts does not render the utility district

statute surplusage. The procedures established under Wis. Stat.

§ 66.0827 create a mechanism for funding public improvements
through taxation of property in the district rather than

taxation of all property in the municipality as a whole, and

nothing in the statute authorizes property taxation over and

above the levy limit. We hold the taxation of property funding

a utility district under Wis. Stat. § 66.0827 is subject to

municipal levy limits. Because the Town's referendum did not

ask the voters to authorize an increase of the levy limit to

fund the utility district, the Town unlawfully exceeded its levy
limit.
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IV. CONCLUSION

¶32 Wisconsin law prescribes certain procedures a

municipality must follow for funding public improvements. In

this case, the Town did not follow them. The imposition of

property taxes over and above the Town's levy limits requires

the consent of the voters within the municipality. Nothing in

the statutes permits the Town to bypass levy limits for the

purpose of imposing a TUF on property owners in the

municipality.

By the Court.——The judgment and order of the Circuit Court

are affirmed.

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 No. 2022AP1233.rgb

¶33 REBECCA GRASSL BRADLEY, J. (concurring). The court

resolves this dispute solely on statutory grounds but Wisconsin

Property Taxpayers, Inc. (WPT) also argues the Transportation

Utility Fee (TUF) violates the Uniformity Clause of the

Wisconsin Constitution, which guarantees "[t]he rule of taxation

shall be uniform[.]" Wis. Const. art. VIII, § 1. "This court

does not normally decide constitutional questions if the case

can be resolved on other grounds;" however, such "constitutional

avoidance" is prudential, not jurisdictional. Gabler v. Crime

Victims Rts. Bd., 2017 WI 67, ¶¶51–52, 376 Wis. 2d 147, 897

N.W.2d 384 (quoting Adams Outdoor Advert., Ltd. v. City of

Madison, 2006 WI 104, ¶91, 294 Wis. 2d 441, 717 N.W.2d 803;

Kollasch v. Adamany, 104 Wis. 2d 552, 561, 313 N.W.2d 47

(1981)). Sometimes the public's interest in a definitive answer

to an important constitutional question compels the court to

"recognize[] that the principle of constitutional avoidance

gives way[.]" See id., ¶52 (citing Buckingham v. State ex rel.

Killoran, 35 A.2d 903, 904–05 (1944); State ex rel. Bland v. St.
John, 13 So. 2d 161, 170 (1943)). For this reason, "the

greatest of our judges have not always followed [the

constitutional avoidance doctrine] as a rigid rule. Perhaps had

they done so the great opinion of Chief Justice [John] Marshall

in Marbury v. Madison would never have been written." Id.

(quoting Clay v. Sun Ins. Off. Ltd., 363 U.S. 207, 223 (1960)

(Black, J., dissenting)).

¶34 On the one hand, the public benefits from a definitive
interpretation of a constitutional provision, provided the

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analysis is rooted in the original meaning of the text, as

informed by history. See New York State Rifle & Pistol Ass'n,

Inc. v. Bruen, 597 U.S. __, 142 S. Ct. 2111, 2127 (2022).

Indeed, to a significant degree, the people of Wisconsin adopted

a two-tiered system of appellate review to enable this court to

focus on addressing important questions of law. Citizens Study

Comm. on Jud. Org., Report to Governor Patrick J. Lucey 78

(1973). Undoubtedly, this court has been "designated by the

constitution . . . as a law declaring court." See Cook v. Cook,

208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (quoting State ex

rel. La Crosse Trib. v. Cir. Ct. for La Crosse Cnty., 115

Wis. 2d 220, 229–30, 340 N.W.2d 460 (1983)). A rigid

constitutional avoidance doctrine would effectively override the

people's sovereign will and leave their liberties subject to

arbitrary and capricious government action.

¶35 On the other hand, an incorrect interpretation of

constitutional text is not easily undone. See Brown v. Allen,

344 U.S. 443, 540 (1953) (Jackson, J., concurring in the result)
("We are not final because we are infallible, but we are

infallible only because we are final."). For this reason, a

narrow decision is often preferred.

¶36 On balance, the court should have exercised its

discretion in this case to address WPT's uniformity claim. The

public's interest in a definitive answer to this constitutional

question, coupled with the interest of municipal governments in

understanding the parameters governing the creation of utility
districts, outweigh the justifications for constitutional

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avoidance. Whether TUFs survive constitutional scrutiny is of

great public importance, and it is likely to arise again as

municipalities throughout the state consider implementing them.

Addressing the merits in this case to resolve uncertainty going

forward would have been the best course. See Gabler, 376

Wis. 2d 147, ¶¶52–53 (choosing to address a constitutional

question because the question was of "great public importance");

James v. Heinrich, 2021 WI 58, n.18, 397 Wis. 2d 350, 960

N.W.2d 350 (lead op.) (same). Under well-established precedent,

the TUF violates the Uniformity Clause.

¶37 At its root, the clause serves "to protect the citizen

against unequal, and consequently unjust taxation." Gottlieb v.

City of Milwaukee, 33 Wis. 2d 408, 426, 147 N.W.2d 633 (1967)

(quoting Weeks v. City of Milwaukee, 10 Wis. 186, 201 (1860)).

The seminal case on the Uniformity Clause, Gottlieb, identified

several principles of uniformity:

1. For direct taxation of property, under the
uniformity rule there can be but one constitutional
class. 2. All within that class must be taxed on a
basis of equality so far as practicable and all
property taxed must bear its burden equally on an ad
valorem basis. 3. All property not included in that
class must be absolutely exempt from property
taxation. 4. Privilege taxes are not direct taxes on
property and are not subject to the uniformity rule.
5. While there can be no classification of property
for different rules or rates of property taxation, the
legislature can classify as between property that is
to be taxed and that which is to be wholly exempt, and
the test of such classification is reasonableness.
6. There can be variations in the mechanics of
property assessment or tax imposition so long as the
resulting taxation shall be borne with as nearly as
practicable equality on an ad valorem basis with other
taxable property.

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Id. at 423–24.

¶38 As indicated in Gottlieb, the Uniformity Clause

applies to property taxes——recurring direct taxes on real

estate——as opposed to transactional taxes such as those imposed

on income or sales. Columbia County v. Wis. Ret. Fund, 17

Wis. 2d 310, 325, 116 N.W.2d 142 (1962); Telemark Dev., Inc. v.

Dep't of Revenue, 218 Wis. 2d 809, 825–26, 581 N.W.2d 585 (Ct.

App. 1998) (citing State ex rel. Atwood v. Johnson, 170

Wis. 218, 242, 175 N.W. 589 (1919)). "[W]hen property is the

object of taxation, it should all alike, in proportion to its

value, contribute towards paying the expense of such benefits

and protection. These are plain and obvious propositions of

equity and justice, sustained as we believe by the very letter

and spirit of the constitution." Gottlieb, 33 Wis. 2d at 419

(quoting Knowlton v. Bd. of Supervisors of Rock Cnty., 9

Wis. 378 (*410), 388 (*420) (1859)). "Generally, this requires

that real property is taxed according to its fair market value."

Applegate-Bader Farm, LLC v. Wis. Dep't of Revenue, 2021 WI 26,
¶5, 396 Wis. 2d 69, 955 N.W.2d 793; Wis. Stat. § 70.32(1).

¶39 A core principle of uniformity requires all properties

subject to taxation to be taxed the same, in proportion to their

value. "Where a property tax is levied, there can be no

classification which interferes with substantial uniformity of

rate based on value." Elsner, 28 Wis. 2d at 107. "For the

direct method of taxing property, taxation on property so-

called, as to the rule of uniformity, there can be but one
constitutional class. All not included therein must be

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absolutely exempt from such taxation. All within such class

must be taxed based on a basis of equality so far as

practicable." Id. at 108 (quoting Chi. & N.W. Ry. v. State, 128

Wis. 553, 603–04, 108 N.W. 557 (1906)); see also Gottlieb, 33

Wis. 2d at 418–19; U.S. Oil Co. v. City of Milwaukee, 2011 WI

App 4, ¶23, 331 Wis. 2d 407, 794 N.W.2d 904 (citing State ex

rel. Hensel v. Town of Wilson, 55 Wis. 2d 101, 106, 197

N.W.2d 794 (1972)) ("[T]he method or mode of taxing real

property must be applied uniformly to all classes of property

within the tax district.").

¶40 The rule of uniformity has been held inapplicable to

special assessments, which are based on a determination of

specific tangible benefits conveyed to the property subject to

the assessment. Elsner, 28 Wis. 2d at 108. The assessment must

be "fair, equitable, and in proportion to the benefits accruing

to the property." CED Props., LLC v. City of Oshkosh, 2018 WI

24, ¶21, 380 Wis. 2d 399, 909 N.W.2d 136. The benefit attached

to special assessments may be narrow or broad in scope and, in
some circumstances, may be applied to all property in the

municipality. Duncan Dev. Corp v. Crestview Sanitary Dist., 22

Wis. 2d 258, 264–65, 125 N.W.2d 617 (1964) (concluding a

sanitary district that benefits the entire town may be financed

by special assessment because the degree of benefit varies

between different properties).

¶41 Applying these longstanding rules to the ordinance

before us, the TUF does not survive constitutional scrutiny. As
previously discussed, municipalities fund utility districts

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through taxation of property. As a property tax, this taxation

is subject to the rule of uniformity, and the funding must be

raised through ad valorem taxes on property in the district.

Within the district, there can be but one class of taxable

property, and all property within the class must be taxed at the

same rate.

¶42 As implemented, the TUF fails on several fronts.

First, by applying a fixed fee to all residential property in

the district, despite their varying fair market values, the TUF

imposes an impermissible variable rate of taxation on different

homes. Second, by applying a different methodology to

commercial properties based on estimated road use rather than

the value of those properties, the TUF creates multiple classes

of property.

¶43 The Town argues the TUF should be exempt from the rule

of uniformity because the calculation of tax takes into account

the benefit each property receives from access to the Town's

roads. In the Town's view, the TUF is sufficiently similar to a
special assessment, allowing taxation of properties

corresponding to the degree of benefit conveyed by the road

construction. This reasoning cannot be reconciled with the law.

¶44 As a preliminary matter, the utility district statute

draws a distinction between property taxes and special

assessments. Wisconsin Stat. § 66.0827(1)(b) permits public

improvements "not paid for by special assessment" to be "paid

from the district fund under sub. (2)." Under § 66.0827(2),
"[t]he fund of each utility district shall be provided by

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taxation of the property in the district[.]" The Town

identifies nothing in the law that would exempt this sort of

"taxation of the property" from the uniformity requirement

provided it comes close enough to resembling a special

assessment.

¶45 Even if the TUF were comparable to a special

assessment, it does not satisfy the legal characteristics of

one. "Public improvements usually fall into one of two

categories: general or local. A general improvement is one

that confers a general benefit, that is, a 'substantially equal

benefit and advantage' to the property of the whole

community[.]" Genrich v. City of Rice Lake, 2003 WI App 255,

¶8, 268 Wis. 2d 233, 673 N.W.2d 361 (citing Duncan, 22

Wis. 2d at 264). "In contrast, a local improvement, although

incidentally beneficial to the public at large, is primarily

made for the accommodation and convenience of inhabitants in a

particular locality and confers 'special benefits' to their

properties." Id.
¶46 A special benefit must have "the effect of furnishing

an uncommon advantage to a property differing in kind, rather

than in degree, from the benefits enjoyed by the general

public." CED Props., 380 Wis. 2d 399, ¶37. To claim specific

benefits are conveyed to a property by a public improvement, the

details and scope of the public improvement must be known, and

the specific benefits conveyed to particular properties

identified. In the absence of these details, it is not possible
to determine whether the tax is "fair, equitable, and in

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proportion" to the benefits conveyed to a given property as

uniformity requires. The Town established the TUF to raise

general funds for improving roads throughout the municipality on

an ongoing basis. While individual properties will benefit from

improvements to the streets on which they are located, the cost

of any improvement is not isolated to the properties located on

a particular street. As a result, the tax is not proportional

to the benefits received, which are enjoyed by the general

public.

¶47 Additionally, properties do not benefit equally from

each investment under the Town's road construction plan. In

Duncan, a new water tower was constructed that increased water

pressure and capacity across the entire district simultaneously.

22 Wis. 2d at 264. In contrast, Town roads will be

reconstructed piece by piece over many years. Each piece of

road will substantially benefit certain properties but bring

little to no benefit to others in the district. The road

improvements the Town would fund with the TUF do not share the
same characteristics as improvements funded through a special

assessment.

¶48 Finally, a special assessment is calculated based on

the benefit conveyed to the property by the public improvement

itself. For example, when a sidewalk is added to a specific

street, the special assessment to fund it reflects the resulting

benefit to properties on that street. In the case of the TUF,

the tax is based not on the individualized benefits of the
particular improvement, but on estimated use of the

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municipality's roads. The TUF does not depend upon whether the

roads a property actually uses are improved or not. A special

assessment may not be imposed for access to existing public

infrastructure.

¶49 Unlike a special assessment imposed one time to fund a

particular improvement, The Town would impose the TUF on a

recurring basis to maintain the Town's roads indefinitely. When

a municipality undertakes ongoing road maintenance, it must be

funded through its general property tax levy. Because all

properties in the Town benefit from having adequate

transportation infrastructure, all property owners must

uniformly bear the costs of maintaining it, in proportion to the

value of their properties in the district. The Wisconsin

Constitution does not permit property taxation based on factors

other than property value, unless the prerequisites for a

special assessment are met. As the Town concedes, the TUF is

not a special assessment. The TUF is a tax on property, which

must be based on market value in order to comply with the
Uniformity Clause. Because the TUF is based on the estimated

number of vehicle trips generated by each property rather than

the property's value, the TUF violates the Uniformity Clause.

For the benefit of the public, the court should have said so.

¶50 I am authorized to state that Justice PATIENCE DRAKE

ROGGENSACK joins this concurrence.

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