                                                                      2018 WI 4

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:              2016AP21
COMPLETE TITLE:        Metropolitan Associates,
                                 Plaintiff-Appellant-Petitioner,
                            v.
                       City of Milwaukee,
                                 Defendant-Respondent.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 373 Wis. 2d 310, 895 N.W.2d 104
                                      (2017 – Unpublished)

OPINION FILED:         January 10, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 15, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Jeffrey A. Conen and Dennis P. Moroney

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


ATTORNEYS:


       For the plaintiff-appellant-petitioner, there were briefs
filed by Alan Marcuvitz, Nicholas J. Boerke, and Von Briesen &
Roper, S.C., Milwaukee.             There was an oral argument by Nicholas
J. Boerke and Alan Marcuvitz.


       For the defendant-respondent, there was a brief filed by
Grant        F.   Langley,   city    attorney,   and   Allison   N.   Flanagan,
assistant city attorney.            There was an oral argument by Allison
N. Flanagan.
    An amicus curiae brief was filed on behalf of League of
Wisconsin   Municipalities   by   Claire   Silverman   and   League   of
Wisconsin Municipalities, Madison.




                                   2
                                                                         2018 WI 4
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.   2016AP21
(L.C. No.   2009CV9871)

STATE OF WISCONSIN                           :            IN SUPREME COURT

Metropolitan Associates,

            Plaintiff-Appellant-Petitioner,
                                                                    FILED
      v.
                                                               JAN 10, 2018
City of Milwaukee,
                                                                  Diane M. Fremgen
            Defendant-Respondent.                              Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.               Affirmed.



      ¶1    ANN WALSH BRADLEY, J.          The petitioner, Metropolitan
Associates (Metropolitan), seeks review of an unpublished court

of appeals decision affirming the circuit court's determination,

which in turn affirmed the City of Milwaukee's (the City) tax

assessment    of   property   owned   by   Metropolitan.1           Metropolitan

contends that the court of appeals erred in concluding that the

      1
       Metro. Assocs. v. City of Milwaukee, No. 2016AP21,
unpublished slip op., (Wis. Ct. App. Dec. 8, 2016) (affirming
order of circuit court for Milwaukee County, Jeffrey A. Conen
and Dennis P. Moroney, JJ.).
                                                                               No.     2016AP21



City       complied     with   Wis.      Stat.       § 70.32(1)       (2013-14)2       in    its

assessment of Metropolitan's property.

       ¶2       Specifically,       Metropolitan            argues      that     the        City

contravened Wis. Stat. § 70.32(1) because it failed to utilize

the     "best        information"     available           when   it     relied       on     mass

appraisal, and not single-property appraisal, in determining the

value      of   Metropolitan's        property.            Metropolitan        additionally

asks this court to reject the findings of the circuit court

regarding the reliability of the competing assessment evidence

and the weight and credibility the circuit court attributed to

that evidence.           Ultimately, it argues that the application of

the presumption of correctness to the City's assessment based on

a mass appraisal constitutes an error of law.

       ¶3       We      conclude      that          the     City's       assessment           of

Metropolitan's          property    complied         with    Wis.     Stat.     § 70.32(1).

The City permissibly utilized mass appraisal for its initial

assessment        and    appropriately       defended        its    initial      assessment

with       single       property      appraisals           demonstrating         that        the
assessment was not excessive.

       ¶4       Next, we decline Metropolitan's request to upset the

circuit court's findings of fact.                    As the court of appeals aptly

stated, "[i]n asking us to reject the court's judgment as to the

weight      and      credibility    of    the       competing    assessment          evidence,

Metropolitan effectively asks us to substitute our judgment for

       2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                                2
                                                                        No.   2016AP21



the circuit court's regarding the credibility of witnesses and

the relative weights to assign to various pieces of the evidence

at trial, neither of which we can do."3

       ¶5      We conclude that the circuit court's findings of fact

regarding the reliability of the respective appraisals are not

clearly erroneous.            Because the circuit court's findings are

sufficient to support its determination regardless of whether

the presumption of correctness was employed, we need not address

whether       the    presumption     of       correctness       attached      to    the

assessment based on the initial mass appraisal.

       ¶6      Accordingly, we affirm the decision of the court of

appeals.

                                          I

       ¶7      The facts presented arise from the City's assessments

of seven properties owned by Metropolitan for the tax years

2008-2013.          Metropolitan   objected        that   the    assessments       were

excessive, initially appealing to the City's Board of Assessors

and Board of Review.          The Board of Assessors and Board of Review
both       upheld   the    assessments.        Metropolitan      then    brought    an

excessive assessment action in the circuit court.

       ¶8      Both parties agreed to present evidence on only one of

the seven Metropolitan properties, the Southgate Apartments, and

to focus exclusively on the tax years 2008-2011.                        They further

agreed       that    the     resolution       of   the    Southgate        Apartments

       3
       Metro. Assocs. v. City of Milwaukee, No. 2016AP21,
unpublished slip op., ¶35 (Wis. Ct. App. Dec. 8, 2016).


                                          3
                                                                                        No.     2016AP21



assessment        would       control         the       resolution            of    Metropolitan's

challenges to the other six properties' assessments.

       ¶9      The Southgate Apartments were initially assessed by

the City using a "mass appraisal" technique.                                  At trial, the City

assessor, Peter Weissenfluh, testified that "[m]ass appraisal is

a     technique        used    by    probably            the        majority       of     assessment

jurisdictions          in     the   nation.             It     is    a       process     whereby      an

assessor       values       entire       groups         of   property          using      systematic

techniques and allowing for statistical testing."

       ¶10     Mass appraisal stands in contrast to single property

appraisal.        Weissenfluh testified that single property appraisal

"is looking at the individual properties and determining the

full fair market value of that individual property with more

detail and more . . . individual analysis . . . ."

       ¶11     Single       property       appraisals               are      conducted        by    what

Weissenfluh       described         as    a    "three-tier            valuation          technique."

The    three    "tiers"        of    analysis           provide          a    hierarchy        of   what

constitutes the best evidence of fair market value.                                      Pursuant to
a "tier 1" analysis, the best evidence of value is a recent sale

of the subject property.

       ¶12     Weissenfluh explained that there were no recent sales

of the Southgate Apartments.                        Because no tier 1 evidence was

available, he then moved to a "tier 2" analysis, also known as a

"sales comparison" approach.

       ¶13     A tier 2 analysis examines any sales of reasonably

comparable       property.           Under          this       approach,           as    Weissenfluh
testified,        an     assessor         "surveys           the      market        to        determine
                                                    4
                                                                              No.      2016AP21



comparable sales.          In that process many sources are used."                           The

assessor   then     selects       comparable         properties        relying       on     such

factors as location and use, adjusting the sale price based on

particular physical characteristics of the properties.

    ¶14    Weissenfluh           testified       that   he       completed      a     tier     2

analysis   to     assess     the    Southgate         Apartments.           Through         this

analysis, he ultimately arrived at a value                             higher    than that

produced with the initial mass appraisal.

    ¶15    If      there    is    no   information           from    which      to    conduct

either a tier 1 or tier 2 analysis, the assessor moves to a

"tier 3" analysis.          A tier 3 analysis takes into account other

characteristics of the property, such as the amount of income it

generates and the cost to maintain it.

    ¶16    Weissenfluh        conducted          a   tier    3   income      analysis        "to

confirm that the sales comparison approach made sense."                                       He

further testified that his income analysis validated the results

of the sales comparison analysis, confirming that the initial

mass appraisal was not excessive.
    ¶17    Metropolitan responded by presenting the testimony of

its appraiser, Lawrence Nicholson.                   He also conducted both tier

2 and tier 3 analyses of the Southgate Apartments.                                  Nicholson

concluded,       contrary    to    Weissenfluh's            determination,           that    the

Southgate Apartments had a value lower than that reflected in

the City's initial mass appraisal.

    ¶18    After      a     two-day     bench        trial,         the    circuit        court

rendered     a    written        decision        affirming       the      City's      initial
assessments.       The circuit court determined first that the City
                                             5
                                                                             No.   2016AP21



complied with Wis. Stat. § 70.32(1) and the Wisconsin Property

Assessment Manual (the Manual) by conducting a mass appraisal of

the Southgate Apartments.

      ¶19      Second, the circuit court found that the City's tier 2

and   3   valuations         were    "more     reliable"      than     Metropolitan's.

Specifically, the circuit court determined that "[t]he City's

sales comparison approach is more reliable than Metropolitan's

approach" because Metropolitan made "adjustments based solely on

the     properties'      net        operating      income[]."          In     so   doing,

Metropolitan       "conflate[d]         the       sales    comparison        and    income

approaches."

      ¶20      Further, the circuit court found that "[t]he City's

income approach was more reliable than Metropolitan's approach."

The City's income approach correctly adjusted for Metropolitan's

expense     ratio,     which    was     "markedly         higher    than     the   expense

ratios for similar properties in the market."                          As the circuit

court highlighted, "[t]he market trend is to maintain a lower

expense     ratio,     and    the    City's       income    approach       accounted   for
this."

      ¶21      On appeal, Metropolitan argued that the circuit court

erred     in   concluding       that    Metropolitan         failed     to    rebut    the

presumption       of    correctness       to       which     City    assessments       are

entitled.       Specifically, it asserted that (1) the City's initial

assessments were invalid as a matter of law because the City

assessor used the mass appraisal method and not the three-tier

technique; (2) the City assessor's tier 2 and 3 assessments were
conducted in a manner contrary to Wisconsin assessment law in
                                              6
                                                                                  No.     2016AP21



that       the       City      assessor          ignored       the    individual        economic

characteristics of the Southgate Apartments property; and (3)

the    circuit         court     erred      in    its       determination      that     the   City

assessor's            methods       were         more        reliable      than       those     of

Metropolitan's assessor.

       ¶22       The        court      of        appeals        rejected       Metropolitan's

arguments.            It concluded that the Wisconsin Property Assessment

Manual explicitly encourages assessors to use mass appraisal.

Metro. Assocs. v. City of Milwaukee, No. 2016AP21, unpublished

slip op., ¶20 (Wis. Ct. App. Dec. 8, 2016).                             Next, it determined

that the City assessor's sales comparison and income analyses

were conducted in accordance with Wisconsin law.                                      Id.,    ¶33.

Finally,         it     opined      that     the        circuit      court's    determination

regarding        the     reliability         of     each      assessor's       methods    was   a

credibility determination that the court of appeals would not

upset on appeal.             Id., ¶35.

                                                   II

       ¶23       In this case we are asked to review a tax assessment
made       in   an     action    for     refund        of    excess   property     taxes      paid

pursuant to Wis. Stat. § 74.37(3)(d).4                            An action under § 74.37


       4
           Wis. Stat. § 74.37(3)(d) provides:

       If the taxation district or county disallows the
       claim, the claimant may commence an action in circuit
       court to recover the amount of the claim not allowed.
       The action shall be commenced within 90 days after the
       claimant receives notice by registered or certified
       mail that the claim is disallowed.


                                                   7
                                                                          No.     2016AP21



is a new trial, not a certiorari action.                        Trailwood Ventures,

LLC     v.    Vill.    of    Kronenwetter,         2009    WI    App    18,     ¶6,   315

Wis. 2d 791, 762 N.W.2d 841.              Accordingly, we review the circuit

court's determination, not that of the assessor or Board of

Review.       Id.

       ¶24     In review, we interpret and apply Wis. Stat. § 70.32

to     determine      whether     the    appraisal        at    issue    followed     the

statutory directives.               Regency W. Apartments LLC v. City of

Racine,       2016    WI    99,   ¶22,   372      Wis. 2d 282,      888    N.W.2d 611.

Statutory interpretation and application present questions of

law that this court reviews independently of the determinations

rendered by the circuit court and court of appeals.                       Id.

       ¶25     We do, however, defer to a circuit court's findings of

fact.        Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46,

¶11,    290    Wis.    2d    264,    271,    714     N.W.2d     530,    534     (citation

omitted).       Factual findings made by the circuit court will not

be disturbed unless they are clearly erroneous.                         Emp'rs Ins. of

Wausau v. Jackson, 190 Wis. 2d 597, 613, 527 N.W.2d 681 (1995).
It is within the province of the factfinder to determine the

weight and credibility of expert witnesses' opinions.                           Bonstores

Realty One, LLC v. City of Wauwatosa, 2013 WI App 131, ¶6, 351

Wis. 2d 439, 839 N.W.2d 893 (citation omitted).

                                            III

       ¶26     Metropolitan argues first that the City's assessments

do not comply with Wis. Stat.                     § 70.32(1), which       provides in

relevant part:


                                             8
                                                                              No.    2016AP21


      Real property shall be valued by the assessor in the
      manner specified in the Wisconsin property assessment
      manual provided under s. 73.03(2a) from actual view or
      from the best information that the assessor can
      practicably obtain . . .
Specifically, Metropolitan contends that the City did not use

the     "best     information"       available         when     it     relied       on   mass

appraisal rather than single property appraisal.                              The argument

centers on the meaning of "best information that the assessor

can practicably obtain."

      ¶27      In its initial briefing,5 Metropolitan asserts that the
"best information" on which to base an assessment is not that

which     informs    a     mass    appraisal,         but    instead     is    information

underlying a single property appraisal pursuant to the three

tiers     of    analysis    under    State       ex   rel.    Markarian       v.    City   of

Cudahy, 45 Wis. 2d 683, 173 N.W.2d 627 (1970).

      ¶28      Wisconsin     Stat.    § 70.32(1)            explicitly    directs        that

property be assessed "in the manner specified in the Wisconsin

property        assessment        manual."            The    Manual      provides        that

"[c]ommercial property can be valued by either single property

or mass appraisal techniques."                   1 Wisconsin Property Assessment

Manual (2009) at 9-5.6
      5
       Although in its initial brief Metropolitan appeared to
cast aspersions on mass appraisal as a whole, it conceded in its
reply brief and at oral argument that it is not asking the court
to "completely discard mass appraisal techniques." Metropolitan
thus recognized that the information underlying a mass appraisal
may constitute the best information available at the initial
assessment stage. See Pet'r Reply Brief at 2.
      6
       All references to the Wisconsin Property Assessment Manual
are to the 2009 version unless otherwise noted.


                                             9
                                                                          No.    2016AP21



       ¶29      "Mass appraisal is the systematic appraisal of groups

of properties, as of a given date, using standardized procedures

and    statistical        testing."      1     Wisconsin       Property     Assessment

Manual at 7-32.            The Manual provides for assessors utilizing

mass appraisal in initial assessments:                    "Mass appraisal is the

underlying principle that Wisconsin assessors should be using to

value properties in their respective jurisdictions."                      Id.

       ¶30      Mass appraisal stands in contrast to single property

appraisal,        which    is   the    valuation     of    a     single    particular

property as of a given date.              Id.     A single property appraisal

focuses on the unique characteristics of the subject property

within the strictures of the methodology set forth in Markarian,

45 Wis. 2d 683.

       ¶31      In Markarian, we addressed a landowner's challenge to

the City of Cudahy's assessment of his property.                       45 Wis. 2d at

684.       We    interpreted    Wis.    Stat.    § 70.32(1)7      to   set      forth   a

hierarchical         valuation         methodology         for      single-property

appraisal.        Id. at 686.         The text of the statute lists three
sources of information in a specific order, with the court in

       7
           Wis. Stat. § 70.32(1), as relevant here, provides:

       In determining the value, the assessor shall consider
       recent arm's-length sales of the property to be
       assessed if according to professionally acceptable
       appraisal practices those sales conform to recent
       arm's-length sales of reasonably comparable property;
       recent arm's-length sales of reasonably comparable
       property;   and   all  factors   that,    according to
       professionally acceptable appraisal practices, affect
       the value of the property to be assessed.


                                          10
                                                                        No.   2016AP21



Markarian clarifying this order as indicative of the quality of

the information each source provides.                 Id.    This methodology has

been further described in the courts as providing for three

"tiers" of analysis.        See, e.g., Allright Props., Inc. v. City

of Milwaukee, 2009 WI App 46,                 ¶¶20-30, 317 Wis. 2d 228, 767

N.W.2d 567.

    ¶32     The best information of a property's fair market value

is an arm's-length sale of the subject property.                       Markarian, 45

Wis. 2d at 686; Regency W., 372 Wis. 2d 282, ¶27.                        Examination

of a recent arm's-length sale is known as a "tier 1" analysis.

Allright Props., 317 Wis. 2d 228, ¶21.

    ¶33     If there is no recent sale of the subject property,

the appraiser moves to tier 2, examining recent, arm's-length

sales of reasonably comparable properties (the "sales comparison

approach").     Markarian, 45 Wis. 2d at 686; Allright Props., 317

Wis. 2d 228, ¶22.

    ¶34     When   both    tier    1   and     tier    2    are   unavailable,     an

assessor    then   moves   to     tier   3.       See       Allright    Props.,   317
Wis. 2d 228, ¶29.     Under tier 3, an assessor "may consider 'all

the factors collectively which have a bearing on value of the

property in order to determine its fair market value.'"                         Adams

Outdoor Advert., Ltd., v. City of Madison, 2006 WI 104, ¶35, 294

Wis. 2d 441, 717 N.W.2d 803 (quoting                  Markarian, 45 Wis. 2d at

686).      These factors include "cost, depreciation, replacement

value, income, industrial conditions, location and occupancy,

sales of like property, book value, amount of insurance carried,
value asserted in a prospectus and appraisals produced by the
                                         11
                                                                         No.        2016AP21



owner."      State ex rel. Mitchell Aero, Inc. v. Bd. of Review of

City of Milwaukee, 74 Wis. 2d 268, 278, 246 N.W.2d 521 (1976)

(citations omitted).           Both the income approach, which seeks to

capture the amount of income the property will generate over its

useful life, and the cost approach, which seeks to measure the

cost to replace the property, fit under the umbrella of tier 3

analysis.     Adams Outdoor Advert., 294 Wis. 2d 441, ¶35.

       ¶35   Metropolitan's         argument    that      the   "best    information"

must necessarily be the information underlying a single property

appraisal     and   not    a   mass    appraisal       is   unpersuasive        for     two

reasons.       First,      property     must    be    assessed     "in    the       manner

specified in the Wisconsin property assessment manual."                                Wis.

Stat.     § 70.32(1).          It     allows    assessors        to     conduct        mass

appraisal.      1   Wisconsin        Property    Assessment       Manual       at    7-32.

Second, Metropolitan's argument does not give full effect to the

word "practicably" in § 70.32(1).

       ¶36   The Manual outlines the division of labor between mass

appraisal and single property appraisal, demonstrating when the
use of each method is appropriate:

       The assessor needs skills in both mass appraisal and
       single property appraisal.   Mass appraisal skills for
       producing initial values, whether during a reappraisal
       year or not, and single property appraisal skills to
       defend specific property values or to value special-
       purpose properties that do not lend themselves to mass
       appraisal techniques.
1 Wisconsin Property Assessment Manual at 7-32.

       ¶37   Metropolitan acknowledged in its reply brief and at
oral    argument    that    mass     appraisal       is   appropriate     in    certain


                                          12
                                                              No.     2016AP21



circumstances.      Namely,   Metropolitan      recognized   that     at   the

initial assessment stage, mass appraisal may comprise the best

information for all properties being assessed en masse.

    ¶38    The Manual makes clear that mass appraisal is accepted

at the initial assessment stage.          It likewise sets forth when a

single   property   appraisal   is    warranted.       A   single-property

appraisal is necessary (1) after the initial mass appraisal has

been challenged by the taxpayer or (2) if the property being

valued is a "special-purpose" property that does not lend itself

well to mass appraisal.8        See 1 Wisconsin Property Assessment

Manual at 7-32.     The express language of the Manual indicates

that mass appraisal is a proper method of valuation in all other

circumstances.

    ¶39    Requiring a single property appraisal after a taxpayer

challenges an assessment does not mean that the value of the

property must be set in accordance with the single property

appraisal.    Indeed,    this   could     not   be   the   case     when   the

subsequent single property appraisal is higher than the initial
mass appraisal.     In Trailwood Ventures, the court of appeals

determined that Wis. Stat. §§ 74.37 and 74.399 do not permit the
    8
       There has been no argument advanced here that the
Southgate   Apartments   are    a   "special-purpose" property.
Accordingly, we will not address the second exception to the
general rule in favor of mass appraisal.
    9
       Wisconsin Stat. § 74.37 sets forth rules and procedures
for excessive assessment actions. Wis. Stat. § 74.39 permits a
court to order reassessment of a property if it is deemed
necessary.   Trailwood Ventures, LLC v. Vill. of Kronenwetter,
2009 WI App 18, ¶8, 315 Wis. 2d 791, 762 N.W.2d 841.


                                     13
                                                                   No.     2016AP21



court to impose a greater tax burden than the one the taxpayer

challenges.     315 Wis. 2d 791, ¶10.

      ¶40     The question on appeal in a Wis. Stat. § 74.37 action

is not whether the initial assessment was incorrect, but whether

it was excessive.          Accordingly, Weissenfluh testified at trial

as follows:

      Q:   And you're not asking that the assessment be
      changed to the sales comparison approach value,
      correct?

      A:   No.    The assessment cannot be changed at this
      level.   All I'm showing is that my work supports the
      original assessment and I conclude, therefore, that
      the assessment as made was not excessive.
The   value    reflected    in   the   initial   mass    appraisal       can   thus

constitute the value of the property for tax assessment purposes

as long as it is not excessive.

      ¶41     Further, disallowing mass appraisal as the basis for

the City's valuation in this case would not give full effect to

the   word    "practicably"      in   Wis.   Stat.   § 70.32(1).         Wisconsin

Stat. § 70.32(1) dictates that an assessment must be based on

"the best information that the assessor can practicably obtain"

(emphasis added).

      ¶42     "[S]tatutes should be so construed that no word or

clause shall be rendered surplusage."                Milwaukee Cty. v. Dep't

of Indus., Labor & Human Relations Comm'n, 80 Wis. 2d 445, 452-

53, 259 N.W.2d 118 (1977) (quoting Cook v. Indus. Comm'n, 31

Wis. 2d 232, 240, 142 N.W.2d 827 (1966)).                A blanket disavowal

of    mass     appraisal     would     render    the     word   "practicably"



                                        14
                                                                             No.    2016AP21



superfluous.        It would not be practicable to require a single

property appraisal of every parcel in the state.

       ¶43   Completing annual assessments in a major metropolitan

area    would    simply     not   be    feasible      without     the    use       of   mass

appraisal.       As Weissenfluh testified at trial, "[i]n Milwaukee

we have 150,000 properties.                 Without mass appraisal it's a job

that    simply      could   not    be       done [] especially          on    an    annual

basis."10

       ¶44   Mass     appraisal        is    equitable      and     efficient.             1

Wisconsin    Property       Assessment       Manual    at   7-32.        Additionally,

mass appraisal is widely used throughout the country.                                   See,

       10
       The dissent recognizes that assessing every single
property in the City of Milwaukee every year is "at the very
least, a daunting prospect," but would nevertheless mandate that
the task be completed.    Dissent, ¶97.  However, it appears to
rest on the flawed assumptions that the information needed to
conduct a single property appraisal is both reliable and
("practicably") available in all instances. This is problematic
for two reasons.

     First, the dissent assumes that the City should trust the
data submitted by Metropolitan, which the circuit court
specifically determined was not reliable.     Second, it assumes
that the information necessary to conduct a tier 2 valuation was
available to the City because it brought such a valuation to
trial and because Metropolitan provided it with information to
conduct such an analysis.      Id.    To say that the City can
practicably obtain the information because Metropolitan gave it
to them is to accept without scrutiny the data provided by a
self-interested party.    Importantly, we observe that the City
brought a tier 2 valuation to trial solely to defend its mass
appraisal.   It was forced to compile the information necessary
to conduct a tier 2 analysis only because Metropolitan
challenged   the  initial   mass   appraisal.    As   Weissenfluh
testified, it would not be practicable for the City to do this
for every property, every year.


                                            15
                                                                                No.     2016AP21



e.g.,   C.P.     &    Son,     Inc.    v.     Bd.      of    Cty.     Comm'rs   of    Cty.     of

Boulder,     953     P.2d 1303,        1304-05         (Colo.      App.    1998);     Walsh    v.

State Prop. Tax Appeal Bd., 677 N.E.2d 489, 493 (Ill. App. Ct.

1997); In re Johnson Cty. Appraiser/Privitera Realty Holdings,

283 P.3d 823, 828 (Kan. Ct. App. 2012); Revenue Cabinet, Com. of

Ky. v. Gillig, 957 S.W.2d 206, 209 (Ky. 1997); Darnall Ranch,

Inc. v. Banner Cty. Bd. of Equalization, 753 N.W.2d 819, 827

(Neb. 2008); Appeal of Wagstaff, 255 S.E.2d 754, 756 (N.C. Ct.

App.    1979);       Gray    v.     Wyoming      State       Bd.    of    Equalization,       896

P.2d 1347,       1349       (Wyo.    1995).           While     our      conclusion    is     not

dependent      on       the       practices           in    other        jurisdictions,        an

examination of such practices demonstrates that our approach in

endorsing mass appraisal does not make Wisconsin an outlier.

       ¶45   At the initial assessment stage, the best information

the City can "practicably" obtain is often that underlying a

mass appraisal.             Because its use is provided for by the Manual

and it allows the City to efficiently assess a large number of

properties, mass appraisal comports with Wis. Stat. § 70.32(1).
We thus reaffirm that mass appraisal is appropriately utilized

as a manner of valuing property under § 70.32(1).

       ¶46   Although         subject       to    modification,           the   Manual      sets

forth the procedures to be used.                            Wisconsin Stat. § 70.32(1)

directs the use of the Manual.                             The value reflected in the

initial mass appraisal can constitute the value of the property

for tax assessment purposes as long as it is not excessive.




                                                 16
                                                                      No.   2016AP21



       ¶47    Our recent decision in Regency W., 372 Wis. 2d 282,

does not alter this conclusion.              In Regency W., we determined

that the City of Racine:

       chose   not    to   employ [] information   [regarding
       projected expenses and income] and chose instead to
       calculate the [net operating income] for its income-
       based valuation through mass appraisal techniques that
       were not particularized to Regency West's property.
       We conclude that in that regard, Racine did not comply
       with the directive of § 70.32(1) because it did not
       use the "best information" that was available to its
       assessor.
Id., ¶40.       Regency W. can be fairly read to hold that mass

appraisal valuations are legally valid so long as the underlying

characteristics are appropriately particular to the property in

question.      In Regency W., the assessor refused to use expense

data    for   the     federally   regulated    subject       property,      relying

instead on expenses for market rate properties that did not

share the underlying characteristics.              Id., ¶¶40, 46.

       ¶48    We therefore conclude that the City's assessment of

the Southgate Apartments complied with Wis. Stat. § 70.32(1).

The    City   permissibly     utilized      mass   appraisal     to    value    the
property and appropriately defended its initial assessment with

single property appraisals demonstrating that the mass appraisal

was not excessive.

                                       IV

       ¶49    Metropolitan    contends      next   that   the    circuit       court

erred    in   concluding     that    Metropolitan     failed     to    rebut    the

presumption      of    correctness    to     which    City    assessments       are
entitled.      It asserts that we should reject the circuit court's

                                       17
                                                                            No.     2016AP21



findings regarding the reliability of the competing assessment

evidence      and     the   weight     and    credibility         the     circuit       court

attributed to that evidence.                 Metropolitan also argues that the

presumption      of    correctness       should      not      have    attached      to   the

City's assessment in the first instance.

       ¶50    Wisconsin       Stat.     § 70.49(2)            provides     that     a     tax

assessment being challenged pursuant to Wis. Stat. § 74.37 is

entitled to a presumption that it was "justly and equitably"

made, giving rise to a presumption of correctness.11                              Bonstores

Realty One, 351 Wis. 2d 439, ¶¶5, 7; Adams Outdoor Advert., 294

Wis. 2d 441,        ¶25.       The    presumption        can    be    overcome      if    the

challenging party presents significant contrary evidence.                                 See

Adams Outdoor Advert., 294 Wis. 2d 441, ¶25.

       ¶51    Metropolitan       advances         that   it    presented     significant

contrary      evidence        sufficient      to     rebut      the      presumption      of

correctness.        At trial, both the City and Metropolitan presented

the testimony of their respective appraisers.                             The City, in

defending its initial mass appraisal, presented the testimony of
City    assessor      Peter    Weissenfluh.          Metropolitan         presented       the

testimony of its own appraiser, Lawrence Nicholson.

       11
            Wisconsin Stat. § 70.49(2) provides:

       The value of all real and personal property entered
       into the assessment roll to which such affidavit is
       attached by the assessor shall, in all actions and
       proceedings involving such values, be presumptive
       evidence that all such properties have been justly and
       equitably assessed in proper relationship to each
       other.


                                             18
                                                                        No.       2016AP21



       ¶52    We turn first to the parties' respective tier 2 sales

comparison analyses.            In defending the initial mass appraisal,

Weissenfluh conducted a tier 2 sales comparison analysis of the

Southgate     Apartments.         Nicholson       likewise    provided       a    tier   2

sales comparison analysis.

       ¶53    A sales comparison analysis involves "a comparison of

properties similar to the subject property and adjustment for

differences."         Walgreen Co. v. City of Madison, 2008 WI 80, ¶22,

311 Wis. 2d 158, 752 N.W.2d 687                  (internal citations omitted).

"The    Manual       explains    that     this     approach    incorporates            'the

principles of substitution,' that buyers will not pay more for

property than it would cost them to acquire substitute property

of equal desirability and utility."                Id.

       ¶54    Under      the    sales    comparison        approach,    the       Manual

directs      that    a   property's      operating       expenses,     lease      terms,

management quality or tenant mix "should be considered."                                 1

Wisconsin Property Assessment Manual at 7-21.                   The circuit court

observed that the City did not, and should have, adjusted for
economic      characteristics       in     its    sales     comparison        analysis.

However,      the     City     mitigated        this     deficiency    because         the

valuations reached through the City's income approach supported

the valuations reached under the sales comparison approach.

       ¶55    Metropolitan,       however,       made    adjustments    to       its   own

appraisal based only on the properties' net operating income

without consideration of any other factors.                     In so doing, the

circuit      court    determined        that    Metropolitan    "conflate[d]           the
sales comparison and income approaches."
                                           19
                                                                                      No.       2016AP21



       ¶56       It    is    error     to    use    the       income     approach        "when       the

market value is established by a fair sale of the property in

question or like property."                    Markarian, 45 Wis. 2d at 686.                         The

income approach should only be used when there is no data of

comparable            property       on     which       to    base       a    sales      comparison

analysis.         Id.

       ¶57       Accordingly, the circuit court opined that, by relying

only    on       income,          "Metropolitan         [had]      not       presented      reliable

contrary evidence to support its sales comparison valuations."

As a result, the circuit court found that "[t]he City's sales

comparison            approach        is    more        reliable         than     Metropolitan's

approach."

       ¶58       Next, we turn to the parties' tier 3 analyses.                                      The

record      reflects         that     Weissenfluh            conducted        a   tier      3    income

analysis,12           as    did    Nicholson.           Pursuant       to     a   tier      3    income

analysis, a property's value is determined by reference to its

income      generating            potential.        Walgreen         Co.,      311    Wis. 2d 158,

¶24.        In applying the income approach, "the assessor must be
aware       of    what       is     happening       in       the   market.            All       of   the

information needed for the income approach is either obtained or


       12
       Weissenfluh performed an appraisal using the tier 3
income approach, even though under the Markarian framework it
was not required. See Walgreen Co. v. City of Madison, 2008 WI
80, ¶73, 311 Wis. 2d 158, 752 N.W.2d 687 (explaining that the
income approach is only favored over the sales comparison
approach   if   there  is  no   available  data  of  comparable
properties).   He used this approach to validate the results of
his earlier sales comparison approach.


                                                   20
                                                                            No.     2016AP21



verified by what the assessor finds in the marketplace."                                Id.

(citing Wisconsin Property Assessment Manual (2007) at 9-11).

     ¶59     As    it    did    with    the     sales   comparison        approach,     the

circuit court found that "[t]he City's income approach was more

reliable than Metropolitan's approach."                       Metropolitan's income

approach relied too heavily on Metropolitan's own expense ratio,

which is markedly higher than the expense ratios for similar

properties.             Further,       the      specific      expenses       that      were

responsible       for    the     heightened         expense      ratio    were     largely

administrative          and     payroll       expenses.          The     circuit     court

determined that these expenses are "not tied to the property

itself."13

     ¶60     Conversely, the City accounted for the market trend

with regard to expense ratio, imputing a lower expense ratio to

Metropolitan that was more in line with the market.                                  See 1

Wisconsin Property Assessment Manual at 9-12.                            As the circuit

court stated, "[t]he market trend is to maintain a lower expense

ratio,    and     the    City's       income    approach      accounted     for     this."
Because    the     City        took    the     market     into     consideration        and

Metropolitan did not, the circuit court found that "[t]he City's

income approach was more reliable than Metropolitan's approach."

     13
       Although we affirm on the basis that the circuit court's
fact finding was not clearly erroneous, we also observe that its
position finds support in the law: "[A]n assessor must have the
ability to discount, even disregard, factors that do not really
bear on the value of a property."    Adams Outdoor Advert., Ltd.
v. City of Madison, 2006 WI 104, ¶53, 294 Wis. 2d 441, 717
N.W.2d 803.


                                               21
                                                                                    No.    2016AP21



      ¶61        When the circuit court assessed the weight to be given

to    the        testimony         of     each     witness,          it      determined          that

Weissenfluh's appraisals were more reliable than Nicholson's.14

The weight to be given testimony is for the trier of fact.

Syvock      v.    State,      61    Wis. 2d 411,             414,   213     N.W.2d 11      (1973).

"When the trial court acts as the finder of fact, it is the

ultimate arbiter of the credibility of the witnesses and of the

weight to be given to each witness's testimony."                                       Lessor v.

Wangelin, 221 Wis. 2d 659, 665, 586 N.W.2d 1 (Ct. App. 1998).

      ¶62        We will upset a finding of fact only if it is clearly

erroneous.             Id.    at    665-66.        A     finding       of    fact   is     clearly

erroneous         if     it    is       against        the     great      weight     and       clear

preponderance of the evidence.                    State v. Arias, 2008 WI 84, ¶12,

311 Wis. 2d 358, 752 N.W.2d 748 (quoting State v. Sykes, 2005 WI

48, ¶21 n.7, 279 Wis. 2d 742, 695 N.W.2d 277 (quoting State v.

Tomlinson, 2002 WI 91, ¶36, 254 Wis. 2d 502, 648 N.W.2d 367)).

      ¶63        The    circuit         court's        observation          that    the        City's

approach was worthy of greater weight than Metropolitan's was
not   clearly          erroneous.          It     detailed          the     findings      of    each

assessor and noted what it determined to be deficiencies in

      14
       The dissent asserts that the circuit court's only two
findings of fact of import are (1) that the City's tier 2
analysis was missing an adjustment for economic characteristics,
and (2) that Metropolitan's tier 2 analysis erroneously adjusted
for net operating income.      Dissent, ¶90.    This formulation
disregards and fails to give effect to the circuit court's most
important finding:     that the City's appraisals were "more
reliable"   and  therefore   worthy   of  greater   weight  than
Metropolitan's.


                                                  22
                                                                      No.       2016AP21



Nicholson's approach.           The circuit court's findings were not

"against     the    great    weight      and   clear    preponderance           of   the

evidence."     Rather, the findings supported the circuit court's

conclusion to uphold the City's assessment.

     ¶64    Metropolitan additionally argues that the presumption

of correctness should not have attached to the City's assessment

in the first instance.           In support of this argument, it also

advances    that,    by     presenting    evidence      of   its   tier     2    and   3

analyses,    the    City    demonstrated       that    its   own   assessment        was

incorrect.15       Because we have concluded above that the circuit


     15
       Specifically, Metropolitan contends that the City cannot
rely on a presumption of correctness because the only evidence
it presented (Weissenfluh's tier 2 and 3 analyses) indicated
that the initial appraisal was too low.   Therefore, the tier 2
and 3 analyses undermine the correctness of the initial mass
appraisal and should not be considered.

     This argument is premised on footnote 19 from Regency W.,
2016 WI 99, ¶57 n.19, 372 Wis. 2d 282, 888 N.W.2d 611. However,
footnote 19 does not compel this conclusion.        Footnote 19
states:

     We do not consider the appraisals of Peter Weissenfluh
     and Dan Furdek because their appraisals exceeded the
     valuations of Racine for both 2012 and 2013.       See
     Trailwood Ventures, LLC v. Vill. of Kronenwetter, 2009
     WI App 18, ¶¶12-13, 315 Wis. 2d 791, 762 N.W.2d 841
     (concluding that a taxation district that has accepted
     the payment it requested has agreed that its taxation
     value is the maximum value that it may seek; Wis.
     Stat. § 74.37 permits a refund to the taxpayer or may
     uphold the status quo, but there is no authority for
     deficiency judgments).

Regency W. Apartments LLC v. City of Racine, 2016 WI 99, ¶57
n.19, 372 Wis. 2d 282, 888 N.W.2d 611.

                                                                      (continued)
                                          23
                                                                      No.   2016AP21



court's      findings   of   fact   regarding    the       reliability      of   the

respective appraisals are not clearly erroneous and sufficiently

support the circuit court's determination, regardless of whether

the presumption was employed, we need not address whether the

presumption     of   correctness    attached    to    the    City's     assessment

which was based on a mass appraisal.

       ¶65    In conclusion, we determine that the City's assessment

of the Southgate Apartments complied with Wis. Stat. § 70.32(1).

The City permissibly utilized mass appraisal for its initial

assessment     and    appropriately   defended       its    initial    assessment

with    single       property   appraisals      demonstrating           that     the


     Although we do not address the question of whether the
presumption of correctness applies to the City's assessment
based on the initial mass appraisal, we nevertheless consider it
prudent to address this argument to provide guidance to the bar
on the application of footnote 19.

     The court in Regency W. did not address the portions of the
Manual related to the use of mass appraisal as a means for
setting an initial assessment and single property appraisal to
defend initial assessments. Indeed, Regency West's property, as
explained above, did not lend itself well to mass appraisal.
See supra, ¶47.

     Metropolitan's reading of footnote 19 conflicts with the
directive from Wis. Stat. § 70.32(1) that property be assessed
in accordance with the Manual. The Manual dictates that a mass
appraisal, if challenged, be defended with a single property
appraisal.   To accept Metropolitan's interpretation of footnote
19 would mean that an assessor would be unable to defend an
assessment if the value he or she derived in a single property
appraisal exceeded the initial mass appraisal assessment. This
would lead to an absurd result. Ultimately, the question when a
taxpayer challenges an initial assessment is not whether the
initial assessment was incorrect, but whether it was excessive.
See Wis. Stat. § 74.37(1).


                                      24
                                                                 No.   2016AP21



assessment       was   not    excessive.        Further,         we    decline

Metropolitan's request to upset the circuit court's findings of

fact because we conclude that they are not clearly erroneous.

    ¶66     Accordingly, we affirm the decision of the court of

appeals.

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

affirmed.




                                    25
                                                                     No.     2016AP21.rgb&dk


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

J.     (dissenting).             The   law   requires    that      real      property    tax

assessments match as closely as possible the amount a buyer

would       pay    for     the     subject        property    in      an     arm's-length

transaction.             Our     statutes     provide        spare,        but   critical,

instructions on how municipalities must make that match.                                Most

significantly,           they    unmistakably       require     that       an    assessment

reflect the property's fair market value:

       Real property shall be valued by the assessor in the
       manner specified in the Wisconsin property assessment
       manual provided under s. 73.03(2a) from actual view or
       from the best information that the assessor can
       practicably obtain, at the full value which could
       ordinarily be obtained therefor at private sale.[1]
Wis.       Stat.   § 70.32(1)      (emphasis       added).2        This      statute    also

details the three types of analyses an appraiser may use in

arriving at that value:

       In determining the value, the assessor shall consider
       [1] recent arm's-length sales of the property to be
       assessed if according to professionally acceptable
       appraisal practices those sales conform to recent
       arm's-length sales of reasonably comparable property;
       [2] recent arm's-length sales of reasonably comparable
       property; and [3] all factors that, according to


       1
       "Fair market value or full value of property is
consistently defined as: '[T]he amount it will sell for upon
arms-length negotiation in the open market, between an owner
willing but not obliged to sell, and a buyer willing but not
obliged to buy.'"    Darcel, Inc. v. City of Manitowoc Bd. of
Review, 137 Wis. 2d 623, 628, 405 N.W.2d 344 (1987) (quoting
State ex rel. Mitchell Aero, Inc. v. Bd. of Review, 74
Wis. 2d 268, 277, 246 N.W.2d 521 (1976)).
       2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.


                                              1
                                                                 No.    2016AP21.rgb&dk

      professionally acceptable appraisal practices, affect
      the value of the property to be assessed.[3]
Id.       A property's assessment normally enjoys a presumption of

correctness under Wis. Stat. § 70.49.                 The presumption, however,

attaches     only     if     the    appraiser     used    the     proper     valuation

techniques.      See State ex rel. Markarian v. City of Cudahy, 45

Wis. 2d 683,        686,    173     N.W.2d 627      (1970)      (stating     that     the

presumption      of        correctness     "presuppose[s]         the       method    of

evaluation     is     in    accordance     with     the   statutes");        see     also

Regency W. Apartments LLC v. City of Racine, 2016 WI 99, ¶52,

372   Wis. 2d 282,          888     N.W.2d 611      ("Taxing      authorities        are

required to comply with the law when valuing properties, and

failing to do so negates the presumption of correctness that

Wis. Stat. § 70.49 otherwise accords.").

      ¶68    The assessment in this case was not based on any of

the three types of analyses listed in the statute.                      Instead, the

      3
       The     third       type    of   appraisal    encompasses        a   number    of
factors:

           Within tier three, an assessor may consider "all
      the factors collectively which have a bearing on value
      of the property in order to determine its fair market
      value."   These factors include "cost, depreciation,
      replacement value, income, industrial conditions,
      location and occupancy, sales of like property, book
      value, amount of insurance carried, value asserted in
      a prospectus and appraisals produced by the owner."
      The income approach, which seeks to capture the amount
      of income the property will generate over its useful
      life, and the cost approach, which seeks to measure
      the cost to replace the property, both fit into this
      analytic framework.

Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104,
¶35, 294 Wis. 2d 441, 717 N.W.2d 803 (citations omitted).


                                           2
                                                                           No.     2016AP21.rgb&dk


City's assessor used a technique known as "mass appraisal" to

determine    the        taxes    Metropolitan             must      pay.         Thus,    we    must

determine whether our statutes allow appraisers to use the mass

appraisal technique, and whether the result produced by that

technique    reflects           the    fair        market       value      of    Metropolitan's

property.     As discussed below, this technique is not authorized

by statute, and it is structurally incapable of identifying the

fair market value of a specific property.                                  Therefore, because

the assessed value under consideration was the product of the

mass appraisal technique, it is not entitled to the presumption

of correctness.

      ¶69    The majority opinion, however, not only erroneously

authorizes        the    mass     appraisal             technique,         but     also    avoids

entirely the question of whether the presumption of correctness

attaches——an important task because the circuit court's decision

depended upon the presumption:                         "Metropolitan has not overcome

the presumption of the assessments' correctness and therefore

cannot prevail."           We write separately to explain why the mass
appraisal technique is not authorized by Wis. Stat. § 70.32(1),

and why its use constitutes an error of law.                                    We also analyze

whether     the     City's       or     Metropolitan's              single-property            sales

comparison assessments can be used as the basis to calculate

Metropolitan's tax liability.                           Based on the circuit court's

findings     that        both     the        City's           and   Metropolitan's             sales

comparison    appraisals              are     based       on     flawed      information,         we

conclude that neither single-property assessment complied with
the   statute;      therefore,              this       case    should       be    reversed      and

                                                   3
                                                                          No.      2016AP21.rgb&dk


remanded for the circuit court to remand to the Board of Review

to     remand    to     the     assessor           with       directions        to    perform     a

statutorily-compliant sales comparison analysis to determine the

fair    market     value      of      Southgate          using      the     best      information

available.

                                   I.    MASS APPRAISALS

       ¶70   The      majority          says       our        law   authorizes         the      mass

appraisal       technique       for      two     reasons.           First,      the     Wisconsin

Property Assessment Manual (the "Manual") discusses the method,

and encourages its use.                  Second, it says mass appraisal is the

only     practical      means       of     assessing            all   the       properties        in

Milwaukee every year.              Neither of these reasons finds support in

the laws of our State.             In fact, they say the opposite.

                           A.      The Manual's Authority

       ¶71   The      majority          should         have    paid   more       attention       to

whether the mass appraisal technique is authorized by law.                                       It

touched this question so lightly, however, that it missed the

legislatively-prescribed relationship between the statutes, the
Department of Revenue, and this court in developing and curating

the    Manual's       contents.          As    a       consequence,       this       court     found

authority for the mass appraisal technique where there was none.

       ¶72   The      majority      opinion            assumes,     sotto    voce,      that     the

legislature       entrusted        the     Manual's            content      entirely      to    the

Department of Revenue, and that whatever the Department puts in

the Manual comprises a proper method of appraisal.                                   The majority

observed, and truly so, that "property must be assessed 'in the
manner specified in the Wisconsin property assessment manual.'"

                                                   4
                                                                        No.       2016AP21.rgb&dk


Majority    op.,        ¶35      (quoting        Wis.    Stat.       § 70.32).          But    the

observation is pregnant with this question:                           What techniques may

the Manual prescribe?                If the majority had engaged that subject,

it would have found two substantive constraints on its content

that make the mass appraisal technique ineligible for inclusion.

      ¶73   The first constraint relates to the very purpose for

developing       the    Manual.            The   Manual       is   supposed        to   help    an

assessor    develop         a    statutorily-compliant               appraisal.         And    the

sole purpose of that appraisal is to fulfill the directive that

"[r]eal property shall be valued . . . at the full value which

could ordinarily be obtained therefor at private sale."                                       Wis.

Stat. § 70.32(1).               Thus, when the statute directs the assessor

to   appraise      the      property        "in       the    manner     specified       in     the

Wisconsin property assessment manual," it presupposes that the

Manual fixes its sights on the specific property's fair market

value.      So    we     view        the   Manual's         authority   in     light     of    its

ability to achieve that objective.

      ¶74   The        legislature           delegated         responsibility           to     the
Department to develop the Manual, but the Manual exists only to

fulfill the statute's goal.                  If the Manual contains a technique

that does not produce the "full value which could ordinarily be

obtained    therefor            at   private      sale,"      then    the     technique       lies

outside     the        legislative          mandate.            Without       a    legislative

pedigree,    such       a     technique      would      necessarily         lack    authority.

This court has said so before.                        In Metropolitan Holding Co. v.

Board of Review, 173 Wis. 2d 626, 495 N.W.2d 314 (1993), this
court rejected one of the Manual's prescriptions for precisely

                                                  5
                                                                       No.    2016AP21.rgb&dk


this reason.         The court concluded the Manual's direction would

not   fulfill       the      statute's      requirement          that        the    appraisal

determine a property's fair market value:                        "In summary, we hold

that the assessment of [the property] violated sec. 70.32(1),

Stats.      even     though     the      assessment        was     pursuant           to     the

instructions        set     forth   in     the   Wisconsin       Property          Assessment

Manual."     Metropolitan Holding Co., 173 Wis. 2d at 633.                            That is

to say, the Manual's prescriptions are authoritative only to the

extent    they      assist    in    discovering       a    property's          fair    market

value.

      ¶75    The second constraint on the Manual is that it must

conform to our decisions, not vice-versa.                        That is not judicial

hubris, it is an explicit legislative requirement.                              The statute

authorizing the Manual's creation says it "shall be amended by

the department from time to time to reflect advances in the

science     of     assessment,      court    decisions       concerning             assessment

practices,         costs,     and     statistical         and     other            information

considered valuable to local assessors by the department."                                 Wis.
Stat. § 73.03(2a) (emphasis added).                   Thus, if some part of the

Manual conflicts with our decisions, we are duty bound to ignore

it.   See Allright Prop., Inc. v. City of Milwaukee, 2009 WI App

46,   ¶10,    317     Wis. 2d 228,         767   N.W.2d 567.             As    we     said    in

Metropolitan Holding Company, the "Manual conform[s] to, rather

than establish[es], Wisconsin Law."                   Metropolitan Holding Co.,

173 Wis. 2d at 633.

      ¶76    It     is    within    this    context       that    we     should       consider
whether the assessor may rely on the mass appraisal technique to

                                             6
                                                                   No.      2016AP21.rgb&dk


determine a property's fair market value.                      As relevant to this

case,     an    appraisal      can    lose    its       authoritative        bona   fides,

notwithstanding the Manual's blessing, in two ways.                             First, by

using an appraisal method that finds no warrant in the law.                              Or

second, by using a statutorily-compliant appraisal method that

nonetheless incorporates elements that prevent it from producing

the property's fair market value.

                  B.    The Mass Appraisal Technique Cannot
                           Discover Fair Market Value
         ¶77    The mass appraisal technique did not identify the fair

market value of Metropolitan's property.                    And it did not because

it could not.           We know this because the City said so.                        Well,

more     than    just   said    so——the      City       asseverated      that   the    mass

appraisal        technique     does    not       even    attempt      to    achieve     the

statute's prime directive, to wit, discovering the fair market

value of the subject property:

         At the outset, mass appraisal and single-property
         appraisal are two different valuation techniques.
         According to the WPAM,[] "Mass appraisal is the
         systematic appraisal of groups of properties, as of a
         given   date,   using   standardized   procedures   and
         statistical   testing.   In  sharp   contrast,   single
         property or "fee" appraisal is the valuation of one
         particular property as of a given date."
(Emphasis added.)

         ¶78 "Sharp contrast," indeed.                   The statute requires the

assessor to identify the value of a specific property, whereas

the existential purpose of the mass appraisal technique is to

avoid that task.             This technique values groups of properties
and, as the City admits, appraisers necessarily derive the value

of   a    group    from    trends     and     statistics,       not        individualized
                                             7
                                                                       No.       2016AP21.rgb&dk


considerations:                "Mass     appraisal,           unlike       single        property

appraisal, requires the development of a valuation model capable

of replicating the forces of supply and demand over a large

area."         Buyers and sellers, of course, do not settle on a price

based     on     what    the    forces      of       supply    and     demand       say     about

properties not under contract.                       They consult the fair market

value     of     the    specific       property       that    is   the     subject        of   the

transaction.            The     mass     appraisal       technique          is    simply       not

designed to discover that information.                        So if the assessed value

of Metropolitan's property were to match its fair market value,

it would be nothing more than a happy coincidence.                               The prospect

of   a    happy    coincidence         does   not      receive       the     presumption        of

correctness.

         ¶79    This is the reason this court rejected the appraisal

in Metropolitan Holding Company.                        There, the City's assessor

used      a     capitalization         of   income       approach          to    determine       a

property's value.             Metropolitan Holding Co., 173 Wis. 2d at 629.

But instead of using the property's actual income as the basis
of his calculations, he used a hypothetical income derived from

a    market      survey.         Id.        The      resulting       opinion        of    value,

therefore, could not describe the subject property's fair market

value; it could describe only the value of a chimeric property

comprising both real and fictional elements.                                Id. at 631-32.

This court said that was a violation of Wis. Stat. § 70.32(1)

because the opinion failed to reflect the fair market value of

the subject property.             Id. at 632.



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       ¶80       The mass appraisal technique represents the extension

and formalization of the very error that caused us to reject the

appraisal in Metropolitan Holding Company.                            Whereas there the

appraiser valued a chimera                (which was bad enough), the mass

appraisal technique here values an entirely fictional property

(which       is    worse).        Thus,      this        methodology    is    statutorily

deficient because it is structurally incapable of determining

the    fair        market      value    of         the     specific     property        under

consideration.

            C.     Mass Appraisal Is Not an Authorized Technique

       ¶81       The mass appraisal technique is also deficient because

it is a valuation method that does not fit within the Markarian

trilogy.          For good or for ill, we have developed a rigid three-

tier       hierarchy     of     appraisal      methodologies,          and    we   require

assessors to comply with it punctiliously.                            See Adams Outdoor

Adver. Ltd. v. City of Madison, 2006 WI 104, ¶34, 294 Wis. 2d

441, 717 N.W.2d 803.              The first tier, and the one we consider

the best evidence of fair market value, is a recent arm's-length
sale of the subject property.4                      The second tier inquires into

recent       arm's-length       sales     of       properties     comparable       to     the

subject       property        (while    making       adjustments       for    differences




       4
       "We conclude that an arms-length sale price is the best
indicator to determine fair market value for property tax
purposes." Darcel, Inc., 137 Wis. 2d at 624.


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capable      of   affecting    a    property's        value).5        The     third     tier

includes      techniques      such       as    capitalization         of     income      and

replacement cost.6       Id., ¶¶34-35.

      ¶82     The   hierarchy      is    rigid      because    we    believe      that    an

appraisal method's ability to accurately reflect a property's

fair market value decreases as one descends through the tiers.7

Consequently, if there is a sale of the subject property that

can be used in the tier-one valuation method, we have said it is

an error of law to use a different method:                          "We conclude that

the   fair    market   value       was   established      by     this      sale   [of    the

subject property] and that other evidence tending to show what

market value might be, which might be resorted to in the absence

of such a sale, may not be used here to overthrow the evidence

of the market itself."               State ex rel. Evansville Mercantile

Ass'n v. City of Evansville, 1 Wis. 2d 40, 45, 82 N.W.2d 899

(1957); Darcel, Inc. v. City of Manitowoc Bd. of Review, 137

      5
       "The 'best information' of                   such value is a sale of the
property or if there has been                      no such sale then sales of
reasonably comparable property."                    State ex rel. Geipel v. City
of Milwaukee, 68 Wis. 2d 726,                      733, 229 N.W.2d 585 (1975)
(citation omitted).
      6
       "The income approach, which seeks to capture the amount of
income the property will generate over its useful life, and the
cost approach, which seeks to measure the cost to replace the
property, both fit into this analytic framework." Adams Outdoor
Advert.,   Ltd.,   294  Wis. 2d 441,   ¶35  (citations   omitted)
(referring to tier-three appraisals).
      7
       Whether that belief is warranted is a matter of some
debate.    Wisconsin Stat. § 70.32(1) does not describe these
three categories as a hierarchy, but instead as a conjunctive
list of considerations for which an appraiser must account in
developing an opinion of value.


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Wis. 2d 623,        624,    405        N.W.2d 344        (1987)       ("We     conclude

that . . . an approach that considers factors extrinsic to the

arms-length sale [of the subject property] is not statutorily

correct and therefore in error as a matter of law.").

      ¶83     Likewise, if there are comparable sales sufficient to

conduct a tier-two analysis, it is an error of law to instead

use a tier-three methodology:

      The "best information" of such value is a sale of the
      property or if there has been no such sale then sales
      of reasonably comparable property.   In the absence of
      such sales, the assessor may consider all the factors
      collectively which have a bearing on value of the
      property in order to determine its fair market value.
      However, it is error to use this method when the
      market value is established by a fair sale of the
      property in question or like property.
State ex rel. Geipel v. City of Milwaukee, 68 Wis. 2d 726, 733,

229   N.W.2d 585,        588–89   (1975)          (citation    and    internal    marks

omitted); see also Adams Outdoor Advert., Ltd., 294 Wis. 2d 441,

¶37 ("If there were reasonably comparable sales, but the City

used the income approach, the assessments would be invalid.");

State ex rel. Hennessey v. City of Milwaukee, 241 Wis. 548, 553,

6 N.W.2d 718 (1942) ("When [fair market] value is established by

the sale of the instant and like property there is no occasion

to resort to reproduction value less depreciation as was here

done to determine that value."); State ex rel. Enter. Realty Co.

v. Swiderski, 269 Wis. 642, 645, 70 N.W.2d 34 (1955) (stating

that "facts [supporting tier-three analysis] only indicate what

the fair market value is and there is no occasion to resort to
them,   and    it   is   wrong    to    do    so,    when     the    market   value   is


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established by a fair sale of the property in question or like

property.").

      ¶84    And finally, we have consistently rejected valuation

methodologies        that   do     not    find    a   home   in   this      three-tiered

hierarchy.         See, e.g., State ex rel. Nw. Mut. Life Ins. Co. v.

Weiher,     177     Wis.    445,    448,       188    N.W. 598    (1922)      (rejecting

valuation based on a property's "intrinsic value," rather than

its   sale       value);    State        ex    rel.   Markarian,       45    Wis. 2d 683

(rejecting valuation based on predicted post-development value,

rather      than    on     comparable         sales);    State    ex     rel.     Lincoln

Fireproof Warehouse Co. v. Bd. of Review, 60 Wis. 2d 84, 98, 208

N.W.2d 380 (1973) (rejecting valuation based on the property's

"intrinsic value.").

      ¶85    So now we must compare the mass appraisal technique to

our stable of authorized methodologies.                       At trial, the City

admitted this method does not belong in that stable.                                It is

neither fish nor fowl, as the saying goes, but a pastiche of

various methodologies:

             Q So let me ask you this question. Did the mass
             appraisal technique that was followed in 2008
             contain a cost approach?

             [City Assessor:]            For this particular property?

             Q     Yes.

             [City Assessor:]            No.

             Q     Did it contain a comparable sales analysis?

             [City Assessor:] Not in the strict form and the
             methodology that I have done in this report or
             that Mr. Tsoris had done for the board of review.

             Q     Did it follow the income approach?
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             [City Assessor:]     There were elements of the
             income approach again with reference to the
             market and sales. So I would say it's a
             combination   of  information   from the  market
             developed into a process that is systematic and
             allowable for statistical testing.
    ¶86      Unless       we    abandon     the    Markarian        trilogy,      we    must

necessarily conclude that the mass appraisal technique is not

lawful.      It does not reflect a recent arm's-length sale of the

subject property, so it cannot be considered a tier-one method.

And although it apparently resembles the comparable sales method

(tier     two),     it      does      not   follow       its      "strict        form       and

methodology."         That      must    certainly     be    true,       inasmuch       as    it

incorporates        elements           of   a     tier-three            method     (income

capitalization).          And finally, it incorporates factors entirely

exogenous to the Markarian trilogy by relying on the value of

groups of properties determined through the use of "standardized

procedures and statistical testing."

    ¶87      The    mass       appraisal    technique       may    be      efficient,       but

efficiency     is     not       the    standard     by     which      we     measure        its

compliance with statutory requirements and our opinions.                                This

valuation method is not designed to discover the fair market

value   of    Metropolitan's           property,     and     it    operates       entirely

outside      the     universe          of   previously            approved       appraisal

techniques.        Today, the majority unwisely places this court's

imprimatur on the City's appraisal methodology by making the

Markarian trilogy a tetralogy.                  The new addition will not rest

comfortably        with     the       others,     because      the      mass     appraisal

technique is not trying to accomplish the same objective as the
others.

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                     II.    SALES COMPARISON EVALUATIONS

      ¶88    Having concluded that mass appraisal is not authorized

by statute and not entitled to the presumption of correctness,

we   are    left    with   determining     whether   either   of    the   single-

property sales comparison assessments in the record satisfied

Wis. Stat. § 70.32(1).

      ¶89    "Failure to make an assessment on the statutory basis

is   an     error    of    law."    Adams       Outdoor   Adver.,     Ltd.,    294

Wis. 2d 441, ¶26.          "Whether the City followed the statute in

making its assessment is a question of statutory interpretation

that we review de novo."            Id.        A circuit court's findings of

facts      will     not    be   overturned       unless   clearly     erroneous.

Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI App 131,

¶6, 351 Wis. 2d 439, 839 N.W.2d 893.

      ¶90    There are two findings of fact of importance here:

(1) the circuit court found that the City's sales comparison was

erroneously missing an adjustment for economic characteristics;

and (2) the circuit court found Metropolitan's sales comparison




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erroneously adjusted for net operating income (NOI).8                                 These

findings, which are not clearly erroneous, make both the City's

and   Metropolitan's       sales      comparison          evaluations          materially

deficient because neither complies with the requirements of a

proper sales comparison analysis.

      ¶91   Because no recent sale of Southgate exists, the proper

assessment    must    be   based    on      the    sale     price       of    comparable

properties,    with    adjustments       to       reach    a    value        the   subject

property    would    likely   fetch    if     it    were       sold.     There       is   no

dispute that comparable properties exist; thus, the "tier two"

approach provides the best method to determine fair value.

      ¶92   The Manual defines comparable sales under the "Sales

Comparison Approach" as:           "properties that are similar to the

subject property in age, condition, use, type of construction,

location,      design,        physical             features            and         economic

      8
       The majority hangs its hat on a circuit court "finding"
that the City's appraisals were "more reliable" and claims the
circuit court gave more "weight" to the City assessor's
testimony.    Majority op., ¶¶4-5, ¶61 & n.14.      The circuit
court's reference to "more reliable" was not, however, a finding
of fact.    Rather, it was a conclusion of law based on two
findings: (1) Metropolitan's assessor used NOI to make economic
adjustments to its sales comparison appraisal, and (2) even
though the City's sales comparison assessment failed to adjust
for economic characteristics, the City's tier-three assessment
supports its tier-two assessment. The circuit court's decision
never uses the term "weight" or discusses the "credibility" of
the assessor's testimony. Instead, the circuit court concludes
the City's sales comparison assessment complies with the statute
and Metropolitan's does not.        The circuit court's legal
conclusion was wrong and mischaracterizing it as a credibility
determination does not redeem the error. Neither the City's nor
Metropolitan's sales comparison assessments comply with the
statute.


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characteristics."          1 Property Assessment Manual, ch. 7, at 7-20

(2009).        The Manual then provides a list of six "Elements of

Comparison":

    1. Real property rights conveyed

    2. Financing terms

    3. Time (market conditions)

    4. Location

    5. Physical characteristics (e.g. size,                            construction
       quality, age, condition, features)

    6. Economic characteristics (e.g. operating expenses,
       lease terms, management, and tenant mix).
Manual at 7-21 (emphasis added).                       The City did not make any

adjustments       for    economic       characteristics,           claiming        none    were

necessary.            Metropolitan's          appraiser       made     adjustments           for

economic       characteristics,         but      based       the   adjustment         on     NOI

instead    of    "operating       expenses,          lease    terms,    management,          and

tenant    mix."         Both   resulted         in   evaluations       contrary       to    the

statutory requirements.

    ¶93        With     respect    to     the    City's      failure       to    adjust     for

economic    characteristics,            the     circuit      court     explicitly          found

that "the City did not make specific adjustments for economic

characteristics"         and   "[i]t      should       have."        Nevertheless,          the

circuit court proceeded to choose the City's assessment as more

reliable because its tier-three income evaluation vouched for

the numbers in its sales comparison.                     But this court interpreted

the statutory language to mean we cannot use the income approach
unless    no    comparable        sales    exist,       and    everyone         agrees     that

comparable sales do exist.                    Adams Outdoor Adver., Ltd., 294
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Wis. 2d 441, ¶34 ("Only if there has been no arms-length sale

and there are no reasonably comparable sales may an assessor use

any of the third-tier assessment methodologies.").                                 Using the

income approach to prop up the City's flawed sales comparison

approach improperly conflates the two approaches.                              The circuit

court's    finding    that     the     City       "failed       to    but    should     have"

adjusted     its      sales     comparison            evaluation            for      economic

characteristics      renders     the        City's       sales    comparison         approach

violative     of    the      statute.             Therefore,         the     City's     sales

comparison approach cannot be used.

     ¶94    Next,     we      consider        whether           Metropolitan's          sales

comparison evaluation can be used.                   The circuit court found that

Metropolitan's sales comparison analysis does not comply with

the statute because although Metropolitan adjusted for economic

characteristics,      it     chose     to    adjust       for     NOI      instead    of     the

factors     the     Manual     identifies           as     part       of     the     economic

characteristics adjustment:                 "operating expenses, lease terms,

management, and tenant mix."                Manual at 7-21.              Quoting from The
Appraisal     of    Real      Estate        300     (13th        Ed.),      Metropolitan's

appraiser explained why he adjusted for NOI instead of making an

adjustment solely on the factors listed in the Manual:                                "Buyers

of   income-producing          properties           usually          concentrate        on     a

property's    economic       characteristics             and   put    more     emphasis       on

conclusions of the Income Capitalization Approach."                                He further

explained    that    large     apartment          complexes       are       purchased      "for

their      income     streams"         and        therefore           considering          "the
comparables' respective economics relative to the subject's" was

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important.    Even if we agreed that NOI constitutes the best

adjustment   factor   in   ascertaining   true   fair    market   value,

Wisconsin law does not list NOI as an element of comparison in

conducting the sales comparison approach.        Thus, Metropolitan's

appraisal cannot be used in determining the correct assessment.9
     9
       It should not be a surprise that independent appraisers,
who rely on the Manual to determine fair value, produce reports
contrary to the statute because the Manual contains instructions
that conflict with the assessment statute.        For example, the
Manual does not require the same strict three-tier progressive
Markarian hierarchy courts follow.          Instead, the Manual
instructs that all methods for which information exists should
be conducted and then the final value of the property determined
by a "reconciliation" of all the methods.       Manual, 7-18, 7-19
("The appraisal process consists of . . . developing preliminary
values based on the three approaches to value, then reconciling
the results to determine the most probable market value."; "The
appraiser should consider all three approaches when estimating
the value of a property."; "Reconciliation is the process by
which the appraiser evaluates and selects from the alternative
approaches to value.").    The Manual also specifically instructs
that the income approach is most commonly used in determining
the value of commercial property, including apartment complexes
having more than four units, because this is the information a
buyer (or investor) most often uses to determine purchase price.
Manual, 7-20; 9-6 ("Appraisers typically use the income approach
for income-producing properties" because "buyers and sellers of
income-producing property may place the most reliance on the
income approach because it explicitly considers the net income
of the property."; "Buyers and sellers of commercial properties
usually base their transaction decisions on the property's net
operating income.").     These principles may explain why the
income approach appears first in Metropolitan's appraiser's
report.   Although this may accurately reflect how appraisers
normally arrive at an opinion of value, it does conflict with
the court's current understanding that the statute maintains a
rigid separation between the valuation methods, and requires a
hierarchical prioritization amongst them.     So, as it currently
stands, the Manual's principles on this subject are at odds with
the court's requirement that assessors use the "tier two"
approach when comparable properties exist.         When the Manual
conflicts   with  our    interpretation  of    the    statute, our
interpretation controls.

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       ¶95    With no statutorily-compliant assessment from either

party, this case should be remanded to the circuit court to

remand to the Board of Review to remand to the assessor with

directions      to    conduct         a   proper     assessment     under        the   sales

comparison          approach          with     an     adjustment          for      economic

characteristics           using       the     best     information        available       to

determine the fair market value of Southgate.

                                  III.       PRACTICALITY

       ¶96    A brief word on practicality.                 The majority says that

"[t]he arguments center on the meaning of 'best information that

the    assessor      can     practicably        obtain.'"      Majority           op.,   ¶26

(quoting Wis. Stat. § 70.32(1)).                    That is certainly where one of

the parties wanted to center the argument, and full marks to the

City for successfully getting this court to focus our attention

there.       But this case has nothing to do with what information

"the assessor can practicably obtain."                      It is about what the

assessor      does    with      the    information      indisputably       available      to

him.
       ¶97    All of the information necessary to perform a tier-two

valuation of Metropolitan's property was "practicably" available

to the City.         We know this because the City brought just such a

valuation      to    trial      (and      Metropolitan    willingly        provided      the

underlying data year after year).                      What the majority opinion

really means to say is not that the information for a tier-two

analysis is not practicably available to the assessor, but that

the    time    to    do    an     authorized        analysis   is    not        practicably
available to him.            That may certainly be true:                  He must assess

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every single property in the City of Milwaukee every single

year.     That is, at the very least, a daunting prospect.    But if

he does not have enough time to do that, he needs either more

staff or an amendment to the requirement that he make yearly

assessments.10    Neither of those needs, however, is capable of

changing the meaning of the statute.11




     10
       This is true, of course, only if the City wishes us to
presume its assessment is correct.  The City has two available
options.    It may either (a) receive the presumption of
correctness by performing a statutorily-compliant appraisal, or
(b) forego the presumption of correctness and perform a mass
appraisal.   What it may not do is ask for the presumption of
correctness after performing an appraisal that does not comply
with the law.
     11
       In footnote 10, the majority objects to following the law
set forth in the statute because:    (1) it would have to trust
data Metropolitan——a self-interested party——submitted; and (2)
the best information is available only because Metropolitan
challenged the mass appraisal, which forced the City to do the
calculation the statute requires.    The first objection is so
sweeping that it calls into question a City's ability to ever
conduct a tier-two appraisal of a commercial property (because
it incorporates data in the hands only of the property owner),
or a tier-three capitalization of income appraisal (because
almost all of the information is solely in the owner's
possession).   The possibility certainly exists that a taxpayer
may commit fraud by falsifying its income and costs, but that
possibility does not alleviate the City's responsibility to
follow the statute.

                                                        (continued)
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       ¶98    So, after today, our instruction to assessors will be

as follows.         You must determine the fair market value from a

recent arm's-length sale of the subject property, if such a

transaction is available.              If you do not, you err as a matter of

law.     If    such    a     sale   is   not       available,   you      must     base   the

property's value on the sale of comparable properties.                              If you

do not, you err as a matter of law.                      If there are not enough

comparable sales to perform the analysis, then you must apply a

tier-three      analysis,       such     as        capitalization     of    income,       or

replacement cost.            If you do not, you err as a matter of law.

All of this we will require of you without fail.                                Unless, of

course, you don't have enough time.                     In that case, you can set

aside the Markarian hierarchy, ignore our opinions, forget the

statutory mandate to determine the fair market value of the

subject property, and do whatever the Manual tells you to do.

It   seems    odd     that    our   entire         jurisprudence    on     this    subject

     Moreover, the City chose to "trust" Metropolitan's actual
rents but not its actual costs.     Instead, the City used data
from other apartment owners who voluntarily provide this
information in response to annual surveys the City conducts.
The same possibility of falsified data arises from the use of
this data.    In fact, as indicated on several of the City's
exhibits, the City has to fabricate some of this data in order
to calculate the average "market" expense ratio:       "City of
Milwaukee imputed 5% management fee to comparables #2, #3 and
#4" presumably because those properties did not report any costs
tied to management, and "City of Milwaukee appraiser imputed
reserves for replacements at 3% of EGI."

     The majority's second objection is also not persuasive.
The City has not been forced to do anything by Metropolitan.
The statute and our opinions describe what comprises a compliant
appraisal, so if there has been any forcing, it was coming from
the legislature and the court, not Metropolitan.


                                              21
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depends on whether the assessor has enough time, but there you

have it.

    ¶99    Having said all this, petitioners should be wary of

what they ask for.          A successful challenge to the lawful basis

of an assessment does not mean that the case gets remanded for a

renewed contest over its excessiveness.                      It goes back for a new

assessment.      State       ex    rel.       Boostrom       v.   Bd.      of    Review,    42

Wis. 2d 149, 156, 166 N.W.2d 184 (1969).                          And that means the

petitioner    will    not    enjoy       the       assurance      that     the    assessment

cannot increase.

                                   IV.    CONCLUSION

    ¶100 Mass        appraisal           is    not      a      statutorily-authorized

appraisal method because it is a creation of the Manual, not the

legislature, and it cannot produce "the full value which could

ordinarily be obtained therefor at private sale."                                 Wis. Stat.

§ 70.32(1).      It     is        not    entitled       to     the       benefit      of   the

presumption of correctness.               Setting the mass appraisal aside,

we are left with the parties' single-property, sales comparison
appraisals.    Neither complied with § 70.32(1).                         This case should

be reversed and remanded for the circuit court to remand to the

Board of Review to remand to the assessor with directions to

conduct a statutorily-compliant assessment based on the sales

comparison     approach       and        properly           adjusted       for       economic

characteristics using the best information available.

    ¶101 For these reasons, we respectfully dissent.




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