                                                         2018 WI 63

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP1858
COMPLETE TITLE:         Wisconsin Three, LLC, Voters with Facts, Leah
                        Anderson, David Wood, Jo Ann Hoeppner Cruz,
                        Maryjo Cohen, Janice Wnukowski, Rachel Mantik,
                        Pure Savage Enterprises, LLC, Paul Zank, Judy
                        Olson, Janeway Riley, J. Peter Bartl and Dorothy
                        Westermann, Dewloc, LLC, Cynthia Burton, Corinne
                        Charlson, Christine Webster, 215 Farwell LLC,
                                   Plaintiffs-Appellants-Petitioners,
                             v.
                        City of Eau Claire and City of Eau Claire Joint
                        Review Board,
                                   Defendants-Respondents.
                           REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 376 Wis. 2d 479, 899 N.W.2d 706
                               PDC No: 2017 WI App 35 - Published

OPINION FILED:          June 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 23, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Eau Claire
   JUDGE:               Paul J. Lenz

JUSTICES:
   CONCURRED:
   DISSENTED:           R.G. BRADLEY, J., and KELLY, J., dissent
                        (opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:


       For        the   plaintiffs-appellants-petitioners,   there    were
briefs filed by Thomas C. Kamenick, Richard M. Esenberg, Brian
McGrath, and Wisconsin Institute for Law & Liberty, Milwaukee.
There was an oral argument by Richard M. Esenberg.


       For the defendants-respondents, there was a brief filed by
Douglas Hoffer, assistant city attorney, and Stephen C. Nick,
city attorney, with whom on the brief was Remzy D. Bitar and
Arenz, Molter, Macy, Riffle & Larson S.C., Waukesha. There was
an oral argument by Douglas Hoffer.


       An amicus curiae brief was filed on behalf of Eau Claire
Area   Chamber   of   Commerce,   Inc.   by   Ryan    J.   Steffes   and   Weld
Riley, S.C., Eau Claire.


       An amicus curiae brief was filed on behalf of Wisconsin
REALTORS   Association,      NAIOP-WI,    and   the    Wisconsin     Economic
Development Association by Thomas D. Larson and The Wisconsin
REALTORS Association, Madison.


       An amicus curiae brief was filed on behalf of League of
Wisconsin Municipalities, City of Milwaukee, City of Madison,
and Wisconsin Towns Association by Claire Silverman and League
of Wisconsin Municipalities, Madison, with whom on the brief
were Mary L. Schanning, deputy city attorney of Milwaukee; Gregg
C.   Hagopian,   assistant   city   attorney    of    Milwaukee;     Grant   F.
Langley, city attorney of Milwaukee; Michael May, city attorney
of Madison; and Rick Manthe and Wisconsin Towns Association,
Shawano.


       An amicus curiae brief was filed on behalf of the State of
Wisconsin by Misha Tseytlin, solicitor general, Brad D. Schimel,
attorney general, and Kevin M. LeRoy, deputy solicitor general.
There was an oral argument by Misha Tseytlin.




                                     2
                                                                      2018 WI 63
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.   2015AP1858
(L.C. No.   2015CV175)

STATE OF WISCONSIN                        :            IN SUPREME COURT

Voters with Facts, Pure Savage Enterprises,
LLC, Wisconsin Three, LLC, 215 Farwell LLC,
Dewloc, LLC, Leah Anderson, J. Peter Bartl,
Cynthia Burton, Corinne Charlson, Maryjo Cohen,
Jo Ann Hoeppner Cruz, Rachel Mantik, Judy
Olson, Janeway Riley, Christine Webster,
Dorothy Westermann, Janice Wnukowski, David                      FILED
Wood and Paul Zank,
                                                               JUN 6, 2018
            Plaintiffs-Appellants-Petitioners,
                                                               Sheila T. Reiff
      v.                                                    Clerk of Supreme Court


City of Eau Claire and City of Eau Claire Joint
Review Board,

            Defendants-Respondents.




      REVIEW of a decision of the Court of Appeals.              Affirmed and
cause remanded.



      ¶1    ANNETTE KINGSLAND ZIEGLER, J.          This case arises out

of the approval of a redevelopment project in the City of Eau

Claire (the "City"), which relied in part on funds derived from

two   tax   incremental   districts   ("TIDs"):     TID    8    and    TID    10.
                                                                              No.    2015AP1858



Voters with Facts, et al.1 ("Plaintiffs") challenged the legality

of the City's actions with regard to these TIDs.                              We review here

a published decision of the court of appeals, Voters with Facts

v. City of Eau Claire, 2017 WI App 35, 376 Wis. 2d 479, 899

N.W.2d 706 [hereinafter Voters], affirming the Eau Claire County

circuit         court's2      dismissal      of     Plaintiffs'         complaint       as   to

declaratory           judgment,       but    reversing        and       remanding       as   to

certiorari review.

        ¶2      The expansion or creation of TIDs is limited to one of

four purposes: addressing blighted areas, urban rehabilitation

or    conservation,           industrial     development,          or   the    promotion     of

mixed-use development.                Wis. Stat. § 66.1105(4)(gm)4.a. (2013–

14).3        Where a municipality seeks to expand or create a TID, it

must resolve to do so for one of these purposes.                              Id.    Here, the

City's declared purpose was to address blight, and, to support

that purpose, the City's local legislative body had to find,

among other things, that "[n]ot less than 50%, by area, of the

real        property    within    the      district    is . . . a         blighted      area."
Id.         A   TID    must    also   be    approved     by    a    joint      review    board

("JRB"),        which    must    find,      among     other   things,         that    "in    its

        1
       There are 19 plaintiffs total: 4 LLCs, 14 individuals, and
Voters with Facts——"an unincorporated association of grassroots
citizen volunteers and Eau Claire taxpayers who question the
propriety of the proposed developments."
        2
            The Honorable Paul J. Lenz presided.
        3
       All references to the Wisconsin Statutes are to the 2013-
14 version unless otherwise noted.


                                               2
                                                                           No.    2015AP1858



judgment,        the    development . . . would            not    occur     without       the

creation of a [TID]."                § 66.1105(4m)(b)2.           In their complaint,

Plaintiffs did not dispute that the appropriate bodies stated

the appropriate findings, but rather alleged that the findings

were    "neither            supported    by    record     evidence     nor       factually

correct."         Additionally,          Plaintiffs      alleged     that    the    City's

disbursement of cash grants to the developer for "project costs"

was    unlawful        because    it    amounted    to    an     unconstitutional         tax

rebate and/or because the developer could apply the cash grants

to reimburse itself for already-incurred costs of demolishing

historic buildings, contrary to § 66.1105(2)(f)1.a.                              Plaintiffs

sought declaratory relief on these claims, but argued in the

alternative that, under certiorari review, the City had acted

outside the scope of its lawful authority.

       ¶3    The       circuit       court     dismissed       Plaintiffs'       complaint

because     it    found       that   they     lacked     standing.        The     court   of

appeals affirmed in part and reversed in part, remanding with

instruction.           Voters, 376 Wis. 2d 479, ¶¶2, 4.                    The court of
appeals affirmed the circuit court's dismissal of Plaintiffs'

complaint    as        to    declaratory      judgment     because    it    agreed     that

Plaintiffs lacked standing.                   See id., ¶26 (findings); id., ¶39

(project costs); id., ¶48 (uniformity clause).                        It reversed and

remanded    for        certiorari       review,    however,      because    the     circuit

court had not directly addressed that claim.                      Id., ¶¶35, 60.

       ¶4    On review, we consider two issues.                    First, we consider

whether dismissal of Plaintiffs' declaratory judgment claims was
proper.     We conclude that it was, because Plaintiffs have failed
                                               3
                                                                            No.    2015AP1858



to state claims upon which relief can be granted: the first and

second counts fail because the City Common Council's findings of

blight       and    the    JRB's    "but    for"      assertions        are   legislative

determinations that do not present justiciable issues of fact or

law; the third count fails because it does not allege facts

which plausibly establish that the City's cash grant for TID 10

was    used    to    reimburse      the    developer's         costs    associated         with

demolishing         historic       buildings;       and    the     fourth     count       fails

because it does not allege facts which plausibly establish that

cash       grants    are    intended      or   used       to   pay     owner-developers'

property taxes.

       ¶5      Second,      we     consider        whether     certiorari         review     is

appropriate.         We conclude that it is, because certiorari review

is the appropriate mechanism for a court to test the validity of

a legislative determination.                   The record before us, however,

does not contain a municipal record sufficient to enable our

review.        Accordingly,         we    remand      to     the    circuit       court    for

certiorari review of Plaintiffs' first and second claims.
       ¶6      Thus, we affirm the decision of the court of appeals

on other grounds.

                     I.    FACTUAL AND PROCEDURAL BACKGROUND
       ¶7      As noted above, this case arises out of the approval

of     a    redevelopment        project       (the       "Confluence       Project")       in

downtown Eau Claire.               The Confluence Project relied in part on

tax    incremental         financing       ("TIF")        derived      from   the     City's
expansion of the already-existing TID 8                            and its creation of


                                               4
                                                               No.   2015AP1858



TID 10,4   both   of   which   were   endorsed     by   the   City   Planning

Commission on August 18, 2014.

     ¶8    On September 9, 2014, the City Common Council adopted

a   resolution    approving    the    expansion    of   TID    8.     In   its

resolution, the City Common Council stated that "not less than

50%, by area, of the real property within the amended boundary

area of the District is a 'blighted area' and is in need of

'rehabilitation or conservation' within the meaning of Section

66.1105(2)(a)1 of the Wisconsin Statutes."               On September 26,

2014, the JRB approved the resolution.            In its approval, the JRB

stated that "the development described in the Amendment [to TID

#8] would not occur without the amendment."5                  (Alteration in

original.)

     ¶9    On October 14, 2014, the City Common Council adopted a

resolution approving the creation of TID 10.            In its resolution,

     4
       When a city approves tax incremental financing, the
property owners within the boundaries of the tax incremental
district continue to pay the same rate of property tax, and the
city allocates a portion of that tax revenue to finance the
approved development project.       As property values rise——
presumably due to the public improvements financed by the TIDs——
property owners will pay a higher amount of property tax
commensurate with the incremental increase in value of their
property.   This value increment——the difference between taxes
paid before and taxes paid as property values rise——is what the
City ultimately uses to pay for the public improvements.     See
City of Hartford v. Kirley, 172 Wis. 2d 191, 198-200, 493
N.W.2d 45 (1992).
     5
       Neither the City Common Council's resolution approving the
expansion of TID 8, nor the JRB's approval of that resolution,
are in the record, but the Plaintiffs' complaint alleges that
these statements were contained in those documents.


                                      5
                                                                  No.    2015AP1858



the City Common Council stated that "not less than 50%, by area,

of the real property within the amended boundary area of the

District is a 'blighted area' and is in need of 'rehabilitation

or conservation' within the meaning of Section 66.1105(2)(a)1 of

the Wisconsin Statutes."         On October 22, 2014, the JRB approved

the   resolution.     In   its   approval,      the   JRB     stated    that    "the

development    described    in    the   Project       Plan    would     not    occur

without the creation [presumably of TID #10]."6                  (Alteration in

original.)

      ¶10   Open public hearings were held prior to the decisions

of the Planning Commission and the City Common Council,7 at which

"numerous    city   residents,    including      many    of    the     Plaintiffs,

spoke out against the TIDs."                On March 12, 2015, Plaintiffs

filed a complaint seeking declaratory relief on four claims.

      ¶11   The first and second claims (regarding TID 8 and TID

10, respectively) challenged the validity of the City's findings

of blight under Wis. Stat. § 66.1105(4)(gm)4.a. and the JRB's

"but for" findings under Wis. Stat. § 66.1105(4m)(b)2.                          With
regard to the City's findings, Plaintiffs alleged that the City

was "required to articulate the basis for its finding and the

evidence of record that supports its action," and that, although

      6
       Neither the City Common Council's resolution approving the
creation of TID 10, nor the JRB's approval of that resolution,
are in the record, but the Plaintiffs' complaint alleges that
these statements were contained in those documents.
      7
       The minutes from these public hearings are not in the
record before the court.


                                        6
                                                                 No.        2015AP1858



the City's resolution "contains a conclusory assertion that 'not

less than 50%, by area, of the real property within the amended

boundary area of the [TID] is a "blighted area,"'" the City "did

not articulate the factual basis for this conclusory statement

and the record before the [City] contains no evidence to support

its assertion."       With regard to the JRB's findings, Plaintiffs

alleged that the JRB could not have "reasonably concluded on the

record evidence that the development would not occur in the

[TID]    without    tax    incremental       financing."       Plaintiffs        thus

argued that the TIDs lacked a public purpose in violation of the

public    purpose    doctrine    and    sought     a   declaration      that      the

authorization and implementation of the TIDs was "invalid, void,

and of no force and effect."

    ¶12      The third claim challenged the validity of the City's

disbursement of cash grants pursuant to the project plan for

TID 10.    Plaintiffs alleged that "the development agreement does

not clearly provide that the [] developer may not use the lump

sum payments to reimburse itself for the costs of demolishing
[historic]     properties,"     and      that,     "[g]iven     the     lump      sum

character of the developer payments, there is in fact no way to

assure [how] the payments have been used."                     Plaintiffs thus

argued     that      the     cash      grants       violated         Wis.      Stat.

§ 66.1105(2)(f)1.a.——which          excludes     "destruction    of    [historic]

properties" from the definition of "project costs"——because the

project     plan     "unlawfully       reimburses       the     developer         for

[demolishing      historic   properties],"       and   sought    a    declaration


                                         7
                                                                          No.    2015AP1858



that the implementation of TID 10 was "invalid, void, and of no

force and effect."

      ¶13   The fourth claim also challenged the validity of the

City's disbursements of cash grants pursuant to the project plan

for TID 10.8         Plaintiffs alleged that the cash grants function

"as [a] tax rebate or tax credit" because the developer, who is

also the "owner of taxable property[,] is given substantial cash

payments,      effectively      reimbursing            the    owner[-developer]        (in

advance) for all or a part of the taxes paid on its property."

Plaintiffs      thus      argued      that    the      cash    grants      violate     the

Uniformity     Clause      of   the    Wisconsin        Constitution       because     the

owner-developer "is being taxed at a more favorable rate than an

owner of identically-assessed property elsewhere in Eau Claire,"

and   sought     a    declaration      that      the    creation     of    TID    10   was

"unlawful, void, and of no force and effect."

      ¶14   Plaintiffs          asserted         certiorari         review        as    an

alternative basis for relief, "[i]f for any reason [they] are

not   entitled       to   declaratory        relief."         On   this   fifth    claim,
Plaintiffs argue that, "[f]or the reasons set forth above, the




      8
       The complaint is not clear as to whether this challenge is
raised against both TIDs or just TID 10.     The heading for the
fourth claim states that it seeks "Declaratory Judgment relating
to both TIDs," but the final paragraph requests only that "the
Resolution creating TID #10 [be declared] . . . unlawful, void,
and of no force and effect." Because we conclude that the claim
fails to state a claim upon which relief can be granted, this
discrepancy in the record does not affect our analysis.


                                             8
                                                                               No.       2015AP1858



[actions]       of     the     [City        and        the     JRB]     [were]       arbitrary,

capricious, and outside the scope of their lawful authority."

      ¶15   On April 9, 2015, the City filed its answer, denying

in    relevant       part     Plaintiffs'             allegations.           The     City     also

asserted    a        number    of     affirmative            defenses,       including        that

"Plaintiffs' complaint contains claims which may fail to state a

claim upon which relief may be granted," and that "[o]ne or more

plaintiffs may lack capacity to sue or standing and one or more

of the claims may be unripe or moot."                         On May 22, 2015, the City

filed a motion to dismiss, which more fully articulated its

challenges to the viability of Plaintiffs' complaint.

      ¶16   In       general,       the    City       argued    that    Plaintiffs          lacked

standing because the claims were highly speculative, did not

allege    any    direct       pecuniary         loss,     and    were    not     ripe.        More

specifically, the City argued that Plaintiffs' first and second

claims fail because they do not allege "that there can be no

benefit     to        the     public . . . which                 the     Plaintiffs           must

demonstrate      to     prove    a    lack      of     public     purpose";         Plaintiffs'
third claim fails because the "'anything's possible' allegations

are   not   sufficient"         and       are   moot     in     any    event    "because       the

buildings       in     question       have        already       been     demolished";          and

Plaintiffs'          fourth     claim       fails        because        it     is    a      facial

constitutional challenge to a law that has already been held to

be constitutional.            Additionally, even assuming Plaintiffs have

standing, the City argued that declaratory judgment was not the




                                                  9
                                                                            No.    2015AP1858



proper method for reviewing the creation or expansion of TIDs,

which is limited to certiorari.9

       ¶17     The circuit court agreed.                   On August 17, 2015, the

circuit court ruled from the bench and dismissed Plaintiffs'

complaint for lack of standing under the declaratory judgment

standard.10                It      concluded           that       "none           of       the

plaintiffs . . . allege             a     legally          protect[a]ble          interest"

because they "allege no particular pecuniary loss attributable

to   them     except   a     speculative       possibilit[y]         that    general      tax

revenues       could    be      affected."           The    circuit     court          further

concluded that the issue was not ripe because the alleged harms

were       highly   speculative,        and   because      it   concluded         that   "the

determination of blight is legislative and is, in essence, a

political       question."         In     this     regard,      it    determined         that

"[t]here is a lack of judicially discoverable and manageable

standards," it is impossible to decide the matter "without an

initial policy determination of a kind that is clearly not for

judicial        discretion,"        and       "the      court's       undertaking           an
independent resolution of this matter would express a lack of

       9
       On June 22, 2015, Plaintiffs filed their response.  On
July 2, 2015, the City filed its reply. On July 16, 2015, the
circuit court held a hearing on the motion.
       10
       There are four prerequisites a party must satisfy to seek
declaratory relief: (1) a justiciable controversy must exist;
(2) the controversy must be between persons whose interests are
adverse; (3) the plaintiff must have a legally protectable
interest in the controversy; and (4) the issue must be ripe for
determination. See Loy v. Bunderson, 107 Wis. 2d 400, 410, 320
N.W.2d 175 (1982).


                                              10
                                                                            No.    2015AP1858



respect      due    to     coordinate         branches       of     government."           On

August 28,         2015,       the     circuit       court's        order         dismissing

Plaintiffs' complaint was filed.                   Plaintiffs appealed.

       ¶18    On May 31, 2017, the court of appeals affirmed in part

and   reversed      in     part,      remanding      for    further        proceedings     on

Plaintiffs' certiorari claim.                 Voters, 376 Wis. 2d 479, ¶¶2, 4.

The court of appeals affirmed the circuit court's dismissal of

Plaintiffs' first four claims because it agreed that Plaintiffs

lacked taxpayer standing.               In this regard, it stated that "the

alleged      unlawful      expenditure        of    public        funds,    if    otherwise

sufficient to survive a motion to dismiss,                           is     sufficient to

support taxpayer standing."              Id., ¶17 (citing S.D. Realty Co. v.

Sewerage Comm'n of City of Milwaukee, 15 Wis. 2d 15, 22, 112

N.W.2d 177     (1961)).          It    thus     concluded        that,    "[a]scertaining

whether [Plaintiffs have] standing . . . turns on whether those

claims    adequately        allege      the   unlawful       expenditure          of   public

funds."      Id., ¶18.

       ¶19    As   to    the    first     and      second    claims,        the    court   of
appeals concluded that Plaintiffs did not adequately plead the

unlawful expenditure of public funds because the plain language

of    Wis.    Stat.      §§ 66.1105(4)(gm)4.a.             and     66.1105(4m)(b)2.        is

procedural, not substantive, and therefore requires only that

the City and the JRB "assert the requisite findings."                             Id., ¶25.

Thus, "even assuming a neutral factfinder would conclude there

was an inadequate factual basis . . . [that] alone do[es] not

support      [Plaintiffs']       allegation         that    those    bodies       failed   to
follow the statutory procedure for creating a TID."                               Id., ¶26.
                                              11
                                                                           No.     2015AP1858



The court of appeals concluded, however, that these findings11

may be challenged through certiorari review, id., ¶¶28 n.9, 35,

and that, if the findings were "without a substantial basis in

the evidence, or [were] arbitrary and unreasonable (or otherwise

contrary to law), then the creation/amendment of the TIDs [was]

not only an unlawful act, but also unconstitutional as lacking a

valid       public    purpose,"    id.,      ¶59.      It    thus    remanded       to   the

circuit court for certiorari review of the City's and the JRB's

findings.12         Id., ¶60.

       ¶20     As to the third claim, the court of appeals concluded

that        Plaintiffs     did     not      adequately        plead        the     unlawful

expenditure of public funds because the "sum total" of their

allegations          "fail[ed]    to   allege       that     anything      unlawful      has

occurred,       or    is   even   likely      to    occur."        Id.,     ¶38.      Thus,

Plaintiffs' "alleged injury is far too speculative to create a

plausible claim for relief."                Id., ¶39.

       ¶21     As     to   the    fourth      claim,        the    court     of     appeals

concluded, as a preliminary matter, that Plaintiffs' allegations
"constitute[] a facial challenge to the constitutional validity

of     payments       authorized       by    Wis.    Stat.        § 66.1105(2)(f)2.d."

       11
       The court of appeals agreed with the circuit court that
these findings are acts of legislative discretion. Voters, 2017
WI App 35, ¶30, 376 Wis. 2d 479, 899 N.W.2d 706.
       12
       The court of appeals noted that "[t]ypically, this court
determines for itself whether a plaintiff has adequately stated
a claim for certiorari relief and whether the plaintiff should
prevail on the merits of his or her claim," but remanded because
the parties agreed that remand was more appropriate. Id., ¶60.


                                             12
                                                                         No.   2015AP1858



because Plaintiffs assert that "in all instances, payments from

a   city    to     an    authorized      entity    'effectively        reimburs[e]      the

owner (in advance) for all or a part of the taxes paid on its

property.'"        Id., ¶47.         The court of appeals then concluded that

Plaintiffs did not adequately plead the unlawful expenditure of

public funds because limiting the cash grants to reimbursement

for "project costs" is a "significant and material restriction

[that]      compels       us   to    conclude     this    case    presents     no     issue

regarding uniformity that has not already been settled by our

supreme court."               Id., ¶54 (citing Sigma Tau Gamma Fraternity

House      Corp.    v.    City      of   Menomonie,      93   Wis. 2d 392,     412,     288

N.W.2d 85 (1980), and State ex rel. La Follette v. Torphy, 85

Wis. 2d 94, 108, 270 N.W.2d 187 (1978)).                         In this regard, the

court of appeals noted that Plaintiffs' "characterization of the

payments as unlawful tax rebates or credits . . . are mere legal

conclusions, which we need not accept."                        Id. (citing Data Key

Partners      v.        Permira     Advisers      LLC,    2014    WI    86,    ¶18,    356

Wis. 2d 665,            849    N.W.2d 693).           Thus,      it    concluded      that
Plaintiffs have "failed to state a cognizable claim."                          Id., ¶48.

Plaintiffs petitioned for review.

      ¶22     On October 2, 2017, we granted Plaintiffs' petition

for review.13




      13
       At the same time that the petition for review was
granted, motions for discovery and for disqualification of
Justice Kelly were denied.


                                             13
                                                                            No.    2015AP1858


                               II.    STANDARD OF REVIEW
       ¶23    "Whether a complaint states a claim upon which relief

can be granted is a question of law for our independent review."

Data Key Partners, 356 Wis. 2d 665, ¶17.

                                     III.       ANALYSIS
       ¶24    On review, we consider two issues.                      First, we consider

whether dismissal of Plaintiffs' declaratory judgment claims was

proper.       We conclude that it was, because Plaintiffs have failed

to state claims upon which relief can be granted: the first and
second counts fail because the City Common Council's findings of

blight    and       the    JRB's     "but    for"     assertions         are   legislative

determinations that do not present justiciable issues of fact or

law; the third count fails because it does not allege facts

which plausibly establish that the City's cash grant for TID 10

was    used    to    reimburse       the    developer's         costs    associated        with

demolishing         historic       buildings;        and    the    fourth      count      fails

because it does not allege facts which plausibly establish that

cash    grants       are    intended       or    used      to   pay     owner-developers'

property taxes.
       ¶25    Second,       we     consider      whether        certiorari        review     is

appropriate.         We conclude that it is, because certiorari review

is the appropriate mechanism for a court to test the validity of

a legislative determination.                    The record before us, however,

does not contain a municipal record sufficient to enable our

review.        Accordingly,          we    remand     to     the   circuit        court    for

certiorari review of Plaintiffs' first and second claims.



                                                14
                                                                     No.    2015AP1858


                                   A.    Standing
    ¶26        The circuit court's and court of appeals' decisions

relied on standing as grounds for dismissal.                      Here, we analyze

Plaintiffs' complaint to determine whether it states a claim

upon which relief may be granted.                  See State v. Castillo, 213

Wis. 2d 488,      492,    570    N.W.2d 44       (1997)    ("An   appellate     court

should decide cases on the narrowest possible grounds.").                             In

doing    so,     we   assume    without        deciding    that    Plaintiffs        had

standing to bring their claims.

                         B.    Failure To State A Claim
    ¶27        "A motion to dismiss for failure to state a claim

tests    the    legal    sufficiency      of     the     complaint."       Data      Key

Partners,       356   Wis. 2d 665,       ¶19.       "[T]he    sufficiency       of    a

complaint depends on [the] substantive law that underlies the

claim made because it is the substantive law that drives what

facts    must    be   pled."      Id.,    ¶31.      In    determining      whether     a

complaint sufficiently alleges a claim upon which relief may be

granted,14 we accept as true all facts pled and the reasonable




    14
       This standard is derived from Wis. Stat.                        § 802.02(1),
which states, in relevant part, as follows:

         Contents    of    pleadings.     A    pleading   or
    supplemental pleading that sets forth a claim for
    relief,   whether   an    original or   amended   claim,
    counterclaim, cross claim or 3rd-party claim, shall
    contain all of the following:

                                                                        (continued)
                                          15
                                                                     No.     2015AP1858



inferences therefrom; we do not, however, accept as true any

legal     conclusions       stated     in        the   complaint.          Id.,   ¶19.

"Therefore, it is important for a court considering a motion to

dismiss    to       accurately    distinguish      pleaded   facts   from     pleaded

legal conclusions."         Id.

          1.    Findings under Wis. Stat. § 66.1105(4)(gm)4.a.
                            a.    The substantive law

    ¶28        Wisconsin Stat. § 66.1105(4) states, in relevant part,

as follows:

         Creation   of             tax   incremental districts  and
    approval of project            plans. In order to implement the
    provisions of this             section, the following steps and
    plans are required:           . . .

         (gm) Adoption by the local legislative body of a
    resolution which: . . .

               4.    Contains findings that:

         a. Not less than 50%, by area, of the real
    property within the district is at least one of the
    following: a blighted area . . . .
§ 66.1105(4)(gm)4.a.             The term "blighted area" is defined, in
relevant part, as follows:

         An area, including a slum area, in which the
    structures, buildings or improvements, which by reason
    of dilapidation, deterioration, age or obsolescence,


         (a) A short and plain statement of the claim,
    identifying the transaction or occurrence or series of
    transactions or occurrences out of which the claim
    arises and showing that the pleader is entitled to
    relief.

§ 802.02(1)(a).


                                            16
                                                         No.   2015AP1858


    inadequate provision for ventilation, light, air,
    sanitation, or open spaces, high density of population
    and overcrowding, or the existence of conditions which
    endanger life or property by fire and other causes, or
    any combination of these factors is conducive to ill
    health, transmission of disease, infant mortality,
    juvenile delinquency, or crime, and is detrimental to
    the public health, safety, morals or welfare.
§ 66.1105(2)(ae)1.a.

          b.     The allegations in Plaintiffs' complaint
    ¶29   With    regard   to   this    claim,   Plaintiffs'   complaint

alleged the following facts:

         29. The City and the JRB created TID #10 and
    amended and expanded TID #8 exclusively for the
    alleged purpose of addressing blighted areas. None of
    the three remaining statutory purposes for creating a
    TID were invoked in connection with or stated by the
    city or the JRB to be the basis for the creation of
    TID #10 or the amendment to TID #8.

         51. On September 9, 2014, the City Common
    Council voted 8-3 to adopt a resolution approving
    Amendment No. 3 to TID #8.

         58. [O]n October 14, 2014, the City Council
    voted 7-3 to adopt a Resolution approving the creation
    of TID #10.

         72. The Resolution adopted by the City Council
    approving Amendment No. 3 to TID #8 contains a
    conclusory assertion that "not less than 50%, by area,
    of the real property within the amended boundary area
    of the District is a 'blighted area.'"        The City
    Council did not articulate the factual basis for this
    conclusory statement and the record before the City
    Council contains no evidence to support its assertion.

         83. The resolution adopted by the City Council
    approving TID #10 contains a conclusory assertion that
    "not less than 50%, by area, of the real property
    within the boundary area of the District is a
    'blighted area' and is in need of 'rehabilitation or
    conservation' . . . ."    The City Council did not

                                   17
                                                                     No.    2015AP1858


    articulate the factual basis for this conclusory
    statement and the record before the City Council
    contains no evidence to support its assertion.[15]

             c.    These allegations are insufficient to state a
                    claim upon which relief may be granted.
    ¶30           To determine whether the allegations are sufficient to

state    a    claim     upon    which      relief    may   be    granted,   we   must

interpret the statute; specifically, we must determine what the

statute means when it requires that the local legislative body

adopt    a    "resolution       which . . . [c]ontains           findings."      Wis.
Stat. § 66.1105(4)(gm)4.              The interpretation of a statute is a

question of law that we review de novo.                     See, e.g., Estate of

Miller       v.     Storey,    2017   WI    99,     ¶25,   378   Wis. 2d 358,     903

N.W.2d 759.

    ¶31           Plaintiffs argue that the areas in question were not

actually blighted and that, "when the legislature established

    15
       These allegations span the first and second claims of
Plaintiffs' complaint, which address TID 8 and TID 10,
respectively. With regard to both claims, Plaintiffs' complaint
also alleged several legal conclusions: (1) that, under Wis.
Stat. § 66.1105(4)(gm)4.a., the City Common Council "was
required to make a finding that '[n]ot less than 50%, by area,
of the real property within the district is . . . a blighted
area'"; (2) that "to properly make such a 'finding' the City
Council is required to articulate the basis for its finding and
the evidence of record that supports its action"; (3) that "the
City Council could not reasonably have concluded that the area
was blighted"; and (4) that, if a TID "does not actually serve
to eliminate blight, it lacks a public purpose and therefore
represents an unconstitutional expenditure of public funds." We
disregard   Plaintiffs'   legal    conclusions   because  "legal
conclusions stated in the complaint are not accepted as true,
and [] are insufficient to enable a complaint to withstand a
motion to dismiss." Data Key Partners v. Permira Advisers LLC,
2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693.


                                            18
                                                                    No.     2015AP1858



conditions for diverting tax money for the benefit of private

parties, it intended to permit such diversion only where those

conditions actually exist."             In this regard, Plaintiffs argue

that "[c]ourts are more than capable of evaluating a factual

determination made by a municipal body," and "no Wisconsin court

has ever held that declaratory judgment actions may not be used

to challenge" TIDs.          Moreover, they argue that where "the TIDs

do not in fact work to eliminate blight, they lack a public

purpose and are unconstitutional."16                 The City argues that the

determination of blight is a legislative act and that Plaintiffs

"failed   to   plead    sufficient       facts       to   satisfy    the     bedrock

separation-of-powers         principle    that       challenges     to    state   and

local legislative acts should not be resolved by the judicial

process   if   they    are    'fairly    debatable.'"         In     this    regard,

"[l]egislative acts enjoy a high level of judicial deference"

and the complaint "does not demonstrate the duly authorized City

Council . . . [determinations]                were     clearly       in      error."

Moreover, the complaint "does not demonstrate it is 'clear and
palpable that there can be no benefit to the public'"; thus,

Plaintiffs have not stated a claim for violation of the public


    16
       The public purpose doctrine is the rule that "there can
be no expenditure of public funds for a private purpose." State
ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 48,
205 N.W.2d 784 (1973) (quoting State ex rel. Singer v. Boos, 44
Wis. 2d 374, 381, 171 N.W.2d 307 (1969)).    "No specific clause
in the constitution establishes the public purpose doctrine.
However, it is a well-established constitutional tenet." Id. at
47-48.


                                         19
                                                                         No.       2015AP1858



purpose doctrine.          We conclude that Plaintiffs' complaint was

properly   dismissed       as    to   declaratory          judgment     on     this   issue

because    the    City     Common      Council's          findings     of    blight      are

legislative      determinations            that     do    not   present       justiciable

issues of fact or law.

    ¶32    "[S]tatutory interpretation begins with the language

of the statute."         State ex rel. Kalal v. Circuit Court for Dane

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

the statute states, in relevant part, as follows:

    In order to implement the provisions of this section,
    the     following      steps     and      plans      are
    required: . . . Adoption by the local legislative body
    of   a   resolution   which . . . [c]ontains    findings
    that . . . [n]ot less than 50%, by area, of the real
    property within the district is at least one of the
    following: a blighted area . . . .
Wis. Stat. § 66.1105(4)(gm)4.a.                   "All words and phrases shall be

construed according to common and approved usage; but technical

words and phrases and others that have a peculiar meaning in the

law shall be construed according to such meaning."                             Wis. Stat.

§ 990.01(1);      see    also    Kalal,       271        Wis. 2d 633,       ¶45;    Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 69-77 (2012) ("Ordinary-Meaning Canon").

    ¶33    "Findings" is not a defined term in the statute.                              The

word "findings" is also not defined in Black's Law Dictionary,

which   instead    refers       the   reader        to    the   following      entry     for

"finding   of     fact":    "A     determination           by   a    judge,     jury,     or

administrative agency of a fact supported by the evidence in the
record . . . ."          Finding      of    fact     Black's     Law    Dictionary       749


                                             20
                                                                            No.     2015AP1858



(10th ed. 2014).            Given this ordinary meaning of "findings", the

plain language of the statute does not require that the local

legislative        body——here,        the      City    Common    Council——itemize          the

evidence in the record that supports its finding of blight.

       ¶34    This plain language interpretation is supported by the

context of surrounding and closely-related statutes.                              See Kalal,

271 Wis. 2d 633, ¶46 ("[S]tatutory language is interpreted in

the    context       in    which     it   is    used; . . . in       relation        to    the

language of surrounding or closely-related statutes.").                                   In a

closely-related statute, the legislature has demonstrated that

it is fully capable of specifying when findings of blight must

be     explained          by   itemized         evidence.            See     Wis.        Stat.

§ 32.03(6)(c)4.            Chapter 32 governs the acquisition of condemned

property       vis-à-vis            eminent          domain,    including          municipal

acquisition of blighted properties under chapter 66.                              See, e.g.,

Wis.         Stat.         § 66.1331(4)(a)3.,              (4)(b);          Wis.         Stat.

§ 66.1333(5)(a)3., (5)(b)1.                 Section 32.03(6) limits this method

of     acquiring          blighted    properties          by    requiring         that    "the
condemnor shall make written findings and provide a copy of the

findings      to   the      owner    of   the    property.        The      findings      shall

include . . . [a] finding that the owner's property is blighted

and the reasons for that finding."                        § 32.03(6)(c)4. (emphasis

added).       Thus, the legislature is fully capable of specifying

when the reasons underlying a finding of blight must be given,

and we should not read into Wis. Stat. § 66.1105(4)(gm)4.a. such

a requirement where it is not specified.                         See Scalia & Garner,


                                                21
                                                                     No.     2015AP1858



supra ¶32 at 93 ("Nothing is to be added to what the text states

or reasonably implies.").

       ¶35     This interpretation is reinforced by the surrounding

blight-elimination statutes in chapter 66.                    For example, Wis.

Stat.       § 66.1331,   commonly    known    as    the   "Blighted        Area   Law,"

requires       only    "the   adoption   of   a     resolution    by       the    local

legislative body declaring the area to be a blighted area in

need    of    redevelopment."        § 66.1331(5)(b)1.           Similarly,        Wis.

Stat. § 66.1333, commonly known as the "Blight Elimination and

Slum Clearance Act," requires only "the adoption by the local

legislative body of a resolution declaring in substance that

there exists within the city a need for blight elimination, slum

clearance        and     urban      renewal        programs    and         projects."

§ 66.1333(3)(a)2.17           Here, Wis. Stat. § 66.1105, commonly known

as the "Tax Increment Law," requires only the "[a]doption by the

local legislative body of a resolution which . . . [c]ontains

findings that . . . [n]ot less than 50%, by area, of the real

property       within     the    district     is . . . a       blighted           area."


       17
        In addition to chapters 32 and 66, "blight" is discussed
in chapter 30, relating to the construction, repair, or
maintenance    of   harbor    improvements,   see   Wis.   Stat.
§§ 30.121(3w)(b), 30.30(3)(b); in chapter 60, relating to the
miscellaneous powers of town housing authorities, see Wis. Stat.
§ 60.23(27); in chapter 67, relating to the procedure for
issuing bonds to finance the elimination of blight, see Wis.
Stat. § 67.05(5)(b); and in chapter 292, relating to exemptions
for local government units from hazardous waste contamination
penalties and requirements for properties acquired for the
purpose     of    blight    elimination,    see    Wis.    Stat.
§§ 292.11(9)(e)1m.(d), 292.23(2)(d), 292.26(2)(d).


                                         22
                                                                    No.    2015AP1858



§ 66.1105(4)(gm)4.a.        Thus, the blight-elimination provisions in

chapter   66   are    all   similar    in    that    none    of   them    require   a

specified rationale or itemization of supporting evidence.

    ¶36     Moreover,       and     perhaps         more     importantly,         this

interpretation       is   reasonable    because      findings     of     blight   are

legislative    determinations         that   "do[]     not    raise      justiciable

issues of fact or law."           Joint Sch. Dist. No. 1 v. State Appeal

Bd., 56 Wis. 2d 790, 794, 203 N.W.2d 1 (1973).                     In Wis. Stat.

§ 66.1105, "blighted area" means:

         An area, including a slum area, in which the
    structures, buildings or improvements, which by reason
    of dilapidation, deterioration, age or obsolescence,
    inadequate provision for ventilation, light, air,
    sanitation, or open spaces, high density of population
    and overcrowding, or the existence of conditions which
    endanger life or property by fire and other causes, or
    any combination of these factors is conducive to ill
    health, transmission of disease, infant mortality,
    juvenile delinquency, or crime, and is detrimental to
    the public health, safety, morals or welfare.
§ 66.1105(2)(ae)1.a.         And this is substantially similar to the

definition of "blighted area" in all of the blight-elimination
statutes:

         "Blighted area" means any area, including a slum
    area, in which a majority of the structures are
    residential or in which there is a predominance of
    buildings or improvements, whether residential or
    nonresidential, and which, by reason of dilapidation,
    deterioration,   age   or    obsolescence,   inadequate
    provision for ventilation, light, air, sanitation, or
    open   spaces,   high   density   of   population   and
    overcrowding, or the existence of conditions which
    endanger life or property by fire and other causes, or
    any combination of these factors, is conducive to ill
    health, transmission of disease, infant mortality,


                                        23
                                                             No.     2015AP1858


      juvenile delinquency and crime, and is detrimental to
      the public health, safely, morals or welfare.
Wis. Stat. § 66.1331(3)(a).

           "Blighted area" means . . . [a]n area, including
      a slum area, in which there is a predominance of
      buildings or improvements, whether residential or
      nonresidential, which by reason of dilapidation,
      deterioration,   age   or    obsolescence,   inadequate
      provision for ventilation, light, air, sanitation, or
      open   spaces,   high   density   of   population   and
      overcrowding, or the existence of conditions which
      endanger life or property by fire and other causes, or
      any combination of such factors id conducive to ill
      health, transmission of disease, infant mortality,
      juvenile delinquency, or crime, and is detrimental to
      the public health, safety, morals or welfare.
Wis. Stat. § 66.1333(2m)(b)1.

      ¶37    The key language in each of these statutes is that the

"area," in its current state, "is detrimental to the public

health, safety, morals, or welfare."              "Public safety, public

health, [and] morality . . . are some of the more conspicuous

examples of the traditional application of the police power to

municipal affairs,"         Berman v. Parker, 348 U.S. 26, 32 (1954),

and   a     "municipality's      exercise   of    its   police     power   has

traditionally     been     accorded   deference    by   reviewing    courts."

Nowell v. City of Wausau, 2013 WI 88, ¶46, 351 Wis. 2d 1, 838

N.W.2d 852.     "It is to be remembered that we are dealing with

one of the most essential powers of government, one that is the

least limitable."        Id.18
      18
       Legislative exercise of the police power is delegable,
and its delegation to cities regarding matters of redevelopment
has been upheld against constitutional attack on numerous
occasions.   See, e.g., David Jeffrey Co. v. City of Milwaukee,
267 Wis. 559, 590, 66 N.W.2d 362 (1954).
                                                    (continued)
                                      24
                                                                              No.    2015AP1858



       ¶38       When exercised, the police power "may, indeed, seem

harsh in its exercise, [and] usually is on some individual."

Id.      The act of condemnation for the purpose of eliminating

blight           is      no       exception:         "to         condemn        unoffending

property . . . is repugnant to the concept of the fundamental

right       of   private      property."        David      Jeffrey      Co.     v.    City   of

Milwaukee, 267 Wis. 559, 585, 66 N.W.2d 362 (1954).                                 "[B]ut the

imperative            necessity    for   [the       police       power]    precludes         any

limitation upon it when not exerted arbitrarily."                               Nowell, 351

Wis. 2d 1, ¶46.            In this regard, it must also be remembered that

"the    law      is     directed    against     slum       and    blighted      areas,       not

individual structures," David Jeffrey Co., 276 Wis. at 585, and

that "the amount and character of land to be taken for the

project and the need for a particular tract to complete the

integrated        plan     rests    in   the    discretion         of     the   legislative

branch."19            Berman, 348 U.S. at 35-36; see also David Jeffrey

             Here, by its enactment, the legislature has
       declared the policy and fixed the standards for the
       administration of the law. . . . It defines blighted
       area.     It gives to cities the responsibility of
       determining the size of an area to be redeveloped, the
       costs involved and the details of the redevelopment
       plan, the method and mechanics of clearance, and the
       determination   of  future   uses.     Obviously,  the
       legislature could not make specific provisions for all
       of these items, for the very reason that the size,
       extent, and character of the blighted areas, and the
       plans for redevelopment, differ in each city where the
       slum and blight condition exists.

Id.    See also Hammermill, 58 Wis. 2d at 57-59.
       19
            In fact, Wis. Stat. § 66.1331 explicitly states:
                                                                                (continued)
                                               25
                                                   No.   2015AP1858



Co., 267 Wis. at 578 ("The use of all property is subject to the

police power of the state, to be exercised for the protection of

the health, safety, and general welfare of the public, either



         Findings and declaration of necessity.        It is
    found and declared that there have existed and
    continue to exist in citied within the state,
    substandard,   insanitary,    deteriorated,   slum   and
    blighted areas which constitute a serious and growing
    menace, injurious and inimical to the public health,
    safety, morals and welfare of the residents of the
    state.    The existence of these areas contributes
    substantially and increasingly to the spread of
    disease and crime . . . constitutes an economic and
    social liability, substantially impairs or arrests the
    sound growth of cities, and retards the provision of
    housing accommodations.    This menace is beyond remedy
    and control solely by regulatory process in the
    exercise of the police power and cannot be dealt with
    effectively by the ordinary operations of private
    enterprise without the aids provided in this section.
    The acquisition of property for the purpose of
    eliminating   substandard,   insanitary,   deteriorated,
    slum or blighted conditions or preventing recurrence
    of these conditions in the area, the removal of
    structures and improvement of sites, the disposition
    of the property for redevelopment incidental to these
    activities, and any assistance which may be given by
    cities or any other public bodies, are public uses and
    purposes for which public money may be expended and
    the power of eminent domain exercised. The necessity
    in the public interest for the provision of this
    section is declared as a matter of legislative
    determination.

§ 66.1331(2); see also Wis. Stat. § 66.1333(2).   The fact that
these specific legislative findings are absent from Wis. Stat.
§ 66.1105 does not surprise us, or cause us concern, however,
because the Tax Increment Statute simply enables municipalities
to work with private parties on public improvements it would
otherwise be authorized to undertake itself under §§ 66.1331 and
66.1333.


                               26
                                                                                  No.   2015AP1858



directly or through subordinate agencies to whom the exercise of

such prerogative may be entrusted.").

      ¶39        "Legislative            determination[s]             of      public       policy

questions [do] not raise justiciable issues of fact or law."

Joint Sch. Dist. No. 1, 56 Wis. 2d at 794; see also Buhler v.

Racine      Cty.,       33        Wis. 2d 137,           146,   146        N.W.2d 403       (1966)

("However,        since       zoning      is    a    legislative       function,          judicial

review is limited and judicial interference restricted to cases

of abuse of discretion, excess of power, or error of law.").

This is because de novo review of a legislative determination

violates the doctrine of separation of powers.                                See Joint Sch.

Dist.      No.    1,    56        Wis. 2d at        795;   Buhler,     33     Wis. 2d at       147

("[T]he court, because of the fundamental nature of its power,

cannot substitute its judgment for that of the zoning authority

in the absence of statutory authorization."); see also Bisenius

v. Karns, 42 Wis. 2d 42, 53-54, 165 N.W.2d 377 (1969) ("[O]nce

within the area of proper exercise of police power, it is for

the   legislature            to    determine        what   regulations,        restraints       or
prohibitions           are    reasonably        required        to    protect       the    public

safety.").          Therefore, a finding of blight under Wis. Stat.

§ 66.1105(4)(gm)4.a.                is    not       susceptible       to     an     action    for

declaratory judgment because, as a legislative determination, it

does not give rise to justiciable issues of fact or law.20

      20
       We note the dissent's focus on our discussion of Joint
School Dist. No. 1 v. State Appeal Bd., 56 Wis. 2d 790, 203
N.W.2d 1, and Buhler v. Racine Cty., 33 Wis. 2d 137, 146
N.W.2d 403 (1966)——which we cite for the broad proposition that
legislative findings, in general, do not raise justiciable
                                                    (continued)
                                                    27
                                                                    No.    2015AP1858



     ¶40     Thus,    Plaintiffs     have     failed   to   state    claims     upon

which     relief    may   be   granted   because   a   court   cannot       issue   a

declaration regarding the wisdom of a legislative determination.

See, e.g., Aicher v. Wis. Patients Compensation Fund, 2000 WI

98, ¶57, 237 Wis. 2d 99, 613 N.W.2d 849 ("It is not our role to

determine     the    wisdom    or   rationale    underpinning       a     particular

legislative pronouncement."); Gottlieb v. City of Milwaukee, 33

Wis. 2d 408, 415, 147 N.W.2d 633 (1967) ("We are not concerned

with the wisdom of what the legislature has done."); Buhler, 33

Wis. 2d at 146-47.21




issues of fact or law——and its misapprehension of our
discussion of Berman v. Parker, 348 U.S. 26 (1954), David
Jeffrey Co., 267 Wis. 599, and Nowell v. City of Wausau, 2013 WI
88, ¶46, 351 Wis. 2d 1, 838 N.W.2d 852——which we rely on for the
proposition that a finding of blight under Wis. Stat.
§ 66.1105(4)(gm)4.a. is a legislative one.     From this, we are
compelled to conclude that the dissent does not seem to
understand   the   significance   of   the   difference   between
legislative facts/findings and judicial facts/findings.      See,
e.g., Ann Woolhandler, Rethinking the Judicial Reception of
Legislative Facts, 41 Vand. L. Rev. 111, 113-16 (1988).
     21
       Because we conclude that the findings of blight are
legislative determinations, we need not address Plaintiffs'
coordinate claims regarding the public purpose doctrine, which
assume that these determinations are reducible to judicial fact
finding ("If a [TID] ostensibly created to address issues of
blight does not actually serve to eliminate blight, it lacks a
public purpose and therefore represents an unconstitutional
expenditure of public funds.").


                                         28
                                                              No.   2015AP1858


       2.    Assertions under Wis. Stat. § 66.1105(4m)(b)2.
                         a.   The substantive law

    ¶41     Wisconsin    Stat.     § 66.1105(4m)    states,    in    relevant

part, as follows:

         Joint review board. (a) Any city that seeks to
    create a tax incremental district, amend a project
    plan, [or] have a district's tax incremental base
    redetermined under sub (5)(h) . . . shall convene a
    temporary joint review board under this paragraph, or
    a standing joint review board under sub (3)(g), to
    review the proposal. . . .

         (b) 1. The     board shall  review  the  public
    record, planning documents and the resolution passed
    by the local legislative body or planning commission
    under sub (4)(gm) . . . .

         2. Except as provided in subd. 2m., no tax
    incremental district may be created and no project
    plan may be amended unless the board approves the
    resolution   adopted  under   sub  (4)(gm) . . . by   a
    majority vote within 30 days after receiving the
    resolution. . . . The   board  may   not  approve   the
    resolution under this subdivision unless the board's
    approval contains a positive assertion that, in its
    judgment, the development described in the documents
    the board has reviewed under subd. 1. would not occur
    without the creation of a tax incremental district.
§ 66.1105(4m)(a), (b)1.-2.

            b.     The allegations in Plaintiffs' complaint
    ¶42     With    regard    to   this    claim,   Plaintiffs'     complaint

alleges the following facts:

         44. [D]evelopment    plans   unrelated   to   the
    Confluence Project were already underway with respect
    to certain of the historic properties within TID #10.
    For example, the Kline Department Store building was
    in the hands of a new owner who had publicly announced
    a redevelopment plan for that property. And the owner
    of the historic property at 2 South Barstow Street had
    already entered into an agreement with the City for

                                      29
                                             No.     2015AP1858


the renovation and redevelopment of that building with
City-negotiated   requirements   that   its   historic
character be preserved.

     45. . . . The City's decision . . . to fund the
Confluence Project . . . forced the alternative plans
to be abandoned . . . .

     53. On September 26, 2014, the JRB adopted        a
resolution approving Amendment No. 3 to TID #8.

     54. The statement in the resolution that in     the
judgment of the JRB "the development described in    the
Amendment [to TID #8] would not occur without        the
amendment" is neither supported by record evidence   nor
factually correct.

     60. On October 22, 2014, the JRB adopted          a
Resolution approving the creation of TID #10.

     61. The statement in the Resolution that in the
judgment of the JRB "the development described in the
Project Plan would not occur without the creation
[presumably of TID #10]" is neither supported by
record evidence nor is factually correct.

     76. . . . The JRB did not "review the public
record, planning documents, and the resolution passed
by" the City Council for Amendment No 3. to TID
#8 . . . ; it considered only a conclusory three-page
"Joint Review Board Report."




                          30
                                                                       No.       2015AP1858


            87. . . . The JRB did not "review the public
       record, planning documents and the resolution passed
       by" the City Council [for creation of TID #10].[22]

(Alterations in ¶¶54 and 61 in original.)

  c.        These allegations are insufficient to state a claim upon
                        which relief may be granted.
       ¶43     To determine whether these allegations state a claim

upon which relief may be granted, we must interpret the statute;

specifically, we must determine what the statute means when it

requires       that    that     the   JRB's    "approval   contain[]         a   positive

assertion."           The interpretation of a statute is a question of

law    that     we     review    de   novo.        See   Estate   of    Miller,        378

Wis. 2d 358, ¶25.

       ¶44     Plaintiffs argue that redevelopment in the areas in

question would have occurred without the TIDs and that, "when

the legislature established conditions for diverting tax money

for the benefit of private parties, it intended to permit such

diversion only where those conditions actually exist."                            In this

regard, "[c]ourts are more than capable of evaluating a factual

determination made by a municipal body," and "no Wisconsin court

has ever held that declaratory judgment actions may not be used

       22
       These allegations span the first and second claims of
Plaintiffs' complaint, which address TID 8 and TID 10,
respectively. With regard to both claims, Plaintiffs' complaint
also alleged that the JRB could not have "reasonably concluded"
"that development would not occur . . . without tax incremental
financing."    This is a legal conclusion which we disregard
because "legal conclusions stated in the complaint are not
accepted as true, and [] are insufficient to enable a complaint
to withstand a motion to dismiss."      Data Key Partners, 356
Wis. 2d 665, ¶19.


                                              31
                                                                        No.    2015AP1858



to   challenge"    TIDs.         Moreover,     where      the   "development         would

occur in the area without a TID, the TIDs do not serve [a]

public purpose[]."             The City argues that the JRB's "but for"

assertions are legislative acts and that Plaintiffs "failed to

plead   sufficient       facts    to    satisfy     the   bedrock   separation-of-

powers principle that challenges to state and local legislative

acts should not be resolved by the judicial process if they are

'fairly debatable.'"            In this regard, "[l]egislative acts enjoy

a high level of judicial deference" and the complaint "does not

demonstrate       the     duly      authorized . . . Joint          Review           Board

[determinations]         were     clearly      in    error."        Moreover,          the

complaint "does not demonstrate it is 'clear and palpable that

there can be no benefit to the public'"; thus, Plaintiffs have

not stated a claim for violation of the public purpose doctrine.

We conclude that Plaintiffs' complaint was properly dismissed as

to declaratory judgment on this issue because the JRB's "but

for"    assertions       are    legislative       determinations        that    do    not

present justiciable issues of fact or law.
       ¶45    "[S]tatutory interpretation begins with the language

of   the     statute."         Kalal,   271    Wis. 2d 633,      ¶45.         Here,    the

statute states, in relevant part, as follows:

       [N]o tax incremental district may be created and no
       project plan may be amended unless the board approves
       the resolution adopted under sub. (4)(gm) . . . . The
       board may not approve the resolution under this
       subdivision unless the board's approval contains a
       positive   assertion  that,   in   its  judgment, the
       development described in the documents the board has
       reviewed under subd. 1. would not occur without the
       creation of a tax incremental district.

                                          32
                                                                       No.    2015AP1858



Wis. Stat. § 66.1105(4m)(b)2.               "All words and phrases shall be

construed according to common and approved usage; but technical

words and phrases and others that have a peculiar meaning in the

law shall be construed according to such meaning."                           Wis. Stat.

§ 990.01(1);     see    also    Kalal,      271   Wis. 2d 633,     ¶45;       Scalia   &

Garner, supra ¶32 at 69-77 ("Ordinary-Meaning Canon").

    ¶46       "Positive assertions" is not a defined term in the

statute.      The word "assertion" is, however, defined in Black's

Law Dictionary: "1.           A declaration[23] or allegation.[24]                2.   A

person's speaking, writing, acting, or failing to act with the

intent of expressing a fact or opinion; the act or an instance

of engaging in communicative behavior."                   Assertion Black's Law

Dictionary, supra ¶33 at 139.                Given this ordinary meaning of

"assertion," the plain language of the statute does not require

that the JRB itemize the evidence in the record that supports

its "but for" assertion.

    ¶47       This plain language interpretation is supported by our

analysis      above    because,      as    with   the   City    Common        Council's
finding of blight, "[t]he Joint Review Board's task was to look

at the TIF District as a whole and determine whether development

would    occur   without       the   use    of    tax   incremental      financing."

State    ex   rel.    Olson    v.    City    of    Baraboo     Joint    Review     Bd.,

    23
       "Declaration"    is   defined:  "A   formal   statement,
proclamation, or announcement . . . ."  Declaration Black's Law
Dictionary 493 (10th ed. 2014).
    24
       "Allegation" is defined: "A declaration that something is
true . . . ." Allegation id. at 90.


                                            33
                                                                                 No.    2015AP1858



2002 WI App 64, ¶29, 252 Wis. 2d 628, 643 N.W.2d 796.                                   The issue

is not whether one owner of one structure plans to redevelop one

property, because "the piecemeal approach, the [remediation] of

individual         structures . . . would                be       only     []     palliative."

Berman, 348 U.S. at 34.                       Rather, the redevelopment projects

permitted under the statute are of an integrated nature so as to

prevent      the    recurrence          of     blight.            This    determination          is

holistic and wholly within the discretion of the legislature.

Therefore,         a         "but      for"         assertion       under         Wis.      Stat.

§ 66.1105(4m)(b)2.              is     not     susceptible          to     an      action       for

declaratory judgment because, as a legislative determination, it

does not give rise to justiciable issues of fact or law.

    ¶48      Thus,       Plaintiffs          have     failed      to     state    claims       upon

which   relief         may    be     granted    because       a    court       cannot    issue    a

declaration regarding the wisdom of a legislative determination.

See, e.g., Aicher, 237 Wis. 2d 99, ¶57 ("It is not our role to

determine the wisdom or rationale [of] a particular legislative

pronouncement.");             Gottlieb,        33    Wis. 2d at          415    ("We     are    not
concerned with the wisdom of what the legislature has done.");

Buhler, 33 Wis. 2d at 146-47.

        3.    Cash grants under Wis. Stat. § 66.1105(2)(f)1.a.
                                a.     The substantive law

    ¶49      Wisconsin Stat. § 66.1105(2)(f)1. states, in relevant

part, as follows:

         "Project costs" mean any expenditures made or
    estimated to be made or monetary obligations incurred
    or estimated to be incurred by the city which are
    listed in a project plan as costs of public works or

                                                34
                                                         No.   2015AP1858


    improvements within a tax incremental district . . . .
    "Project costs" include:

         a. Capital costs including, but not limited to,
    the actual costs of the construction of public works
    or   improvements,   new   buildings,   structures,   and
    fixtures; the demolition, alteration, remodeling,
    repair   or   reconstruction   of   existing   buildings,
    structures and fixtures other than the demolition of
    listed properties as defined in s. 44.31(4) . . . .
§ 66.1105(2)(f)1.a.     Section 44.31(4) defines "listed property"

to mean "property which is listed on the national register of

historic places in Wisconsin or the state register of historic
places, or both."    Wis. Stat. § 44.31(4).

          b.     The allegations in Plaintiffs' complaint
    ¶50   With    regard   to   this    claim,   Plaintiffs'   complaint

alleges the following facts:

         42. . . . The buildings that have been purchased
    and subsequently demolished by the developer include
    the Kline Department Store, which was listed on the
    National Register of Historic Places. Also demolished
    were several other buildings within the Confluence
    Commercial District, also on the National Register.

         43. A substantial part of the development costs
    actually incurred by the developer thus includes the
    costs of demolition as well as the purchase price of
    the   Kline  Department  Store   building  and  other
    buildings that are listed properties pursuant to Wis.
    Stat. § [44.31(4)].

         46. The Project Plan for TID #10 indicates that
    $10,400,000 of the project costs will come in the form
    of "contributions"——i.e. cash payments from the City——
    to the Confluence developer.   These contributions are
    to be paid in the form of cash grants to the
    partnership to compensate it for development costs.
    The funds . . . depend upon its achieving specified
    milestones in the project, but they are paid to the
    developer in a lump sum once those milestones have
    been reached.   Neither the Project Plan for TID #10

                                   35
                                                               No.   2015AP1858


       nor the agreements with the developer clearly provide
       that the lump sum grants may not be used by the
       Confluence developer to reimburse itself for some or
       all of the costs of purchasing then demolishing listed
       properties that it had already incurred.

            94. . . . Given the lump sum character of the
       developer payments, there is in fact no way to assure
       that the payments have been used as reimbursement for
       certain already incurred costs, and not used as
       reimbursement for others.[25]

  c.        These allegations are insufficient to state a claim upon
                        which relief may be granted.
       ¶51     To determine whether these allegations state a claim

upon which relief may be granted we must interpret the statute.

The interpretation of a statute is a question of law that we

review de novo.       See Estate of Miller, 378 Wis. 2d 358, ¶25.

       ¶52     Plaintiffs argue that they "alleged that TIF funds for

TID #10 were in fact being used to reimburse the developer for

the    acquisition      and   destruction    of   historic      properties,"

contrary to Wis. Stat. § 66.1105(2)(f)1.a., and that to conclude

otherwise would mean that "reimbursement for the destruction of

historic buildings can be challenged only when TID funds are
expressly       earmarked   for   demolition."    The   City    argues    that


       25
        With regard to this claim, Plaintiffs' complaint also
alleged the following legal conclusions: (1) that, under Wis.
Stat. § 66.1105(2)(f)1.a., "tax incremental funds cannot be used
to compensate a developer for the costs associated with the
destruction of listed properties"; and (2) that "the TID #10
project plan . . . unlawfully reimburses the developer for such
costs."    We disregard Plaintiffs' legal conclusions because
"legal conclusions stated in the complaint are not accepted as
true, and [] are insufficient to enable a complaint to withstand
a motion to dismiss." Data Key Partners, 356 Wis. 2d 665, ¶19.


                                      36
                                                                              No.    2015AP1858



Plaintiffs'        claim     here     fails    because          it    is    moot,     as     the

buildings in question have already been demolished, and because

the complaint "fails to plead facts demonstrating any connection

between      TIF     funds     and     historic           building         acquisition        or

demolition."         We    conclude      that       Plaintiffs'           third     claim    was

properly     dismissed       because     it        does    not       allege    facts       which

plausibly establish that the City's cash grant for TID 10 was

used    to    reimburse        the     developer's          costs         associated        with

demolishing historic buildings.

       ¶53   "[S]tatutory interpretation begins with the language

of the statute."           Kalal, 271 Wis. 2d 633, ¶45.                    Wisconsin Stat.

§ 66.1105(2)(f) states, in relevant part, as follows:

            "Project   costs"  include . . . [c]apital   costs
       including . . . the       demolition,       alteration,
       remodeling, repair or reconstruction of existing
       buildings, structures and fixtures other than the
       demolition of [property which is listed on the
       national register of historic places in Wisconsin or
       the state register of historic places, or both].
§ 66.1105(2)(f)1.a.             The     plain       language         of    this     provision

establishes that it would be a violation of the statute for a

developer to use money allocated for "project costs" to pay for

the demolition of historic buildings.

       ¶54   This     is     not,      however,          what    Plaintiffs          alleged.

Although Plaintiffs alleged that the $10.4 million cash grant

was    for   "project       costs,"     they       did     not       allege    facts       which

establish that the developer in fact used the money from the

cash grant to pay for the demolition of Kline Department Store
or other historic buildings.                  Nor did they allege facts which


                                              37
                                                                       No.     2015AP1858



demonstrate that the developer was likely to do so.                          Plaintiffs

alleged only that "there is . . . no way to assure" that the

developer did not use the cash grant to pay for the demolition

of historic buildings.

      ¶55    Thus, Plaintiffs' allegations fail to state a claim

upon which relief can be granted because, even if taken as true,

they establish only the possibility that funds could be used to

pay   for    the    demolition     of    historic     buildings.        This    is   not

"enough      heft    to   'sho[w]       that    the   pleader     is    entitled       to

relief.'"      Data Key Partners, 356 Wis. 2d 665, ¶26 (alteration

in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554,

557   (2007)).        "'[I]t     gets    the    complaint   close      to    stating   a

claim, but without some further factual enhancement it stops

short   of    the    line   between       possibility       and   plausibility         of

entitle[ment] to relief.'"              Id. (second alteration in original)

(quoting Bell Atl. Corp., 550 U.S. at 557).

             4.     Cash grants under Article VIII, Section 1
                            a.    The substantive law
      ¶56    Article VIII, Section 1 of the Wisconsin Constitution

states, in relevant part, as follows:

      The rule of taxation shall be uniform but the
      legislature may empower cities, villages or towns to
      collect and return taxes on real estate located
      therein by optional methods.

Wis. Const. art. VIII, § 1.




                                           38
                                                                                No.    2015AP1858



                   b.    The allegations in Plaintiffs' complaint

          ¶57     With        regard   to    this         claim,      Plaintiffs'      complaint

alleges the following facts:

               42. The developer purchased the properties on
          the   Confluence Project site   in  three  separate
          transactions in May, 2012, April, 2014, and June,
          2014 . . . .

               106. [T]he project plans provide for millions of
          dollars of incremental TID taxes to be paid directly
          to the owner of the property within the TID, with no
          meaningful restrictions except that the developer use
          them to reimburse itself for "project costs."[26]

     c.        These allegations are insufficient to state a claim upon
                           which relief may be granted.
          ¶58     To determine whether these allegations state a claim

upon which relief may be granted we must interpret the statute

and       Article        VIII,     Section       1    of    the    Wisconsin     Constitution

(hereinafter the "Uniformity Clause").                             The interpretation of a

statute is a question of law that we review de novo.                                  See Estate

of    Miller,           378    Wis. 2d 358,          ¶25.       The    interpretation      of    a

constitutional                provision     is   also       a   question   of   law     that    we




          26
       With regard to this claim, Plaintiffs' complaint also
alleged that "[t]his arrangement functions as a tax rebate or
tax credit, and . . . constitutes a violation of the Uniformity
Clause . . . [b]ecause the developer here is being taxed at a
more favorable rate than an owner of identically-assessed
property elsewhere."    This is a legal conclusion, which we
disregard because "legal conclusions stated in the complaint are
not accepted as true, and [] are insufficient to enable a
complaint to withstand a motion to dismiss." Data Key Partners,
356 Wis. 2d 665, ¶19.


                                                     39
                                                                               No.    2015AP1858



review de novo.             Madison Teachers, Inc. v. Walker, 2014 WI 99,

¶13, 358 Wis. 2d 1, 851 N.W.2d 337.

      ¶59   Plaintiffs argue that the TIDs violate the Uniformity

Clause because "the owner is paying the same formal rate as

everyone else, but is getting paid a reimbursement that lowers

its   effective        rate";       thus,      the      cash   grants        constitute     "an

unconstitutional tax rebate."                    Plaintiffs argue that this is an

as-applied      challenge        because       they      "seek[]      only    to     invalidate

these particular TIDs" and "[a] ruling for [Plaintiffs] on this

claim    would        not    bar     all    cash        grants     under       [Wis.    Stat.]

§ 66.1105(2)(f)2.d."               The City argues that the complaint "does

not plead sufficient facts to satisfy the burden necessary to

challenge       the    constitutional            validity        of    a     state     statute"

because "[i]t is not sufficient to say reasonable minds may

disagree"; rather "[a]ny doubt as to constitutionality must be

resolved in favor of constitutionality."                              It also argues that

Plaintiff's claim is a facial challenge, and that Plaintiffs

have not successfully distinguished Sigma Tau, where this court
upheld    the    Tax    Increment        Law     against       such     a    challenge.      We

conclude that Plaintiffs' fourth claim was properly dismissed

because it does not allege facts which plausibly establish that

the cash grants are intended or used to pay the property taxes

of owner-developers.

      ¶60   As a preliminary matter, we conclude that Plaintiffs

are     attempting          to   raise      an        as-applied       challenge       to   the

constitutionality of cash grant disbursements pursuant to Wis.
Stat. § 66.1105(2)(f)2.d.                  Our prior cases distinguish between
                                                 40
                                                                                    No.    2015AP1858



facial and as-applied challenges as follows: a facial challenge

is       "[a]         claim         that         a         statute . . . always                operates

unconstitutionally"; an as-applied challenge is "a claim that a

statute is unconstitutional on the facts of a particular case or

to   a    particular          party."            Olson       v.     Town     of    Cottage       Grove,

2008 WI 51,           ¶44    n.9,    309       Wis. 2d 365,          749     N.W.2d 211         (citing

Black's Law Dictionary); see also Tammy W-G. v. Jacob T., 2011

WI 30, ¶¶46-48, 333 Wis. 2d 273, 797 N.W.2d 854; State v. Wood,

2010      WI    17,        ¶13,     323        Wis. 2d 321,          780     N.W.2d 63.            This

distinction           is    significant          because,         although        the    presumption

that a statute is constitutional applies in both facial and as-

applied        challenges,          in    an     as-applied          challenge      "there       is   no

presumption the statute has been applied in a constitutional

manner."         Milewski         v.      Town       of    Dover,     2017    WI    79,    ¶15,       377

Wis. 2d 38, 899 N.W.2d 303.

         ¶61    Here, Plaintiffs' claim is that cash grants to the

owner-developer              violate       the        Uniformity       Clause          because     they

effectively           reimburse          the    owner-developer            for     property       taxes
paid     on     the    project       property.               These    allegations         have     some

characteristics of both a facial challenge and an as-applied

challenge, as defined in our prior cases.                                  In other words, one

could argue that the challenge is either.                                  On the one hand, it

has the character of a facial challenge because, if Plaintiffs

are successful, the statute would be invalidated beyond these

particular           TIDs;     that       is,        all     cash    grants       to     all     owner-

developers would be unconstitutional.                               On the other hand, it is
more     of     an    as-applied           challenge         because,        if    Plaintiffs         are
                                                      41
                                                                                 No.      2015AP1858



successful,         this       provision        of     the    statute     would      not      always

operate unconstitutionally; that is, Plaintiffs' allegations do

not challenge cash grants to developers who do not own the land

being developed.               Thus, Plaintiffs' claim does not fit clearly

within     one      or        the    other       of     the    traditional,          categorical

definitions for constitutional challenges.

    ¶62       Some       have       reasoned      that       challenges    like        this    exist

because    there         is    no     "sharp,         categorical       distinction         between

facial     and      as-applied . . . challenges                    to     the     validity         of

statutes."              Richard       H.   Fallon,       Jr.,     As-Applied         and      Facial

Challenges and Third-Party Standing, 113 Harvard L. Rev. 1321,

1336 (2000).             Fallon opines that this is because "a litigant

must always assert that the statute's application to her case

violates          the     [c]onstitution";               thus,     "determinations               that

statutes are facially invalid properly occur only as logical

outgrowths of rulings on whether statutes may be applied to

particular         litigants         on    particular         facts."      Id.       at    1327-28.

Here,    we       conclude          that   Plaintiffs'          claim     is    an     as-applied
challenge         because,      even       if   Wis.     Stat.    § 66.1105(2)(f)2.d.              is

invalid as Plaintiffs claim, the constitutional infirmity would

not invalidate all applications of this provision, nor would it

render the remainder of the statute invalid.

    ¶63       We        have    once       before       upheld    Wis.     Stat.          § 66.1105

against       a     constitutional              challenge.          See        Sigma      Tau,     93

Wis. 2d 392.            In Sigma Tau we concluded that "the Tax Increment

Law is constitutional" on its face because "[a]ll tax payers
within the territorial limits of each . . . district [] continue
                                                  42
                                                          No.     2015AP1858



to be taxed at a uniform rate based upon valuations uniformly

arrived at."       Id. at 412.27     At that time, however, the Tax

Increment Law did not incorporate the particular provision at

issue here,28 and a statute once held to be constitutional, is

not   "forever    and   always"   constitutional,   "regardless    of   any

legislative alterations."29       Voters, 376 Wis. 2d 479, ¶46.      Thus,


      27
       In doing so, we distinguished two of our prior cases.
See State ex rel. La Follette v. Torphy, 85 Wis. 2d 94, 108, 270
N.W.2d 187 (1978) (concluding that the Improvements Tax Relief
Law violated the Uniformity Clause because its rebate credits
for certain property owners "lead[] to the indisputable
conclusion that taxpayers owning equally valuable property will
ultimately be paying disproportionate amounts of real estate
taxes."); Gottlieb v. City of Milwaukee, 33 Wis. 2d 408, 428-29,
147 N.W.2d 633 (1967) (concluding that the Urban Redevelopment
Law violated the Uniformity Clause because its suspension of
property taxes for redevelopment corporations constituted a
partial exemption).    We do not perceive these cases to be
directly applicable to the issue here presented and therefore do
not analyze them further.

     We note, however, that, as we pointed out in Torphy, "[t]he
initial question is whether the [law] is a tax statute subject
to the uniformity clause." 85 Wis. 2d at 104; see also State ex
rel. Harvey v. Morgan, 30 Wis. 2d 1, 10, 139 N.W.2d 585 (1966)
("The [question of whether chapter 580 violated the uniformity
clause] is relevant only if Ch. 580 is in fact a tax law.").
Neither party has presented arguments regarding whether the Tax
Increment Law is a tax law and, for the purposes of our
analysis, we assume without deciding that it is.
      28
           See 2003 Wis. Act 126, § 3.
      29
       In this regard, we note that the legislature made
numerous amendments to Wis. Stat. § 66.1105 since the 2013-14
version considered herein. See 2015 Wis. Act 60, §§ 32-36; 2015
Wis. Act 75; 2015 Wis. Act 96; 2015 Wis. Act 254, §§ 1-7; 2015
Wis. Act 255; 2015 Wis. Act 256, §§ 3-18; 2015 Wis. Act 257,
§§ 7-12; 2017 Wis. Act 58, §§ 19-21.


                                     43
                                                                            No.     2015AP1858



Sigma Tau is not dispositive on the issue here presented and we

undertake a de novo analysis.30

       ¶64     "[S]tatutory interpretation begins with the language

of the statute."            Kalal, 271 Wis. 2d 633, ¶45.                   Wisconsin Stat.

§ 66.1105(2)(f)2. states, in relevant part, as follows:

            Notwithstanding subd. 1., none of the following
       may be included as project costs for any tax
       incremental district for which a project plan is
       approved . . .

            d. Cash grants made by the city to owners,
       lessees, or developers of land that is located within
       the   tax  incremental   district   unless the   grant
       recipient has signed a development agreement with the
       city, a copy of which shall be sent to the appropriate
       joint review board or, if that joint review board has
       been dissolved, retained by the city in the official
       records for that tax incremental district.
Wis. Stat. § 66.1105(2)(f)2.d.                  Subdivision 1. lists the costs

that     are    "include[d]"          within        the    definition       of    "[p]roject

costs": capital costs, financing costs, real property assembly

costs, professional service costs, imputed administrative costs,

relocation           costs,     organizational                  costs,     project         plan
implementation costs, infrastructure construction or alteration

costs,         and     lead     contamination                  costs.        Wis.         Stat.

§ 66.1105(2)(f)1.a.—n.                This     list       does    not    include    property

taxes;       thus,    the     plain     language          of     the    statute    does    not

affirmatively permit the use of cash grants to pay property


       30
       Our analysis here, however, does not in any way abrogate
or overrule Sigma Tau Gamma Fraternity House Corp. v. City of
Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85 (1980).


                                               44
                                                                            No.       2015AP1858



taxes.    We presume, however——absent some textual evidence that

the legislature intended the word "include" to be interpreted as

a term of limitation——that the legislature's use of "include"

denominates     a    nonexclusive         list.       See      State       v.    Popenhagen,

2008 WI 55, ¶¶43-47, 309 Wis. 2d 601, 749 N.W.2d 611.                                Thus, the

plain    language      of    the    statute       also    does       not     affirmatively

prohibit use of cash grants allocated for projects costs to pay

property taxes.

    ¶65       The    fact    that     a     statute      does        not    affirmatively

prohibit a possibility is not, however, the standard.                                Rather,

    [a]ll legislative acts are presumed constitutional and
    we must indulge every presumption to sustain the law.
    Any doubt that exists regarding the constitutionality
    of the statute must be resolved in favor of its
    constitutionality.   Consequently, it is insufficient
    for a party to demonstrate that the statute's
    constitutionality is doubtful or that the statute is
    probably unconstitutional.    Instead, the presumption
    can be overcome only if the party establishes the
    statute's unconstitutionality beyond a reasonable
    doubt.
Madison Teachers, Inc., 358 Wis. 2d 1, ¶13 (citations omitted).
Thus,    to   establish       that    a     statute      violates          the       Uniformity

Clause, a plaintiff must demonstrate beyond a reasonable doubt

that the statute contravenes the rule that "taxation shall be

uniform."       Wis.    Const.       art.    VIII,      § 1.         This       is    not    what

Plaintiffs     alleged.        Plaintiffs         did    not     allege          facts      which

establish     that    cash    grants      are     intended      to    reimburse          owner-

developers for property taxes.                Nor did they allege facts which

establish that owner-developers in fact use cash grants to pay
property taxes, or that owner-developers are likely to do so.

                                            45
                                                                          No.       2015AP1858



Plaintiffs alleged only that a requirement that owner-developers

use   cash       grants    for   "project     costs"         imposes   "no      meaningful

restrictions."

      ¶66    Similarly, although Plaintiffs alleged that "millions

of dollars of incremental TID taxes [will] be paid directly to

the owner of property within the TID," they did not allege facts

which establish that the developer here in fact used that money

to pay its property taxes.                   Nor did they allege facts which

demonstrate        that    the   developer        here      was   likely       to    do    so.

Plaintiffs        alleged    only     that    the       project    plan    imposes         "no

meaningful        restrictions      except        that      the   developer         use   [the

money] to reimburse itself for 'project costs.'"

      ¶67    Thus, Plaintiffs' allegations fail to state a claim

upon which relief can be granted because, even if taken as true,

they establish only that the statute does not explicitly exclude

property taxes from the definition of "project costs"; in other

words, that the statute does not preclude the possibility that

developers could use cash grants to pay property taxes.                              This is
not sufficient to state a constitutional challenge under the

Uniformity        Clause    because    such       a    possibility     does         not   even

amount      to     an     allegation    that          the    statute      is     "probably

unconstitutional,"           let      alone           unconstitutional          beyond       a

reasonable doubt.           Madison Teachers, Inc., 358 Wis. 2d 1, ¶13.

Moreover, Plaintiffs' allegations fail to state a claim upon

which relief can be granted because, even if taken as true, they

establish only the possibility that the developer here could use
the funds to pay property taxes.                      This is not "enough heft to
                                             46
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'sho[w] that the pleader is entitled to relief.'"                             Data Key

Partners, 356 Wis. 2d 665, ¶26 (alteration in original) (quoting

Bell Atl. Corp., 550 U.S. at 557).                  "'[I]t gets the complaint

close    to   stating     a   claim,   but     without    some    further      factual

enhancement it stops short of the line between possibility and

plausibility        of    entitle[ment]        to   relief.'"           Id.    (second

alteration in original) (quoting Bell Atl. Corp., 550 U.S. at

557).

    ¶68       In sum, Plaintiffs' complaint was properly dismissed

as to declaratory judgment because it fails to state claims upon

which relief may be granted.             The first and second counts fail

because the City Common Council's findings of blight and the

JRB's "but for" assertions are legislative determinations that

do not present justiciable issues of fact or law; the third

count fails because it does not allege facts which plausibly

establish that the City's cash grant for TID 10 was used to

reimburse     the    developer's       costs    associated       with    demolishing

historic buildings; and the fourth count fails because it does
not allege facts which plausibly establish that cash grants are

intended or used to pay developers' property taxes.

                              C.   Certiorari Review
    ¶69       We    conclude,      however,     that     Plaintiffs'      first     and

second claims are reviewable under certiorari.                   Plaintiffs argue

that a "preference for certiorari review is an abdication of

judicial responsibility," and that it is insufficient because it
"would    entail     no    discovery    or     other     opportunity      to    assess


                                         47
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whether . . . [the]   incantations   of   'blight'   and     'but   for'

development are accurate."31    The City argues that common law

    31
       Plaintiffs cite three cases in support of their argument
that these are determinations susceptible to judicial fact
finding, none of which actually support their argument.       In
Fenton v. Ryan, we concluded that whether a proposed village
possesses the requisite attributes is a question of judicial
character because, if the attributes are not present, "the
uniformity of town and county government guaranteed by the
Constitution is invaded," 140 Wis. 353, 359, 122 N.W.2d 756
(1909); such questions of constitutionality are judicial
questions.   See, e.g., Gottlieb, 33 Wis. 2d at 415-16 ("We are
not concerned with the wisdom of what the legislature has done.
We are judicially concerned only when the statute clearly
contravenes some constitutional provision.").    In Town of Mt.
Pleasant v. City of Racine, we held that a city's determination
of its own boundaries was a legislative determination, and the
judicial question was limited to whether the boundary lines were
"reasonable in the sense that they were not fixed arbitrarily,
capriciously, or in the abuse of discretion."     24 Wis. 2d 41,
46, 127 N.W.2d 757 (1964) (citing Town of Fond du Lac v. City of
Fond du Lac, 22 Wis. 2d 533, 126 N.W.2d 201 (1964)).     And, in
Bechthold v. City of Wauwatosa, the petitioners challenged the
city's adherence to the procedure for advertising bids for
street repair, and the judicial questions were whether strict or
substantial compliance was required, and whether the undisputed
facts demonstrated that the city had complied, 228 Wis. 544,
551-58, 277 N.W. 657 (1938); Plaintiffs here do not dispute that
the City adhered to the correct procedure.

     Plaintiffs also claim that "in at least three published
cases, TIF actions were brought as declaratory actions." Two of
these cases are distinguishable on the basis that they sought a
declaration of constitutionality, which, as noted above, is a
proper question for the court.      See Kirley, 172 Wis. 2d 191;
Gottlieb, 33 Wis. 2d 408.     The third case never reached the
declaratory   question,  and   thus   provides  no  support  for
Plaintiffs' argument.    See Town of Baraboo v. Vill. of West
Baraboo, 2005 WI App 96, ¶¶31-37, 283 Wis. 2d 479, 699
N.W.2d 610.   Plaintiffs' reliance on Kaiser v. City of Mauston
is similarly misplaced because that case addressed the validity
of an ordinance under a statute, which is not the issue here.
99 Wis. 2d 345, 354-55, 299 N.W.2d 259 (1980).


                                48
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certiorari is the applicable standard of review because it is a

mechanism by which a court may test the validity of a decision

rendered by a municipality; is appropriate where, as here, no

statutory      appeal          process      has      been        created;           is    the    proper

standard      to      review       local        legislative                 functions;          and    is

consistent with the longstanding policy that "declaratory relief

is disfavored if there is a 'speedy, effective and adequate'

alternative        remedy."        We       conclude            that       certiorari       review     is

appropriate and adequate to address Plaintiffs' claims regarding

the municipality's findings of blight and "but for" assertions

because certiorari review is the mechanism by which a court

should     test      the       validity       of       a        municipality's             legislative

determinations.

    ¶70       "It is well established in this state that where there

are no statutory provisions for judicial review, the action of a

board    or   commission          may    be     reviewed          by       way   of       certiorari."

State    ex   rel.       Johnson       v.   Cady,          50    Wis. 2d 540,             549-50,     185

N.W.2d 306 (1971).              No statutory appeal process has been created
to review the formation of a TID; therefore, certiorari review

of the decisions of both the City Common Council and the JRB is

appropriate.        See Wis. Stat. § 66.1105; Olson, 252 Wis. 2d 628,

¶32 (Roggensack J., dissenting);                           see also          Ottman v. Town of

Primrose,      2011      WI      18,     ¶34,      332          Wis. 2d 3,          796     N.W.2d 411

("Certiorari        is     a    mechanism       by     which           a    court     may    test     the

validity of a decision rendered by a municipality.").




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     ¶71       Where, as here, there is no express statutory method

of   review,         common      law    certiorari     applies.            Ottman,        332

Wis. 2d 3, ¶35.

     When conducting common law certiorari review, a court
     reviews the record compiled by the municipality and
     does not take any additional evidence on the merits of
     the decision.   The courts review is limited to: (1)
     whether the municipality kept within its jurisdiction;
     (2) whether it proceeded on a correct theory of law;
     (3) whether its action was arbitrary, oppressive, or
     unreasonable and represented its will and not its
     judgment; and (4) whether the evidence was such that
     it might reasonably make the order or determination in
     question. . .
Id. (citation omitted).                 Additionally, "on certiorari review,

there     is    a    presumption        of    correctness      and    validity       to    a

municipality's         decision."            Id.,    ¶48.       This       standard       is

commensurate         with     our      established    deference       to     legislative

determinations.32           Therefore, certiorari review of the decisions

of both the City Common Council and the JRB is also an adequate

remedy.

     ¶72       The    record     before      us,   however,    does    not    contain      a
"record    compiled         by   the    municipality"       because    the    litigation


     32
       See, e.g., Town of Baraboo, 283 Wis. 2d 479, ¶18 (quoting
Town of Campbell v. City of La Crosse, 2003 WI App 247, ¶19, 268
Wis. 2d 253, 673 N.W.2d 696) ("The doctrine known as the 'rule
of reason' is applied by the courts to ascertain whether the
power delegated to the cities and villages has been abused in a
given case."); see also Fond du Lac, 22 Wis. 2d 533 (applying
the rule of reason to annexation); Joint Sch. Dist. No. 1, 56
Wis. 2d at 797 ("The trial court properly confined its review to
whether the State Appeal Board had jurisdiction and whether the
order evinced arbitrary or capricious action.").


                                              50
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below did not proceed to that point.                       See supra notes 5-7.              We

therefore remand the cause to the circuit court for certiorari

review of the decisions of the City Common Council and the JRB.

                                     IV.    CONCLUSION
       ¶73    On review, we consider two issues.                      First, we consider

whether dismissal of Plaintiffs' declaratory judgment claims was

proper.       We conclude that it was, because Plaintiffs have failed

to state claims upon which relief can be granted: the first and

second counts fail because the City Common Council's findings of

blight    and       the    JRB's    "but    for"      assertions         are   legislative

determinations that do not present justiciable issues of fact or

law; the third count fails because it does not allege facts

which plausibly establish that the City's cash grant for TID 10

was    used    to    reimburse      the    developer's          costs    associated        with

demolishing         historic       buildings;        and    the    fourth      count      fails

because it does not allege facts which plausibly establish that

cash    grants       are    intended       or    used      to   pay     owner-developers'

property taxes.
       ¶74    Second,       we     consider      whether        certiorari        review     is

appropriate.         We conclude that it is, because certiorari review

is the appropriate mechanism for a court to test the validity of

a legislative determination.                    The record before us, however,

does not contain a municipal record sufficient to enable our

review.        Accordingly,         we     remand     to     the   circuit        court    for

certiorari review of Plaintiffs first and second claims.




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    ¶75    Thus, we affirm the decision of the court of appeals

on the other grounds.



    ¶76    By the Court.—The decision of the court of appeals is

affirmed   and   the   cause   is   remanded   for   further   proceedings

consistent with this opinion.




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       ¶77    REBECCA       GRASSL        BRADLEY,         J. and         DANIEL      KELLY,

J.     (dissenting).           The    court       held    that   Plaintiffs'         richly-

detailed      and     amply      supported         25-page       Complaint        does     not

sufficiently state a claim.                 It also said Plaintiffs may not

request declaratory relief on their claims that the City of Eau

Claire (the "City") lacked authority to expand TID #8 or create

TID #10.      And ignoring the obvious fungibility of money, it said

Plaintiffs' assertion that developers who were reimbursed out of

TID funds for demolishing historic buildings did not plausibly

allege that TID funds were used to pay for demolishing historic

buildings.

       ¶78    The court's decision forecloses taxpayers from ever

seeking declaratory judgment when municipalities violate the TIF

statutes.       Our court (and the court of appeals) sidestepped the

complex      substantive      issues,     incorrectly         applied      the      law,   and

deprived Plaintiffs of their rights.                        We write separately to

explain      why:     (1)     Plaintiffs        have     standing     to    pursue       their
Complaint; (2) declaratory judgment is an appropriate avenue for

seeking relief; and (3) the Complaint sufficiently alleges facts

to    support    each    claim,      although       not    every    claim      is    legally

supportable.        We specifically address why the factual existence

of "blight" is justiciable, why Plaintiffs' cash grant claim

should    have      survived     a   motion       to     dismiss,    and    why     TIDs   in

general, and these cash grants specifically, do not implicate

the    Uniformity       Clause       of   the      Wisconsin       Constitution.           We
respectfully dissent.

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                                      I.    BACKGROUND1

       ¶79     The     City   expanded        TID       #8    and      created      TID        #10   in

conjunction with a development known as the Confluence Project.

Our    statutes        authorize      municipalities              to      create        TIDs    as   a

mechanism       to     fund   any     of     four      types      of      projects:            blight

elimination          (Wis.    Stat.    § 66.1105);            urban        rehabilitation            or

conservation (Wis. Stat. § 66.1337(2m)); industrial development

(Wis. Stat. § 66.1101); or promotion of mixed use development

(Wis.       Stat.    § 66.1105(2)(cm)).                The    City        claimed       it   amended

TID #8 and created TID #10 to combat blight.                                     The controlling

statute defines "blighted area" as either:                                (1) a slum area or

an area that endangers life or property and is detrimental to

health, safety, morals, or welfare; or (2) a predominantly open

area that consists primarily of an abandoned highway corridor or

demolished          structures        that        substantially            impair         community

growth.       See Wis. Stat. § 66.1105(2)(ae)1.

       ¶80     The Confluence Project engendered considerable debate,

which focused primarily on whether, as a factual matter, the
TIDs       actually    comprised       blighted         areas.            At     public      hearings

addressing       the    TIDs,    those       opposed         to     the    project        presented

evidence       that    the    areas        were       not    blighted,           that    the    areas

contained historic buildings, and that redevelopment of some of

       1
       This section primarily recounts facts and reasonable
inferences from Plaintiffs' Complaint. In reviewing a motion to
dismiss, we accept as true the alleged facts and all reasonable
inferences therefrom. See Data Key Partners v. Permira Advisers
LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693. We draw
all legal conclusions independently. See Walberg v. St. Francis
Home, Inc., 2005 WI 64, ¶6, 281 Wis. 2d 99, 697 N.W.2d 36.


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the buildings was already underway and would occur without the

TIDs and without the Confluence Project.

      ¶81   On September 9, 2014, the Eau Claire City Council (the

"City Council") approved the amendment to TID #8 and adopted a

resolution to that effect.           Nothing in the minutes from that

meeting indicates the City Council had any evidence that the

area was actually blighted.          The City Council's resolution did

not contain any specific facts documenting or explaining why the

Council found "not less than 50%, by area, of the real property

within the district is . . . a blighted area."                On September 26,

2014, the Joint Review Board (the "Board")2 approved the City

Council's resolution expanding TID #8.

      ¶82   At the public hearing on TID #10, residents opposed to

its   creation    presented     evidence   that   the    City's    own   records

prove the area was not blighted.           Nonetheless, the City Council

adopted a resolution approving TID #10 on October 14, 2014.

Although the resolution said that "not less than 50%, by area,"

was a blighted area in "need of rehabilitation or conservation,"
Plaintiffs say there is no evidence to support this finding.                   On

October     22,   2014,   the     Board    adopted      the     City   Council's

resolution, claiming the development would not occur without the

creation of TID #10.

      ¶83   Plaintiffs filed a Notice of Claim and Injury with the

City claiming the actions related to the TIDs were unlawful,

      2
       Wisconsin Stat. § 66.1105(4m) describes the role and
responsibility of the Joint Review Board. The majority opinion
sets forth the full text of § 66.1105(4m) in ¶41.


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violated       the     TIF    statutes,          and    injured        the    taxpayers     by

obligating them to pay higher taxes.                          The Notice advised that

disallowance of the claim would cause the taxpayers to file a

declaratory          judgment    action.             The      City     did    not    respond.

Instead,       the    City    Council      adopted       a    resolution      appropriating

$9,976,100 to the project plans for TID #8 and $5,945,800 for

TID #10.        It also adopted a resolution authorizing issuance of

bonds to be funded by the incremental revenue from TID #8 and

TID #10.

         ¶84   Subsequently,         Plaintiffs         filed    a     Complaint      seeking

declaratory      judgment       on     four      claims:        (1)    the   City    did   not

comply with the TIF statutes in expanding TID #8; (2) the City

did not comply with the TIF statutes in creating TID #10; (3)

the City unlawfully used TID funds to pay for demolition of

historic       buildings;       and     (4)      the     cash    grants       violated     the

Uniformity Clause.             The Complaint alleged an alternative fifth

claim "for certiorari review of the actions taken by the City

Council and the Joint Review Board."
         ¶85   The City denied Plaintiffs' allegations and moved to

dismiss the Complaint.            As material here, the City claimed:                      (1)

Plaintiffs did not have standing to bring a declaratory judgment

or   a    certiorari         action;       (2)    the    TID    resolutions         are    non-

justiciable legislative enactments; (3) the Complaint fails to

state a claim and any claim based on demolition of the historic

buildings is moot; and (4) this court already declared the TIF

statutes       constitutional         in    Sigma       Tau    Gamma    Fraternity        House
Corp.     v.    City    of    Menomonie,          93    Wis. 2d 392,         288    N.W.2d 85

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(1980).      The circuit court granted the City's motion, holding

Plaintiffs     did    not    have     standing,       declaratory        judgment     was

inappropriate because the case presented a political question,

and the TIF statutes are constitutional.

       ¶86   The court of appeals affirmed in part and reversed in

part.     It agreed with the circuit court that Plaintiffs did not

have    standing      to     seek     a   declaratory         judgment       and     that

declaratory judgment is an inappropriate avenue to challenge a

City's factual findings.             See Voters with Facts v. City of Eau

Claire, 2017 WI App 35, ¶¶2-3, 376 Wis. 2d 479, 899 N.W.2d 706.

It held Plaintiffs did not sufficiently allege a violation of

the    TIF   statutes,      their    claim       regarding   illegal      payment     for

demolition of historic buildings was speculative, and they did

not sufficiently allege a constitutional violation.                            Id.     It

decided, however, that Plaintiffs had the right to certiorari

review of Plaintiffs' first and second claims, and remanded to

the circuit court.          Id., ¶60.            We granted Plaintiffs' petition

for review.
                                    II.   ANALYSIS

                                    A.    Standing

       ¶87   The court "assumes" standing, but does not address it.

In this case, the circuit court decided Plaintiffs did not have

standing     at     all,    and     the   court       of   appeals       decided     that

Plaintiffs did not have standing to seek declaratory judgment.

Plainly,      the    question       of    "standing"         in    the     context     of

declaratory judgment claims needs some attention.                            We should
provide guidance on this issue so it does not readily recur.                           We

                                             5
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write to explain why Plaintiffs had standing to assert their

claims.

                   1.    Standard of Review and Applicable Law

       ¶88    Whether a plaintiff has standing to bring suit is a

question of law we review de novo.                             See Krier v. Vilione, 2009

WI 45, ¶14, 317 Wis. 2d 288, 766 N.W.2d 517.                                          Taxpayers have

standing when the complaint alleges the taxpayer has or will

sustain       some       pecuniary          loss        as     a    result           of    an        illegal

expenditure         of    public       funds.            S.D.       Realty       Co.      v.     Sewerage

Comm'n.,      15     Wis. 2d 15,            21-22,       112       N.W.2d       177       (1961).        "A

taxpayer      [has]       a    financial       interest            in    public       funds. . . . "

Id. at 22.         Standing exists even when the pecuniary loss alleged

is   "infinitesimal."                 Id.      The       merits         of   the      claim      have     no

bearing on whether standing exists.                            Kaiser v. City of Mauston,

99     Wis. 2d 345,            360-61,       299        N.W.2d 259             (Ct.       App.        1980),

overruled      on       other    grounds       by       DNR    v.       City    of     Waukesha,         184

Wis. 2d 178,            191,    515     N.W.2d 888             (1994)          (notice          of    claim

statute) (subsequent case limiting DNR's notice of claim holding
omitted); Hart v. Ament, 176 Wis. 2d 694, 699, 500 N.W.2d 312

(1993).

                                       2.     Application

       ¶89    We conclude Plaintiffs have standing to pursue a claim

that    the    City       of    Eau     Claire          did    not       follow       the       requisite

procedures outlined in the TIF statutes when the City decided to

create TID #10 and expand TID #8.                             Plaintiffs' claim, if true,

necessarily         means       the    taxpayers             will       suffer       pecuniary          harm
because the City will expend funds without any legal basis.

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Plaintiffs' Complaint alleges that:              (1) they are taxpayers (two

of Plaintiffs actually own property within a TID district and

assert it is not blighted); (2) the City "failed to satisfy the

statutory    requirements"     and   did    not    make    required       statutory

findings before proceeding with the TIDs; (3) the areas within

the TIDs are in fact not blighted areas; and (4) Plaintiffs were

harmed as a result of the City's "unlawful actions as their tax

dollars will be spent in an unlawful manner, tax revenues from

the incremental growth in TID #8 will be unavailable for general

purposes such as      schools, roads, and public safety, and the

incremental tax revenues from TID #8 will be unavailable for

other   taxing   jurisdictions."           The   Complaint        makes   the   same

assertions about TID #10.

    ¶90     These   allegations      easily      confer    taxpayer       standing.

"An allegation that the city has spent, or proposes to spend,

public funds illegally is . . . sufficient to confer standing on

a taxpayer."     Kaiser, 99 Wis. 2d at 360.               When we inquire into

standing, we do not evaluate a plaintiff's likelihood of success
on the merits.      That comes later.            When the court of appeals

decided that the City's expenditure of tax funds was legal, it

improperly    explored   the   merits      of    Plaintiffs'        claims.      See

Voters with Facts, 376 Wis. 2d 479, ¶¶18-59.                 The circuit court

also erred in its standing analysis by passing on the question,

believing it to be political rather than legal.                     This is error

both procedurally and conceptually because it requires a defense

of the merits before an opportunity to develop factual support.



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       ¶91    A     taxpayer's          complaint     alleging       past     or     future

pecuniary         loss    based    upon     an     unlawful     expenditure        of    tax

revenues has long been deemed sufficient to establish standing.

Over one hundred years ago, this court recognized that "[e]very

taxpayer, great or small, has an interest in the disposition of

county funds.            Courts will not stop to balance differences or

enter into computations to ascertain just how much the taxpayer

will be likely to suffer . . . ."                    Mueller v. Eau Claire Cty.,

108 Wis. 304, 311, 84 N.W. 430 (1900).                    Rather, when a taxpayer

shows "'an active or threatened invasion or destruction of a

distinct right belonging to himself or to the body of citizens

for    whom       he     sues . . . the          taxpayer's      right      to     sue       is

recognized.'"            Id. at 312 (citation omitted).                   See also Hart,

176    Wis. 2d at        698-99        (taxpayer    challenge       to    transfer      of   a

county museum to a private organization); State ex rel. Wis.

Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988)

(taxpayer challenge to "Frankenstein" veto); City of Appleton v.

Town    of    Menasha,       142        Wis. 2d 870,     419     N.W.2d      249     (1988)
(taxpayer challenge to statutory scheme for apportionment after

annexation of a town); Tooley v. O'Connell, 77 Wis. 2d 422, 439,

253 N.W.2d 335 (1977) (taxpayer challenge to statutory plan for

financing city schools from property taxes); Buse v. Smith, 74

Wis. 2d 550, 563, 247 N.W.2d 141 (1976) (taxpayer challenge to

negative-aid school financing); State ex rel Sundby v. Adamany,

71 Wis. 2d 118, 124, 237 N.W.2d 910 (1976) (taxpayer challenge

to    constitutionality           of    veto);     Thompson    v.    Kenosha     Cty.,       64
Wis. 2d 673, 679-81, 221 N.W.2d 845 (1974) (taxpayer challenge

                                              8
                                                               No.   2015AP1858.rgb&dk


to statutory creation of countywide assessor system); Vill. of

W. Milwaukee v. Area Bd. of Vocational, Tech. and Adult Ed., 51

Wis. 2d 356, 365-66, 187 N.W.2d 387 (1971) (taxpayer challenge

to statute allowing for area vocational education districts);

Columbia Cty. v. Bd. of Trs. of Wis. Ret. Fund, 17 Wis. 2d 310,

116 N.W.2d 142 (1962) (taxpayer challenge to statute mandating

all   counties    join    the    welfare      fund);    Fed.    Paving     Corp.    v.

Prudisch, 235 Wis. 527, 293 N.W. 156 (1940) (taxpayer challenge

to statute allowing certain cities to pay funds under contracts

later found void).

      ¶92   Despite       longstanding        and     clear-cut      law    to     the

contrary,   the    circuit      court   and    the     court   of    appeals     ruled

Plaintiffs lack standing.          Instead of correcting the error, this

court dodged it, which means it will just come back to us again.

The law of standing requires nothing more than Plaintiffs' claim

that they are harmed by the unlawful expenditure of their tax

dollars.

                   B.    Dismissal of Counts One and Two
      ¶93   The first two counts of the Complaint challenge the

City's authority to amend TID #8 and create TID #10.                       They seek

a   declaration    that    the   City    may    not    exercise      TID   authority

unless (as relevant here) the proposed districts encompass the

statutorily-prescribed           minimum       concentration          of    blighted

properties.       This court dismissed these counts for failure to




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state a claim because, it said, blight is a non-justiciable

legislative determination.3

     ¶94     This conclusion is not possible without indulging two

foundational errors.         First, the court never faced, and so did

not answer, the central question Plaintiffs raised:                           Whether the

statutorily-mandated preconditions to the City's exercise of TID

authority were satisfied.           And second, the court made a category

error    when,    for    purposes    of   justiciability,               it    assumed   the

existence    of    blight    is    the    same    thing      as     a    municipality's

response to it.

                    1.    Controlling Legal Principles

     ¶95    Declaratory      judgments,         such    as    the       one    Plaintiffs

requested, are broadly available under our Uniform Declaratory

Judgment    Act,    which    says:        "Courts      of    record          within   their

respective   jurisdictions        shall    have      power    to        declare   rights,

status, and other legal relations whether or not further relief

is or could be claimed.            No action or proceeding shall be open

to objection on the ground that a declaratory judgment or decree
is prayed for."         Wis. Stat. § 806.04(1).              Such declarations are

available    so    long     as    there    is    a     justiciable           controversy.

Milwaukee Dist. Council 48 v. Milwaukee Cty., 2001 WI 65, ¶37,



     3
       Majority op., ¶4 ("First, we consider whether dismissal of
Plaintiffs' declaratory judgment claims was proper. We conclude
that it was, because Plaintiffs have failed to state claims upon
which relief can be granted:    the first and second counts fail
because the City Common Council's findings of blight . . . are
legislative determinations that do not present justiciable
issues of fact or law . . . .").


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244   Wis. 2d 333,      627   N.W.2d 866     ("A   declaratory         judgment    is

fitting when a controversy is justiciable.").

      ¶96     We have previously said that an issue is justiciable,

for purposes of declaratory judgment actions, when there is:

      (1) A controversy in which a claim of right is
      asserted against one who has an interest in contesting
      it.

      (2) The controversy must          be     between    persons       whose
      interests are adverse.

      (3) The party seeking declaratory relief must have a
      legal interest in the controversy——that is to say, a
      legally protectible interest.

      (4) The issue involved in the controversy must be ripe
      for judicial determination.
      Loy    v.   Bunderson,    107   Wis. 2d 400,       409,    320    N.W.2d 175

(1982)      (internal    quotation     marks       and    citation       omitted).

Justiciability, however, does not depend on the ultimate merits

of the claim.       Tooley v. O'Connell, 77 Wis. 2d 422, 434–35, 253

N.W.2d 335 (1977) ("The merits of plaintiffs' cause of action do

not determine its justiciability.").

      ¶97    As the court recognized, the substantive law informing
Plaintiffs' claims controls what they must plead.                  See majority

op., ¶27 ("[T]he sufficiency of a complaint depends on [the]

substantive law that underlies the claim made because it is the

substantive law that drives what facts must be pled." (quoting

Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶31, 356

Wis. 2d 665,      849   N.W.2d 693)).         It   also    supplies       the     raw

material for the justiciability analysis.
      ¶98     The contest with respect to Counts One and Two is

over the City's authority to expand TID #8 and create TID #10.
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The Tax Increment Law (Wis. Stat. § 66.1105) is the source of

that authority:        "In addition to any other powers conferred by

law, a city may exercise any powers necessary and convenient to

carry out the purposes of this section, including the power to:

(a) Create tax incremental districts and define the boundaries

of the districts . . . ."             § 66.1105(3).       But this is not an

absolute grant of power.             That is to say, the legislature did

not     authorize     municipalities        to   create   TIDs     whenever     and

wherever they wish.            To the contrary, a municipality may not

create a TID unless all of the statutorily-defined prerequisites

are satisfied.        The legislature introduced the operative portion

of    the    Tax   Increment   Law   with    this   command:      "In   order    to

implement the provisions of this section, the following steps

and plans are required . . . ."             § 66.1105(4).

       ¶99    One of the requirements a municipality must satisfy

before it may create a TID is adoption of a resolution finding

that:

       [n]ot less than 50 percent, by area, of the real
       property within the district is at least one of the
       following: a blighted area; in need of rehabilitation
       or conservation work, as defined in s. 66.1337 (2m)
       (a); suitable for industrial sites within the meaning
       of s. 66.1101 and has been zoned for industrial use;
       or suitable for mixed-use development . . . .
Wis. Stat. § 66.1105(4).          An area is blighted if it meets any of

the following descriptions:

       a. An area, including a slum area, in which the
       structures, buildings or improvements, which by reason
       of dilapidation, deterioration, age or obsolescence,
       inadequate provision for ventilation, light, air,
       sanitation, or open spaces, high density of population
       and overcrowding, or the existence of conditions which

                                        12
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       endanger life or property by fire and other causes, or
       any combination of these factors is conducive to ill
       health, transmission of disease, infant mortality,
       juvenile delinquency, or crime, and is detrimental to
       the public health, safety, morals or welfare.

       b. An area which is predominantly open and which
       consists primarily of an abandoned highway corridor,
       as defined in s. 66.1333 (2m) (a), or that consists of
       land upon which buildings or structures have been
       demolished and which because of obsolete platting,
       diversity of ownership, deterioration of structures or
       of site improvements, or otherwise, substantially
       impairs or arrests the sound growth of the community.
Wis. Stat. § 66.1105(2)(ae)1.

       ¶100 That is the substantive law against which we compare

Counts One and Two.        Plaintiffs make three relevant allegations.

In the first, they say the City acted solely on the basis that

the property within the TIDs was blighted.                In the second and

third, they say that although the City claimed the property

within    TID   #8   and   TID   #10   (respectively)    was     blighted,     the

record before the City contained no evidence this was true.

When we consider the sufficiency of a complaint, "we accept as

true all facts well-pleaded in the complaint and the reasonable

inferences therefrom."       Data Key Partners, 356 Wis. 2d 665, ¶19.

       ¶101 Therefore, the proper analysis accepts the truth of

the following two propositions as the starting point:                   (1) The

City     exercised   TID    authority    based    on    its    assertion      that

property within the districts is blighted; and (2) there is no

evidence    the   City's   assertion     is   true.     Counts    One   and    Two

unmistakably challenge whether the preconditions to the City's

exercise of TID authority have been satisfied.                    Although the
court did not say so explicitly, it appears to have concluded


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these claims are not justiciable because they do not satisfy the

third prong of the Loy formula:                  "The party seeking declaratory

relief must have a legal interest in the controversy——that is to

say, a legally protectible interest."                   Loy, 107 Wis. 2d at 409-

10 (internal quotation marks and citation omitted).                          In other

words, the court concluded that the people of Wisconsin have no

legally protectible interest in ensuring municipalities exercise

TID authority only when the legislature says they may.                       And that

brings us to the first of the court's two foundational errors.

                   2.    The Court Assumed Away the Question

      ¶102 The court completely missed that Plaintiffs' challenge

goes to whether the preconditions to the City's exercise of TID

authority have been satisfied with respect to the areas defined

by   TIDs    #8    and    #10.      Steve   Martin,     the   comic    genius,     once

described how to be a millionaire and never pay taxes.                         First,

he said, get a million dollars.                   The court has done something

similar in assessing the City's authority with respect to TIDS

#8 and #10.             First, it said, assume the authority to create
them.       The    court    spent    most   of    its   analysis      describing    the

procedure     by    which    a    municipality      documents    that    assumption.

But Plaintiffs' actionable concern is not that the City failed

to do its paperwork properly.               Their Complaint alleges that the

City lacked the authority to create (or expand) the TIDs because

the statutorily-mandated factual predicate to the exercise of

that authority does not exist.

      ¶103 The          court's     analysis      started     with     the   unvoiced
assumption that the City had the authority to do what it did,

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and in so doing, it assumed away Plaintiffs' actual challenge.

Here       is   how   the   court    began:             "To    determine    whether      the

allegations are sufficient to state a claim upon which relief

may be granted, we must interpret the statute; specifically, we

must determine what the statute means when it requires that the

local           legislative           body             adopt        a        'resolution

which . . . [c]ontains findings.'"                      Majority op., ¶30.         Why on

earth would we do that?               No one doubts the City's resolution

contains findings.            What they doubt is whether they reflect

reality.        Nonetheless, the court lamented that "finding" is a

statutorily-undefined          term     (as       if     we    do   not    know   what     a

"finding" is) before settling on a dictionary definition.4                            Then,

without explanation, we leapt from Black's definition to the

conclusion       that   the   City    need        not    provide    evidence      for    its

findings.5       Let's stipulate that this non sequitur could be saved

by some hitherto unknown logic——why would it matter?                          The manner

in which a municipality must document its findings says nothing

at all about whether the findings must be, not to put too fine
of a point on it, true.

       4
       Majority op., ¶33 ("A determination by a judge, jury, or
administrative agency of a fact supported by the evidence in the
record." (quoting Finding of fact, Black's Law Dictionary 749
(10th ed. 29 2014)). That's a fine definition of a finding of
fact, although the court's long history with findings of fact
probably makes a dictionary definition unnecessary.
       5
       Majority op., ¶33 ("Given this ordinary meaning of
'findings', the plain language of the statute does not require
that the local legislative body——here, the City Common Council——
itemize the evidence in the record that supports its finding of
blight.").


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      ¶104 The legislature granted municipalities the authority

to create TIDs.        But it placed a gate with a combination lock in

front of that grant of authority.                 The gate will not swing open

unless the statutorily-prescribed combination of conditions is

fulfilled.         In this case, the City is trying to access TID-

creating authority using the blight combination.                        Plaintiffs say

the City did not get it right, and so the gate did not open.

The court's response to Plaintiffs' claim was to consider the

nature of the record the City must make as it jumps the gate.

That is not what the court was supposed to do.                         It was supposed

to    consider      whether       the   people    of     Wisconsin        may    seek     a

declaration that the City may not jump the gate.                        That, however,

was only the first of the court's foundational errors.

                       3.     The Court's Category Error

      ¶105 The balance of the court's opinion on Counts One and

Two   comprised      its    mistaken     conclusion       that    the    existence      of

blight   is    a    non-justiciable       question       of     legislative      policy.

This is a profoundly disturbing category error, inasmuch as it
caused   the       court    to   conclude     that      facts    are    contingent      on

municipal     policies——a        conclusion      that    obtains       nowhere   but     in

Orwellian dystopias.             So the court did not recognize that (1) a

municipality's policy, and (2) the facts on the ground to which

the policy responds, do not fall into the same category.                                The

first is generally not justiciable; the second is.

      ¶106 The court created this error when it observed that our

statutes define "blight," in part, with reference to some of the
maladies that municipalities have the authority to address:

                                          16
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            The key language in each of these [blight-
       related] statutes is that the "area," in its current
       state, "is detrimental to the public health, safety,
       morals, or welfare."    "Public safety, public health,
       [and] morality . . . are some of the more conspicuous
       examples of the traditional application of the police
       power to municipal affairs," Berman v. Parker, 348
       U.S. 26, 32 (1954), and a "municipality's exercise of
       its police power has traditionally been accorded
       deference by reviewing courts."      Nowell v. City of
       Wausau,   2013   WI 88,   ¶46,   351    Wis. 2d 1, 838
       N.W.2d 852.
Majority         op.,       ¶37.      Because     it   saw    similar        phrases    in    the

description of a municipality's authority and the situations a

municipality may address, the court apparently thought they must

be    in    the        same    category     for   purposes       of   the     justiciability

analysis.             They are not.

       ¶107 The court's category error is the consequence of not

recognizing the difference between subjects and objects.                                       The

subject          is    the    municipality's       authority;         the    object     is    the

situation to which the municipality may apply that authority.

Yes, municipalities have authority to address matters of public

health,          safety,       morals,      and    welfare.           And      yes,     certain

properties and areas are blighted (something that affects public
health, safety, morals, and welfare).                        This inexorably leads to

the    unremarkable            conclusion       that   municipalities          have     certain

authority (the subject) to remedy properties or areas that are

blighted (the object).                  A logically-ordered universe, however,

does       not    allow       the   conclusion      that     this     means    subjects        and

objects are the same thing.                       Just because municipalities have

authority             to    address    blight     does     not      mean     they     have     the
authority to define what blight is.                      The legislature has already

taken      care        of    that   task.     It told        municipalities,          in     great
                                               17
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detail, what "blighted area" means in the context of the Tax

Increment     Law.        See     Wis.     Stat.    § 66.1105(2)(ae)1.6                 This

conflation     of    subjects       and     objects        guaranteed      the    court's

justiciability analysis would produce the wrong answer.

    ¶108 Because         of      that     conflation,       the    court     mistakenly

concluded that a challenge to the City's description of reality

is as non-justiciable as its policy decisions responding to that

reality.      Specifically, the court said that "findings of blight

are legislative determinations that 'do[ ] not raise justiciable

issues of fact or law.'"            Majority op., ¶36 (quoting Joint Sch.

Dist.   No.    1    v.   State    Appeal     Bd.,     56    Wis. 2d 790,         794,   203

N.W.2d 1 (1973)).         No, findings of blight are most assuredly not

legislative determinations.               And the court cited not a single




    6
       It really could not be otherwise.    If the authority to
address blight encompassed the authority to define blight, there
would be no end to a municipality's authority. An enterprising
municipality could create authority ex nihilo through the simple
expedient of calling any condition it wished to address
"blighted."


                                            18
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authority to explain how this could possibly be so.7              What to do

about blight (if anything) is a legislative determination.                 But

the existence of blight (as defined by the legislature) cannot

be   a   legislative   determination       unless,   alone      amongst    all

governmental entities and sentient beings, municipalities have

the power to conform the world to their dictates.                  The first

category   involves    the   exercise   of    legislative      judgment    and

discretion.     The    second   category     involves    the    legislators'

accurate apprehension of the world around them.                  The court's

consistent failure to distinguish between these two categories

resulted in its implied holding that municipalities are entitled

to their own facts.

     ¶109 Without that category error, none of the authorities

the court cited would support its position.             Not one.      Each of

the cases on which it relied addresses matters in the first

category——that is, the exercise of a legislative body's judgment


     7
       The immediately preceding quote from the court's opinion
looks like it might contradict our statement, but it does not.
Majority op., ¶36 (quoting Joint Sch. Dist. No. 1 v. State
Appeal Bd., 56 Wis. 2d 790, 794, 203 N.W.2d 1 (1973)).       The
Joint Sch. Dist. No. 1 case had nothing to do with blight
findings.   In fact, the Joint Sch. Dist. No. 1 court concluded
that the dispute had nothing to do with findings at all.      It
instead concerned "the wisdom and advisability of the proposed
reorganization" of a school district. Id. at 795. The sentence
fragment the court cherrypicked says, in full, this:      "As a
consequence of these holdings, we have concluded that the merits
of   a   school   district  reorganization   is  a   legislative
determination of public policy questions which does not raise
justiciable issues of fact or law." Id. at 794. "Public policy
questions" are quintessential non-justiciable issues.        The
existence of a fact, at least outside Orwell's 1984, is never
contingent on a public policy.


                                   19
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and discretion.           For example, Joint Sch. Dist. No. 1 did not say

that    all    legislative          determinations          are   non-justiciable.                It

said "legislative determinations[s] of public policy questions"

are not justiciable.             Joint Sch. Dist. No. 1, 56 Wis. 2d 790 at

794 (emphasis added).                  That, of course, is indubitably true.

The    issue    in     Joint     Sch.     Dist.       No.    1    was      the    "wisdom        and

advisability         of    the        proposed       reorganization"             of    a    school

district.        Id. at 795.             The contest was not over objective

reality, such as whether the school district did or did not

exist.        It was over the form the district ought to take, the

resolution of which necessarily rests on the legislative body's

prudential      exercise         of    discretion.           That       is    what     made      the

legislative determination non-justiciable.

       ¶110 Similarly, Buhler v. Racine Cty., 33 Wis. 2d 137, 146

N.W.2d 403       (1966),         addressed        questions           of      discretion         and

judgment, not the reality of the world to which that discretion

and    judgment      would     be     applied.         The    question         there       was   the

propriety       of     certain         zoning        classifications.                 The    court
concluded       that      zoning       decisions       are    largely         non-justiciable

because they are based on the "wisdom" and "desirability" of the

varying       classifications           when     applied         to   the      properties         in

question.        Id.at      146-47.        If    the     court's        decision       today      is

correct, then not only the wisdom of the zoning would be non-

justiciable, but also the very nature of the property to which

the zoning applied.            Do we really need to say that the nature of

the property does not care about what the municipality thinks of



                                                20
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it?       It is what it is, notwithstanding any number of municipal

"findings" to the contrary.

          ¶111 The court says, in a footnote, that Berman v. Parker,

348 U.S. 26 (1954), supports its proposition that the existence

of blight is a non-justiciable legislative determination.                                  See

majority op., ¶39, n.20.                  But it does not explain how.                     Nor

could      it,    because     Berman     recognizes         the   distinction        between

subjects and objects we have laid out in this dissent:                                    "Once

the object is within the authority of Congress, the right to

realize it through the exercise of eminent domain is clear.                                For

the power of eminent domain is merely the means to the end."

Berman, 348 U.S. at 33.                  As here, the "object" in Berman was

blighted         property.        But     as    Berman      recognized,          before    the

government could act, the object had to have been "within the

authority of Congress [the subject]."                        The authority at issue

there was eminent domain, a power granted to the District of

Columbia without preconditions.                 Here, the authority in question

is the creation of a TID, an authority that does not exist
unless and until certain legislatively-prescribed preconditions

have       been    fulfilled.           Berman's      lesson      is     that,     once    the

legislative body has authority (the subject) to operate on the

object (blight), the manner in which it exercises that authority

is    a    legislative       determination          committed     to     the     legislative

body's sound discretion and prudence.                       Consequently, Berman can

have      nothing    to     say   here     unless      we    confound         subjects     and

objects.



                                               21
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          ¶112 For essentially the same reasons, David Jeffrey Co. v.

City of Milwaukee, 267 Wis. 559, 578, 66 N.W.2d 362 (1954), does

not support the court's assertion that the existence of blight

is a legislative determination.                    The issue in David Jeffrey Co.

was not whether a municipality has unreviewable power to declare

something blighted that is not; it was whether the expressed

purpose for eliminating blight in the City of Milwaukee could be

considered a "public use" of private property (as required by

Article I, sec. 13 of our State Constitution).                         After converting

"public use" into "public purpose," the David Jeffrey Co. court

said "[t]he determination of what constitutes a public municipal

purpose is primarily a function of the legislative body, subject

to    a    review    by     the    courts,    and     such    determination          by    the

legislative body will not be overruled by the courts except in

instances where that determination is manifestly arbitrary or

unreasonable."         Id. at 579.          This is so because the purpose for

applying      the    municipality's          authority       (the     subject)       to    the

blighted areas (the object) is a matter of judgment, discretion,
and   prudence.           The     David    Jeffrey    Co.    court     said    nothing      to

suggest       that    the       existence     of     blight     (the       object)    is     a

legislative determination.

          ¶113 The   last       case   on    which    the     court       relies    for    its

proposition, Nowell v. City of Wausau, 2013 WI 88, ¶46, 351

Wis. 2d 1, 838 N.W.2d 852, provides no more support than any of

the others.          There, a bar owner asked the court to review the

City of Wausau's decision to not renew its liquor license.                                 The
Nowell      court    observed       that    the    decision    to     grant    or    deny    a

                                              22
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liquor license is committed to the municipality's unconstrained

discretion.       Unsurprisingly, that court correctly concluded the

municipality's authority was legislative in nature, and subject

to     only    certiorari        review.                But    Nowell     can          provide    no

instruction here because Plaintiffs are not asking whether the

City exercised its TID authority in a prudent manner; they are

asking whether the preconditions to unlimbering that authority

have been satisfied.            Nowell does not——and cannot——tell us that

the    existence        of    blight       is       a     non-justiciable              legislative

determination.        And the court has identified no case capable of

suggesting it is.

                                                *

       ¶114 The      proper      justiciability               analysis    would          recognize

that facts are not contingent on a municipality's prudential

exercise of its discretion.                 Instead, if the world is to make

any    sense    at   all,      the   exact          opposite      must        be       true:     The

municipality's policies must be contingent on the facts.                                         And

that    means    that        facts   are    justiciable,           while           policies      are
generally not.        There is no mystery to this.                      Justiciability, as

the court noted, implicates the separation of powers.                                     Baker v.

Carr, 369 U.S. 186, 217 (1962) ("It is apparent that several

formulations which vary slightly according to the settings in

which the questions arise may describe a political question,

although each has one or more elements which identify it as

essentially a function of the separation of powers."); Majority

op.,    ¶39    ("This    is    because      de       novo     review     of        a   legislative
determination violates the doctrine of separation of powers.").

                                                23
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We respect the separation of powers, in part, by not second-

guessing a legislative body's policy choices.         Those choices are

generally not justiciable because they comprise the prudential

exercise of judgment and discretion, variables that by their

nature   are   not     susceptible   to   judicial     inquiry.         But

legislatures have no monopoly on reality, and so there is no

conceivable violation of the separation of powers when we look

at facts for ourselves.       That is to say, while municipalities

are entitled to their choice of policies, they are not entitled

to their own facts.8


     8
       Contrast this with, for example, Plaintiffs' assertion
that they may have a declaration that the City did not fulfill
the condition that the Confluence Project would not occur but
for the creation and expansion of the TIDs.     The statute says
"[t]he board may not approve the resolution under this
subdivision unless the board's approval contains a positive
assertion that, in its judgment, the development described in
the documents the board has reviewed under subd. 1. would not
occur without the creation of a tax incremental district." Wis.
Stat. § 66.1105(4m)(b)2. (emphasis added).       Access to TID
authority does not depend on whether the project, in fact, would
not occur but for the TID.    With respect to this precondition,
authority depends on the municipality's judgment that it would
not occur but for the TID.          We traditionally review a
municipality's exercise of judgment under common-law certiorari
standards.   See, e.g., Ottman v. Town of Primrose, 2011 WI 18,
¶¶34-35, 332 Wis. 2d 3, 796 N.W.2d 411 ("Certiorari is a
mechanism by which a court may test the validity of a decision
rendered by a municipality . . . ."). We apply the common law
certiorari standard where there is no express statutory method
of review, and our review is limited to the record compiled by
the municipality. Moreover, we may only consider:

     (1)   whether  the   municipality   kept  within   its
     jurisdiction; (2) whether it proceeded on a correct
     theory of law; (3) whether its action was arbitrary,
     oppressive, or unreasonable and represented its will
     and not its judgment; and (4) whether the evidence was
                                                     (continued)
                               24
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      ¶115 The     United     States    Supreme     Court's     Baker     opinion

provides significant guidance in describing the category of non-

justiciable questions:

      Prominent on the surface of any case held to involve a
      political question is found a textually demonstrable
      constitutional commitment of the issue to a coordinate
      political   department;  or   a   lack   of   judicially
      discoverable and manageable standards for resolving
      it; or the impossibility of deciding without an
      initial policy determination of a kind clearly for
      nonjudicial discretion; or the impossibility of a
      court's undertaking independent resolution without
      expressing lack of the respect due coordinate branches
      of government; or an unusual need for unquestioning
      adherence to a political decision already made; or the
      potentiality   of   embarrassment   from    multifarious
      pronouncements by various departments on one question.
      Baker, 369 U.S. at 217.

      ¶116 Nothing      in   this    formulation     is   capable    of       making

Plaintiffs' challenge non-justiciable.             The entire formula rests

on an a priori understanding that facts——the stuff of reality——

precede   and     are    therefore      outside     the   category       of    non-

justiciable      questions.         Thus,    for   example,     reality       (here,

whether certain property satisfies the statutory definition of

blight) has not been (nor could it be) committed to a coordinate
branch of government (unless it is entitled to its own facts).

And the statute's definition of blight is so specific there is

no lack of discoverable and manageable standards for recognizing

where it might exist.          Nor must the judiciary make any policy


      such that it might reasonably                make   the    order    or
      determination in question.

Id.


                                        25
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determinations         as        a     predicate        to     identifying            blighted

properties.       And allowing Plaintiffs to assert that there is no

blight where the City says there is expresses no disrespect for

the City, just disagreement.                   And so on through all of the Baker

factors.        Because the existence of a set of facts cannot be

contingent on a legislative body's exercise of its discretion or

judgment, the court committed an outcome-determinative error in

concluding      that   both          subjects    and    objects         fall    in    the   same

category for purposes of the justiciability analysis.

       ¶117 In a terse footnote, the court suggests the key to its

opinion is the distinction between legislative and adjudicative

facts.     Majority op., ¶39 n.20.                    It also says that we do not

understand the distinction, and that this failure accounts for

our dissent.       Id.       Although we get the difference, we do not

understand——and the court does not explain——why that means it

must   conflate     subjects           and   objects.         There       is    no    magic   to

legislative facts——they simply describe the world as perceived

by legislative bodies.                Municipalities cannot speak (or write) a
single fact into existence (or make one disappear).                                  The facts

either are, or they are not.                         And that matters because the

legislature conditioned the City's TID authority on whether the

TIDs——as    a    factual     matter——encompass               the    required         amount   of

blight.    If it did not matter——that is, if the City can create

legislative      facts      ex       nihilo,    the    truth       of   which      are   beyond

questioning——then           the       legislature        can       never        condition      a

municipality's exercise of authority on a factual predicate.                                  If
the court is right, then the predicate can never be anything but

                                                26
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a functional nullity because the municipality will always be

able to create compliance by speaking the "legislative" facts

into existence.           That, of course, is not a condition.                     It is

surplusage.          We    are   supposed       to    avoid    that.        See,    e.g.,

Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980)

("A statute should be construed so that no word or clause shall

be rendered surplusage and every word if possible should be

given effect.").

                                            *

      ¶118 The        factual     predicates          to     the     exercise      of     a

municipality's TID authority are not legislative determinations.

They are simply facts, the existence of which is as susceptible

to determination in the context of the Tax Increment Law as in

any   other    setting.          The   court     erred,       profoundly,       when     it

concluded     that     Counts    One   and      Two    are    non-justiciable.          Our

jurisprudential world will be on tilt until we abandon this

reality-warping category error.

                 C.       Dismissal of Counts Three and Four
      ¶119 The court concludes that Count Three insufficiently

states a claim because it does not allege facts plausible enough

to show TID funds were used to demolish historic buildings.                             And

it concludes that Count Four suffers the same infirmity because

Plaintiffs do not allege facts that plausibly show the grants

were really paying the developer's property taxes.                        We disagree.

                 1. Standard of Review and Applicable Law

      ¶120 Our review of the sufficiency of a complaint is a
question of law reviewed de novo.                    See Kaloti Enterprises, Inc.

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v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis. 2d 555, 699

N.W.2d 205.       Wisconsin     Stat.     §     802.02(1)(a)       provides       the

necessary requirements for a valid complaint:

      (1) Contents of pleadings. A pleading or supplemental
      pleading that sets forth a claim for relief, whether
      an original or amended claim, counterclaim, cross
      claim or 3rd-party claim, shall contain all of the
      following:

           (a) A short and plain statement of the claim,
      identifying the transaction or occurrence or series of
      transactions or occurrences out of which the claim
      arises and showing that the pleader is entitled to
      relief.

           (b) A demand       for   judgment      for   the      relief    the
      pleader seeks.
      ¶121 Wisconsin     adopted    "notice      pleading"       "so    that     legal

disputes are resolved on the merits of the case" rather than

dismissed based on a technicality.             See Hlavinka v. Blunt, Ellis

& Loewi, Inc., 174 Wis. 2d 381, 403, 497 N.W.2d 756 (Ct. App.

1993) (quoting Korkow v. Gen. Cas. Co. of Wis., 117 Wis. 2d 187,

193, 344 N.W.2d 108 (1984)).            "The 'notice' pleading rules of

the current civil procedure code are intended to facilitate the
orderly adjudication of disputes; pleading is not to become a

'game of skill in which one misstep by counsel may be decisive

of the outcome.'"        Korkow, 117 Wis. 2d at 193 (quoted source

omitted).

      ¶122 When a court is asked to determine whether a complaint

states a claim, we accept the facts pled in the complaint as

true, as well as "all reasonable inferences that can be drawn

from those facts."       Hlavinka, 174 Wis. 2d at 403.                 To be valid,
the   complaint   must   give   notice        sufficient   enough        "that    the

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defendant, and the court, can obtain a fair idea of what the

plaintiff is complaining, and can see that there is some basis

for recovery."         Id. (quoted sources and internal quotation marks

omitted).      The complaint should be liberally construed in favor

of stating a claim and only dismissed when it is clear that

there are no conditions under which Plaintiffs could prevail.

See   Hermann    v.     Town     of    Delavan,    215    Wis. 2d 370,        378,     572

N.W.2d 855 (1998).

                                  2.    Application

      ¶123 Plaintiffs' third claim seeks a declaration voiding

the     City   Council's       TID     resolution    because      TID     funds       were

unlawfully      used     to    pay     for    demolition       costs     of    historic

buildings in violation of Wis. Stat. § 66.1105(2)(f)1.a.9                              The

court      agrees       that     the     plain     language       of     Wis.        Stat.

§ 66.1105(2)(f)1.a         prohibits      using    TID    money   to    pay     for    the

demolition     of   a    historic      building.         See   majority       op.,    ¶53.

Nonetheless,     the     court    concludes       that    Count   Three       failed    to


      9
          Wisconsin Stat. § 66.1105(2)(f)1.a provides:

      "Project costs" include:

      a. Capital costs including, but not limited to, the
      actual costs of the construction of public works or
      improvements, new buildings, structures, and fixtures;
      the demolition, alteration, remodeling, repair or
      reconstruction of existing buildings, structures and
      fixtures   other   than  the   demolition  of   listed
      properties as defined in s. 44.31 (4); the acquisition
      of equipment to service the district; the removal or
      containment of, or the restoration of soil or
      groundwater affected by, environmental pollution; and
      the clearing and grading of land.


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state a claim for declaratory relief because it did not use the

right words.       According to the court, (1) the Complaint "did not

allege facts which establish that the developer in fact used the

money from the cash grant to pay for the demolition of" the

historic buildings; and (2) the Complaint did not "allege facts

which demonstrate that the developer was likely to do so"; and

(3) the Plaintiffs allege only that "'there is . . . no way to

assure' that the developer did not use the cash grants to pay

for the demolition of historic buildings."            Id., ¶55.

      ¶124 The court is mistaken because it did not account for

what everyone knows:          Money is fungible.      The Complaint alleges

that historic buildings on the National Register of Historic

Places within the TID district were purchased and demolished by

the developer——specifically identifying at least one of those

buildings by name, the Kline Department Store, and another by

address, "the historic property at 2 South Barstow Street."                     It

alleges the demolition occurred "after the project plans were

developed     and,     upon     information     and    belief,         with    the
understanding that [the developer] would be reimbursed for the

costs of development."         It further alleges:      "A substantial part

of the development costs actually incurred by the developer thus

includes the costs of demolition as well as the purchase price

of   the   Kline   Department     Store    building   and    other    buildings"

protected by statute as historic places.               Paragraph 46 of the

Complaint alleges the City will pay the developer $10,400,000 in

the form of cash grants for project costs, without prohibiting
the developer from using that money to purchase or demolish the

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historic     properties.         Paragraph        94     alleges      "two     lump-sum

'contributions' of $2.95 million to the developer" which "may be

used by the developer for any project related purpose, including

reimbursing the developer for its already-incurred costs.                           These

costs include acquisition and demolition" without prohibiting

the   developer       from     using    this     money      "for     the     costs     of

demolishing"        historic    properties.            Finally,       the     Complaint

states:    "Lump sum reimbursement for already incurred costs can

properly be viewed as including any of those costs, including

the   costs    of     demolishing        historic        structures        within     the

Confluence Commercial Historic District."

      ¶125 Taking      these     alleged       facts   as    true,     as     we    must,

together with any reasonable inference derived therefrom, see

Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356

Wis. 2d 665, 849 N.W.2d 693, Plaintiffs' claim survives a motion

to dismiss.     The statute prohibits using TID funds to demolish

historic places.        The Complaint alleges the developer bought and

demolished historic places pursuant to a development agreement
under which the City pays millions of dollars in cash grants to

the developer for any project-related purpose.                       In essence, the

Complaint asserts the City is unlawfully transferring taxpayer

money to the developer in part to cover the developer's costs

for   demolishing      historic        buildings;      if    proven,        this    would

constitute     an     illegal    expenditure        of      public    funds.          The

Complaint need not track the currency's serial numbers from the

TID funds to the wrecking company's bank account.



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      ¶126 The court heightens pleading requirements beyond what

the   law    supports.            It   dismisses      this    claim       even    though    the

Complaint conveys fair notice of Plaintiffs' grievance and even

though the Complaint's factual allegations and reasonably drawn

inferences,        if       true,      provide    a   basis        for     recovery.            If

Plaintiffs'        claim      proceeded,     discovery        would       either    prove       or

disprove      Plaintiffs'           allegation     that      the   developer        used    TIF

funds to cover demolition costs.                   If discovery shows Plaintiffs'

allegations        were      correct,     Plaintiffs       would     be     entitled       to    a

declaration that the City violated the statute.                                  The court's

perplexing dismissal of this claim achieves what notice pleading

is supposed to prevent——dismissal on a technicality.                               The court

selectively ignores pivotal words in the Complaint and spurns

what is left as insufficient.                    It suggests that had Plaintiffs

simply      chosen      a   few     different     words,      this       claim    would    have

survived      dismissal.            The   court's     analysis       is     unsound.        The

Complaint is sufficient to withstand a motion to dismiss and

this claim should have been allowed to proceed to a decision on
the merits rather than dismissed at the pleading stage on a

specious technicality.

      ¶127 Plaintiffs' Fourth Count alleges that the cash grants,

through which the City pays the developer millions of dollars,

violate      the   Uniformity          Clause    of    the    Wisconsin          Constitution

because the cash grants effectively lower the developer-owners'

property taxes.             The court's opinion again concludes Plaintiffs'

Complaint is factually insufficient.                   We disagree.



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       ¶128 Plaintiffs' Complaint alleges:                 (1) the cash grants

reimburse the developer-owner "for all or a part of the taxes

paid    on   its   property";      (2)    "the    project      plans      provide       for

millions of dollars of incremental TID taxes to be paid directly

to the owner of the property"; (3) these payments "function[] as

a tax rebate or tax credit"; (4) as a result, the developer-

owner is "being taxed at a more favorable rate than an owner of

identically-assessed property elsewhere in Eau Claire"; and (5)

this arrangement violates the Uniformity Clause.

       ¶129 As noted, in reviewing a sufficiency of the complaint

challenge, we accept all of its asserted facts and reasonably

drawn    inferences    as    true.        We    analyze    any    legal        assertions

independently.        Plaintiffs'        Complaint     gives      fair       notice    that

Plaintiffs seek a declaration regarding the constitutionality of

the cash grant part of the TIF statute.                    The Complaint alleges

that the cash grants operate as a tax rebate that in effect

lowers the developer's taxes, making the tax rate paid by the

developer more favorable than the rate paid by other taxpayers.
The    facts   alleged      are   sufficient      to   withstand         a     motion    to

dismiss.        The   court       errs    by     concluding       otherwise,          which

prevented the court from taking the next step of reviewing the

legal basis for the claim.               If the facts alleged are true, and

if the legal premises are correct, Plaintiffs could receive the

relief they seek:           a declaration that the cash grants violate

the     Uniformity    Clause.            Accordingly,      the         court    errs     in

prematurely disposing of this claim on the narrow basis that the
Complaint      insufficiently      pleads       adequate    facts        to    support    a

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Uniformity Clause claim.               Although the claim suffers no fact-

related pleading inadequacy, it nonetheless fails to state a

claim for the reasons we explain below.

               D.    Constitutionality of TIF Cash Grants

     ¶130 The       court's        rejection    of    Plaintiffs'      constitutional

challenge to the cash grants based on purportedly insufficient

factual allegations in the Complaint is particularly puzzling

because resolving the issue of whether the cash grants violate

the Uniformity Clause does not depend on factual findings or

require discovery.10           Rather, whether tax policy implicates the

Uniformity Clause presents a legal question, which is ripe for

resolution     by    this      court.          A     statute's     constitutionality

presents an issue of law, which we review de novo.                             State v.

Pittman, 174 Wis. 2d 255, 276, 496 N.W.2d 74 (1993).

     ¶131 Plaintiffs make an "as-applied" challenge.11                         Although

statutes     are     generally        presumed        constitutional,       when     the

challenge is not to the statute itself, but to its application,

no presumption exists.             Soc'y Ins. v. LIRC, 2010 WI 68, ¶27, 326
Wis. 2d 444,       786    N.W.2d 385      ("While      we   presume    a   statute    is

constitutional,          we   do    not   presume      that      the   State    applies




     10
       We address only Plaintiffs' constitutional challenge
under   the   Uniformity   Clause.     We   cannot   decide its
constitutional challenge based on the public purpose doctrine
because that analysis depends upon the blight findings.
     11
       We acknowledge the parties' dispute as to whether the
challenge is a facial or an as-applied challenge.   Like the
majority, we analyze it as an as-applied challenge.


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statutes in a constitutional manner.")12                       Plaintiffs argue that

cash grants to a non-tax exempt developer who also owns the

property     violate       the   Uniformity         Clause.      They       contend    such

grants operate as a tax rebate, which effectively lowers the

property taxes the developer pays to the City.                                Accordingly,

Plaintiffs do not challenge all cash grants under the TIF law,

but   only   those     made      to    property       owners    who     are    subject     to

taxation.

      ¶132 The Uniformity Clause of the Wisconsin Constitution

guarantees "[t]he rule of taxation shall be                           uniform."         Wis.

Const.     art.    VIII,    § 1.        Generally       speaking,       the     uniformity

clause applies to property taxes, which are "direct taxes on

real estate."       Columbia Cty. v. Wis. Retirement Fund, 17 Wis. 2d

310, 325, 116 N.W.2d 142 (1962).                    A Uniformity Clause analysis

primarily focuses on "inequality in the assessing or collecting

of a tax."        State ex rel. Van Dyke v. Cary, 181 Wis. 564, 572,

191   N.W.   546    (1923).           When    taxes    are    collected       or    assessed

unequally, the Uniformity Clause is implicated.                          In Gottlieb v.
Milwaukee, 33 Wis. 2d 408, 425-32, 147 N.W.2d 633 (1967), this

court held a tax law that "partially exempt[s] particular tax

property"     violated       the      Uniformity      Clause.         The     tax    law    in

Gottlieb     gave    decades-long            tax   exemptions    to     developers         who

      12
       A facial challenge to a statute alleges that the statute
is unconstitutional on its face——that it is unconstitutional in
every circumstance.   State v. Smith, 2010 WI 16, ¶10 n.9, 323
Wis. 2d 377, 780 N.W.2d 90.        In contrast, an as-applied
challenge asserts that a statute is unconstitutional as it
relates to the facts of a particular case or a particular party.
Id.


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agreed       to    construct     or     improve          substandard      properties         in

exchange for partial freezing of tax assessments.                            Id.        Such an

arrangement lowered the tax rate for the developers and resulted

in other taxpayers paying a higher and disproportionate share of

property taxes, in clear violation of uniformity.                         Id. at 429.

       ¶133 The statute Plaintiffs challenge here does not involve

a tax freeze or a tax exemption.                         The developer-owner in the

matter before us is assessed uniformly with other taxpayers and

fully       pays   property     taxes    on    that       assessment.         Plaintiffs'

constitutional challenge targets municipal disbursement of tax

revenues      after    collection       rather      than     the    collection          itself.

Disbursement of funds generally survives challenges under the

Uniformity Clause.        In an early dispute over a surtax imposed to

fund    a    teachers'    retirement          fund,      this    court    identified         "a

substantial distinction between an inequality in the assessing

or collecting of a tax and inequality in the disbursing of its

proceeds among those who contributed," concluding that "while

the former may invalidate the tax, the latter does not . . . ."
State ex rel. Van Dyke, 181 Wis. at 572.                             "TIF departs from

uniformity only with respect to spending," which is significant

because state courts hold that "state constitutional uniformity

requirements appl[y] only to tax assessment and tax rates, not

spending."          Richard     Briffault,         The    Most     Popular    Tool:         Tax

Incremental         Financing     and    the        Political       Economy        of     Local

Government, 77 U. Chi. L. Rev. 65, 75 & n.54 (2003) (citing

state       court     opinions        from     Indiana,          Illinois,         Colorado,



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Tennessee, Utah, and Iowa upholding TIF under their respective

uniformity clauses).

       ¶134 The   constitutional            requirement          of    uniform           taxation

does    extend,   in    some    circumstances,             to    the        manner       of   fund

disbursement.         See    State    ex     rel.    La    Follette          v.    Torphy,      85

Wis. 2d 94, 107, 108, 270 N.W.2d 187 (1978).                            While uniformity

does not extend to disbursement of tax revenues when paid to

counties and municipalities for use on government and public

improvements,     id. at 107, when a tax statute authorizes payment

to an individual taxpayer, the Uniformity Clause applies if the

effect of the statute imposes an unequal tax burden.                                      Id. at

108-110.       "The uniformity clause is intended to protect the

citizen against unequal and unjust taxation."                           Id. at 198.            In

Torphy,    this   court      held     the    tax    law     giving          tax    credits     to

residential property owners who elected to make "building and

garage    improvements        which    result       in     increased          property        tax

assessments" had the effect of imposing an unequal tax burden on

homeowners     with    the     same    assessed       valuations             and     therefore
violated the Uniformity Clause.                   Id. at 98, 111.

       ¶135 Plaintiffs        here     allege       that        the    TIF        cash     grants

violate the Uniformity Clause because, like the tax credits in

Torphy, they have the effect of lowering the developer's tax

rate,     rendering     the     rate        unequal       among       taxpayers.              The

dispositive question then is whether the cash grants act as a

tax rebate, credit, or exemption that has the effect of imposing

an   unequal   tax     burden   upon        other    Eau    Claire          taxpayers.         We



                                             37
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conclude that the TIF cash grants do not have that effect and

therefore do not violate the Uniformity Clause.

    ¶136 This     court   has   already   rejected   a     facial   and   as-

applied constitutional challenge to the TIF statute in Sigma

Tau, 93 Wis. 2d at 412.     Sigma Tau determined:

    With respect to the question of uniformity of taxation
    among individual taxpayers, the Tax Increment Law is
    clearly distinguishable, both in form and effect, from
    the tax provisions struck down by the court in
    Gottlieb and in Torphy.     In both of those cases the
    court based its conclusion that the provisions were
    unconstitutional upon its finding that taxpayers
    owning equally valuable property were required to pay
    disproportionate amounts of taxes.

    Under tax increment financing, however, there is no
    such disproportionate impact upon taxpayers within the
    same territorial boundaries of the unit imposing the
    tax.   All taxpayers . . . continue to be taxed at a
    uniform rate based upon valuations uniformly arrived
    at.    No taxpayer or group of taxpayers is being
    singled out for preferential treatment either in the
    form of an exemption from taxation or a tax credit.
    Thus, we conclude, taxation under tax incremental
    financing is uniform.
Id. at 412.

    ¶137 Plaintiffs contend the cash grant provision of the TIF

statute did not exist at the time Sigma Tau declared the TIF law

constitutional.     The City disputes this, arguing cash grants

have always been a part of the TIF framework.            The State, in an

amicus brief, agrees:     "'Cash grants' to private developers have

always been part of the definition of 'eligible project costs'

under Wisconsin's TIF law."      It is not necessary to resolve this

dispute in reaching our conclusion that the TIF cash grants do
not violate the Uniformity Clause.


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     ¶138 The purpose of the TIF law is "to provide a mechanism

for cities to finance projects commenced" under redevelopment

statutes or to combat blighted areas.                       Id. at 403.           Wisconsin

Stat. § 66.1105(2)(f)2.d allows the City to give cash grants to

developers    if   they     "signed    a    development           agreement        with    the

city."13     The   cash     grants    are       not   a     tax   rebate,        credit,    or

exemption.     They are payments pursuant to an agreement to engage

in redevelopment projects.            The cash grants are not linked to

future     property   tax    payments,          do    not    give      the      developer   a

property tax break, and do not operate as a tax refund.                                    The

grants do not have the effect of creating an unequal tax burden

on   similarly     situated     taxpayers.                They    do      not    lower     the

developer's tax burden or require other taxpayers to pay more

than their fair share.          Both the developer and other taxpayers

are taxed at the same rate based on the equalized value of their

property.     Thus, the cash grants do not apportion the tax burden

unevenly.     The City effectively pays developers to undertake a

project it would otherwise plan, manage, and pay for itself, if
it had the ability to do so.                    The City pays for development

services using revenues the project itself will generate.                                  See

Monroe WaterWorks Co. v. City of Monroe, 110 Wis. 11, 12-13, 85

N.W. 685 (1901) (concluding City's contract agreeing to pay for

     13
       Wisconsin    Stat.   §    1105(2)(f)2.d    provides   as
material: " . . . none of the following may be included as
project costs for any tax incremental district . . . [c]ash
grants made by the city to owners, lessees, or developers of
land that is located within the tax incremental district unless
the grant recipient has signed a development agreement with the
city . . . ."


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water services is not unlawful grant of immunity from taxes when

"the sum so stipulated to be paid is a fair and just allowance

to   compensate    for   the    actual     value    of     the     services   to   be

rendered, and that the stipulation is bona fide, and not in the

nature of an evasion of the law against exemption from taxes.").

The developer uses the grants to defray the costs of economic

development, not to lower or offset property tax payments.

       ¶139 The TIF cash grants do not alter the uniformity of tax

payments among taxpayers or impose an unequal tax burden.                       They

do not impose on other taxpayers a disproportionate amount of

taxes like the tax laws found unconstitutional in Gottlieb and

Torphy.     Accordingly, we conclude the TIF cash grants do not

violate the Uniformity Clause.

                                III. CONCLUSION

       ¶140 Plaintiffs have standing in this matter and the law

permits them to seek both declaratory judgment and certiorari

review.      Plaintiffs'       Complaint       alleges     sufficient     facts    to

withstand a motion to dismiss on each of its claims. The TIF
cash grants do not have the effect of imposing an unequal tax

burden; therefore, the TIF statute, as applied to developer-

owners receiving TIF grants, comports with the Uniformity Clause

of the Wisconsin Constitution, requiring dismissal of Count 4.

       ¶141 The court says Plaintiffs' claims must be dismissed

because "a court cannot issue a declaration regarding the wisdom

of a legislative determination."                Majority op., ¶40.            But it

says   so   only   because     it   believes       facts    are     contingent     on
municipal    policy      choices,    a        paradigm     that     is   untenable,

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unworkable,   and     unintelligible.          Consequently,          the   court

abdicated the judicial duty to decide whether a municipal body

properly   applied    the    law.         Because     the     court     jettisons

Plaintiffs'   cause   of    action   without        basis,    we    respectfully

dissent.




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