(dissenting). The assessment of real property is governed by statute:
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 therefor at private sale.
Section 70.32(1), Stats, (emphasis added). As we recently recognized:
"Full value," as that term is used in section 70.32(1), is "fair market value," which is "the amount [a parcel of property] will sell for upon arms-length negotiation in the open market, between an owner willing but not obliged to sell, and a buyer willing but not obliged to buy." See State ex rel. Mitchell Aero, Inc. v. Board of Review, 74 Wis. 2d 268, 277, 246 N.W.2d 521, 526 (1976); 1 Property Assessment Manual for Wisconsin Assessors 7-3 (Rev. 12/87).
State ex rel. N/S Associates v. Board of Review, 164 Wis. 2d 31, 42-43, 473 N.W.2d 554, 558 (Ct. App. 1991). Thus, for example, the assessment of a country-club facility had to take into account that the property "could not be sold as a golf course" but, rather, as farm land. State ex rel. Oshkosh Country Club v. Petrick, 172 Wis. 82, 84, 178 N.W. 251, 252 (1920). By the same token, assessment of private property subject to "retained mineral rights, timber rights or an easement or any similar interest in such real estate" held by "a Wisconsin governmental unit," sec. 70.32(1), or restrictions on land use imposed by "zoning ordinance," "conservation easement," "conservation restriction under an agreement with the federal government," or under ch. 91, Stats. *157(farmland preservation), sec. 70.32(lg), must exclude the value of the restrictions or retained interests.1
It is undisputed that the artificially low rents that Metropolitan Holding Company must charge have significantly depressed the price for which the property would sell on the open market in an arm's-length trans*158action. Yet, the Board of Review has disregarded this depressed actual "fair market value" and has assessed the property at a hypothetical value: what the property would bring in an arm's-length transaction if Metropolitan Holding were able to charge prevailing free-market rates. As justification, the Board of Review and the majority rely on the Property Assessment Manual for Wisconsin Assessors.
The Property Assessment Manual for Wisconsin Assessors is published by the Department of Revenue pursuant to section 73.03(2a), Stats. The manual's purpose is to "discuss and illustrate accepted assessment methods, techniques and practices with a view to more nearly uniform and more consistent assessments of property at the local level." Ibid. The manual is to "reflect advances in the science of assessment, court decisions concerning assessment practices, costs, and statistical and other information deemed valuable to local assessors by the department." Ibid. Since "[n]o agency may promulgate a rule which conflicts with state law," sec. 227.10(2), Stats.; see also Department of Revenue v. Howick, 100 Wis. 2d 274, 280-281, 303 N.W.2d 381, 384 (1981), neither the department nor the manual may amend or modify the command of section 70.32(1), Stats., that real property in Wisconsin be assessed at its actual fair market value. Accordingly, the manual's directive that " [subsidized housing must be valued according to the value it would command if it were free and clear of encumbrances" so that " [w]hen using the income approach for the valuation of subsidized housing, market rents must be used, regardless of whether the contract rents are above or below market rent," 1 Assessment Manual at 9-25, withers in face of the statute. See Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134 (1936) (A regulation that creates "a *159rule out of harmony with the statute, is a mere nullity.") (quoted with approval in Plain v. Harder, 268 Wis. 507, 511, 68 N.W.2d 47, 50 (1955) (rule interpreting statutory phrase "mercantile or manufacturing business" as encompassing "construction" contracts void)). Since it is undisputed that no buyer who was not obliged to buy would purchase the property for its $4,483 million assessment, that assessment does not reflect the property's fair market value. By permitting the Assessment Manual to override section 70.32(1), the Board of Review failed to act " 'according to law.' " See State ex rel. Geipel v. City of Milwaukee, 68 Wis. 2d 726, 731, 229 N.W.2d 585, 588 (1975) (citation omitted). Accordingly, we must reverse. See ibid.2 I respectfully dissent.
Section 70.32(1), Stats., was amended, effective January 1, 1992, as follows:
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 therefor at private sale. In determining the value, the assessor shall consider, as lu each piece, its'advantage or disadvantage uf location, quality uf soil, quantity of standing timber; water privileges, mines, minerals, quarries, or other valuable deposits knuwn to be available therein, and their value: but the "fact that the e&teut and value uf minerals or other valuable deposits ill'any parcel of land are unascertained shall not preclude the assessor frum affixing' to such parcel the value which cunlthiidinarily be obtained therefor at private sale. If on the assessment date occurring in 1957 or in any year thereafter any person other than a governmental unit of Wisconsin owns real estate in which a1 Wisconsin governmental unit faas-retained mineral rights, timber rights or an easement ~or any similar interest in such real estate,"the value of any such retained right shall be eliminated in determining the assessable value uf such property, and such retained interest shall be-excepted in the assessment description of such laud and in auy notice, tax certificate oirtax deed following from any such assessment 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.
1991 Wis. Act 39 secs. 1722, 9449(30). The amendment codifies accepted assessment practice and recognizes that "full value" is best established by a "recent arm's-length sale," which would, per force, account for any enhancement or diminution of value as the result of the factors deleted from the statutory language.
We need not therefore consider whether a statute that grants tax-assessment relief to some but not all property subject to government-imposed encumbrances (see sec. 70.32(1) & (lg), Stats.) violates the "uniformity clause" of the Wisconsin Constitution, art. VIII, sec. 1.