Section 70.32. Real estate, how valued.

 

(1)  Real property shall be valued by the assessor in the manner specified in the Wisconsin property assessment manual provided under s. 73.03 (2a) from actual view or from the best information that the assessor can practicably obtain, at the full value which could ordinarily be obtained therefor at private sale. In determining the value, the assessor shall consider 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.

(1g)  In addition to the factors set out in sub. (1) , the assessor shall consider the effect on the value of the property of any zoning ordinance under s. 59.692 , 61.351 , 61.353 , 62.231 , or 62.233 , any conservation easement under s. 700.40 , any conservation restriction under an agreement with the federal government and any restrictions under ch. 91 . Beginning with the property tax assessments as of January 1, 2000, the assessor may not consider the effect on the value of the property of any federal income tax credit that is extended to the property owner under section 42 of the Internal Revenue Code.

(1m)  In addition to the factors set out in sub. (1) , the assessor shall consider the impairment of the value of the property because of the presence of a solid or hazardous waste disposal facility or because of environmental pollution, as defined in s. 299.01 (4) .

(2)  The assessor, having fixed a value, shall enter the same opposite the proper tract or lot in the assessment roll, following the instruction prescribed therein.

(a) The assessor shall segregate into the following classes on the basis of use and set down separately in proper columns the values of the land, exclusive of improvements, and, except for subds. 5. , 5m. , and 6. , the improvements in each class:

1. Residential.

2. Commercial.

3. Manufacturing.

4. Agricultural.

5. Undeveloped.

5m. Agricultural forest.

6. Productive forest land.

7. Other.

(c) In this section:

1d. “Agricultural forest land" means land that is producing or is capable of producing commercial forest products, if the land satisfies any of the following conditions:

a. It is contiguous to a parcel that has been classified in whole as agricultural land under this subsection, if the contiguous parcel is owned by the same person that owns the land that is producing or is capable of producing commercial forest products. In this subdivision, “contiguous" includes separated only by a road.

b. It is located on a parcel that contains land that is classified as agricultural land in the property tax assessment on January 1, 2004, and on January 1 of the year of assessment.

c. It is located on a parcel at least 50 percent of which, by acreage, was converted to land that is classified as agricultural land in the property tax assessment on January 1, 2005, or thereafter.

1g. “Agricultural land" means land, exclusive of buildings and improvements and the land necessary for their location and convenience, that is devoted primarily to agricultural use.

1i. “Agricultural use" means agricultural use as defined by the department of revenue by rule and includes the growing of short rotation woody crops, including poplars and willows, using agronomic practices.

1k. “Agronomic practices" means agricultural practices generally associated with field crop production, including soil management, cultivation, and row cropping.

1m. “Other," as it relates to par. (a) 7. , means buildings and improvements; including any residence for the farm operator's spouse, children, parents, or grandparents; and the land necessary for the location and convenience of those buildings and improvements.

2. “Productive forest land" means land that is producing or is capable of producing commercial forest products and is not otherwise classified under this subsection.

3. “Residential" includes any parcel or part of a parcel of untilled land that is not suitable for the production of row crops, on which a dwelling or other form of human abode is located and which is not otherwise classified under this subsection.

4. “Undeveloped land" means bog, marsh, lowland brush, uncultivated land zoned as shoreland under s. 59.692 and shown as a wetland on a final map under s. 23.32 or other nonproductive lands not otherwise classified under this subsection.

(2r)  Agricultural land shall be assessed according to the income that could be generated from its rental for agricultural use.

(3)  Manufacturing property subject to assessment under s. 70.995 shall be assessed according to that section.

(4)  Beginning with the assessments as of January 1, 2004, agricultural forest land shall be assessed at 50 percent of its full value, as determined under sub. (1) , and undeveloped land shall be assessed at 50 percent of its full value, as determined under sub. (1) .

1973 c. 90 ; 1977 c. 29 , 418 ; 1979 c. 34 ; 1981 c. 20 , 390 ; 1983 a. 36 ; 1983 a. 275 s. 15 (8) ; 1983 a. 410 ; 1985 a. 54 , 153 ; 1991 a. 39 , 316 ; 1993 a. 337 ; 1995 a. 27 , 201 , 227 ; 1999 a. 9 ; 2001 a. 109 ; 2003 a. 33 , 230 ; 2009 a. 177 , 235 , 276 , 401 ; 2013 a. 80 . Cross-reference: See also ch. Tax 18 , Wis. adm. code. When market value is established by a fair sale of the property or sales of reasonably comparable property are available, it is error for an assessor to resort to other factors to determine fair market value, although such factors in the absence of such sales would have a bearing on market value. Rules on judicial review of valuation presuppose that the method of evaluation is in accordance with the statutes; hence errors of law should be corrected by the court on certiorari and the failure to make an assessment on the statutory basis is an error of law. State ex rel. Markarian v. Cudahy, 45 Wis. 2d 683 , 173 N.W.2d 627 (1970). While a sale establishes value, the assessment still has to be equal to that on comparable property. Sub. (2) requires the assessor to fix a value before classifying the land; it does not prohibit the assessor from considering the zoning of the property when it is used for some other purpose. State ex rel. Hensel v. Town of Wilson, 55 Wis. 2d 101 , 197 N.W.2d 794 (1972). In making an assessment based on a recent sale of the property, the assessor cannot increase the value because no commission was paid to a broker. Lincoln Fireproof Warehouse v. Milwaukee Board of Review 60 Wis. 2d 84 , 208 N.W.2d 380 (1973). Under an option agreement, the sellers' right to repurchase their homestead and their right of first refusal for the purchase of industrial buildings to be constructed on the property were factors going only to the willingness of the parties to deal, not their compulsion to do so; the value of these rights, together with the monetary amount per acre, comprised the total sale price of the land. Geipel v. Milwaukee, 68 Wis. 2d 726 , 229 N.W.2d 585 (1975). Evidence of net income from unique property was admissible to show market value. An assessor's unconfirmed valuation based on estimated replacement cost less depreciation could not stand alone because of uncontroverted evidence of actual costs of recent construction. Rosen v. Milwaukee, 72 Wis. 2d 653 , 242 N.W.2d 681 (1976). When there are no actual sales, cost, depreciation, replacement value, income, industrial conditions, location and occupancy, sales of like property, book value, insurance carried, value asserted in a prospectus, and appraisals are all relevant to determination of market value for assessment purposes. Mitchell Aero, Inc. v. Milwaukee Board of Review, 74 Wis. 2d 268 , 246 N.W.2d 521 (1976). District-wide use of comparative sales statistics to determine annual percentage increases of assessments was invalid under sub. (1). Kaskin v. Board of Review, 91 Wis. 2d 272 , 282 N.W.2d 620 (Ct. App. 1979). See also Lloyd v. Board of Review of City of Stoughton, 179 Wis. 2d 33 , 505 N.W.2d 465 (Ct. App. 1993). An assessor erred in failing to consider disadvantages and liabilities that affect the fair market value of dams. Wisconsin Edison Corp. v. Robertson, 99 Wis. 2d 561 , 299 N.W.2d 626 (Ct. App. 1980). The lease of comparable property constituted the “best information" regarding fair market value of leasehold improvements. Keane v. Bd. of Review, 99 Wis. 2d 584 , 299 N.W.2d 638 (Ct. App. 1980). Sub. (1) requires the use of a cash equivalency adjustment in assessing property based upon the sale of comparable properties. Flint v. Kenosha County Rev. Bd. 126 Wis. 2d 152 , 376 N.W.2d 364 (Ct. App. 1985). An assessment largely based upon consideration of equalized value was invalid. The court erred by remanding with the requirement that a new assessment consider the actual subsequent sale of the subject property. Kesselman v. Sturtevant, 133 Wis. 2d 122 , 394 N.W.2d 745 (Ct. App. 1986). The board of review erred as a matter of law by basing an assessment on “market" rental income when there was a recent arms-length sale of the property. Darcel v. Manitowoc Review Board, 137 Wis. 2d 623 , 405 N.W.2d 344 (1987). In determining market value under sub. (1), the board of review must determine whether financing arrangements between the seller and buyer affected the sale price; sub. (1) prohibits assessment exceeding market value. Flood v. Lomira Board of Review, 153 Wis. 2d 428 , 451 N.W.2d 422 (1990). Factors applicable to the assessment of commercial property following its sale are discussed. State v. Greendale Board of Review, 164 Wis. 2d 31 , 473 N.W.2d 554 (Ct. App. 1991). Section 70.32 establishes a unitary taxing scheme; mineral rights are taxed as an element of the real estate and not separately. Cornell University v. Rusk County, 166 Wis. 2d 811 , 481 N.W.2d 485 (Ct. App. 1992). The capitalization of income method, based on estimated market rents rather than on actual rent, was an improper method of assessing subsidized rental property. Metro. Holding v. Milwaukee Review Bd. 173 Wis. 2d 626 , 495 N.W.2d 314 (1993). Compliance with the s. 73.03 (2a) assessment manual is not a defense when the method of assessment violates s. 70.32 (1). Metropolitan Holding Co. v. Milwaukee Board of Review, 173 Wis. 2d 626 , 495 N.W.2d 314 (1993). When an assessor disavows the correctness of a valuation of comparable property shown on the tax roll, the burden is on the assessor to explain why the assessment is incorrect. Brighton Square Co. v. Madison, 178 Wis. 2d 577 , 504 N.W.2d 436 (Ct. App. 1993). A taxpayer challenging an assessment has the burden of proving that a sale was an arm's-length transaction. The taxpayer has the burden of proof on each assessment manual condition that must be met. Doneff v. Review Board of Two Rivers, 184 Wis. 2d 203 , 516 N.W.2d 383 (1994). The use of owner-operator income to value property is allowed if the net income reflects the property's chief source of value, the income is produced without skill of the owner, or the owner's skill and labor are factored out and other valuation approaches are considered. Waste Management v. Kenosha County Board of Review, 184 Wis. 2d 541 , 516 N.W.2d 695 (1994). There is no bright line rule for the number of comparable properties that must be shown to prove that the rule of uniformity is being violated. Assessments that are discriminatory and made based on arbitrary and improper considerations cannot stand. Levine v. Fox Point Board of Review, 191 Wis. 2d 363 , 528 N.W.2d 424 (1995). Property that is encumbered by a bundle of rights must be appraised at its value using the current value of that bundle of rights. City of West Bend v. Continental IV Fund, 193 Wis. 2d 481 , 535 N.W.2d 24 (Ct. App. 1995). Real property shall be valued based on the best information available. The best information is a recent arms-length sale of the property, followed by recent sales of comparable property. If either of those are not available the assessor may look to all factors that collectively have a bearing on the value of the property. Campbell v. Town of Delavan, 210 Wis. 2d 239 , 565 N.W.2d 209 (Ct. App. 1997), 96-1291 . Equalized value is not a measure of fair market value of individual properties; it is improper for an assessor to take it into account in valuing property. Noah's Ark Family Park v. Village of Lake Delton, 210 Wis. 2d 301 , 565 N.W.2d 230 (Ct. App. 1997), 96-1074 . Affirmed. 216 Wis. 2d 387 , 573 N.W.2d 852 (1998), 96-1074 . For purposes of the uniformity clause, there is only one class of property. The burden of taxation must be borne as nearly as practicable among all property, based on value. Compliance with the requirement of s. 70.05 (5) that property be assessed at fair value at least once every 5 years is not a substitute for compliance with the uniformity clause and sub. (1). Approving an increased assessment for only one property despite evidence that it and other properties had recent sales at a price above prior assessments violated the law, and its approval by the board of review was arbitrary. Noah's Ark Family Park v. Village of Lake Delton, 210 Wis. 2d 301 , 565 N.W.2d 230 (Ct. App. 1997), 96-1074 . Affirmed. 216 Wis. 2d 387 , 573 N.W.2d 852 (1998), 96-1074 . It was improper to rely solely on insurance replacement value to set the valuation of low income apartments encumbered with income and rental restrictions, although it is a relevant factor. Walworth Affordable Housing, LLC v. Village of Walworth, 229 Wis. 2d 797 , 601 N.W.2d 325 (Ct. App. 1999), 98-2535 . Income that is attributable to land, rather than personal to the owner, is inextricably intertwined with the land and is transferable to future owners. This income may be included in the land's assessment because it appertains to the land. Income from managing separate off-site property may be inextricably intertwined with land and subject to assessment if the income is generated primarily on the assessed property itself. ABKA Ltd. v. Fontana-On-Geneva-Lake, 231 Wis. 2d 328 , 603 N.W.2d 217 (1999), 98-0851 . The requirement to use the “best information" does not require that an assessor use actual figures in the absence of a sale. An assessor acted properly in using estimated expense figures when actual figures did not reflect regular expenses. ABKA Ltd. v. Fontana-On-Geneva-Lake, 231 Wis. 2d 328 , 603 N.W.2d 217 (1999), 98-0851 . It is clear from the Assessor's Manual that assessors should consider many market factors from a variety of sources when gathering and applying comparable sales information. Even sales prices of similar properties need some adjustment in order to arrive at an estimate of value for a different property. Joyce v. Town of Tainter, 2000 WI App 15 , 232 Wis. 2d 349 , 605 N.W.2d 284 , 99-0324 . An assessor cannot be free to choose between the mortgage subsidy rate and the mortgage market rate when using the income approach to valuing federally subsidized housing. If the use of a market rate was proper in City of Bloomer , the use of a subsidized interest rate cannot be. Mineral Point Valley Limited Partnership v. City of Mineral Point, 2004 WI App 158 , 275 Wis. 2d 784 , 686 N.W.2d 697 , 03-1857 When valuing subsidized housing, assessors are required to consider the effects the property's restrictions have on value. Bloomer Housing Limited Partnership v. City of Bloomer, 2002 WI App 252 , 257 Wis. 2d 883 , 653 N.W.2d 309 , 01-3495 . See also Northland Whitehall Apartments Limited Partnership v. City of Whitehall, 2004 WI App 60 , 290 Wis. 2d 488 , 713 N.W.2d 646 , 04-2941 . When a property carries with it a bundle of rights, an assessment must be based on the property at its value using the current value of that bundle of rights. A buyer necessarily acquires the right to the rents guaranteed in long-term leases. The goal of assessment is to ascertain what an investor would pay for the property, and contract rents, not market rents, whether above or below market rent, are the clearest indicator of what the investor would pay. Walgreen Co. v. City of Madison, 2007 WI App 153 , 303 Wis. 2d 620 , 735 N.W.2d 543 , 06-1859 . A property tax assessment of retail property leased at above-market rent values should be based on market rents and not on the above-market rental terms of the actual lease. Walgreen Co. v. City of Madison, 2008 WI 80 , 311 Wis. 2d 158 , 752 N.W.2d 687 , 06-1859 . When an assessor only after looking at prevailing market conditions and all variables determined that the market for lakefront property had grown so strong that factors other than beach length and beach quality were being ignored by the marketplace, the approach was not formulaic and is not in violation of Campbell . Anic v. Board of Review of the Town of Wilson, 2008 WI App 71 , 311 Wis. 2d 701 , 751 N.W.2d 870 , 07-0761 . An assessment based on a Department of Revenue analysis of the sale of a mining company that owned the land was not based upon a recent arm's-length sale of the property. A value derived by analyzing a complex corporate transaction involving the sale of a variety of assets, tangible and intangible, independent and interdependent, is not equivalent to the price obtained in a sale of one component of that transaction. Forest County Potawatomi Community v. Township of Lincoln, 2008 WI App 156 , 314 Wis. 2d 363 , 761 N.W.2d 31 , 07-2523 . The Assessment Manual and case law set forth a 3-tier system for determining the fair market value of property. A recent arm's-length sale of the property is the best evidence of value, and is the basis for an assessment under tier one. If there has been no recent sale, an assessor must consider sales of reasonably comparable properties, which is the tier 2 approach. In the absence of comparable sales data, the assessor determines the value under tier 3, which permits consideration of all the factors collectively that have a bearing on value of the property in order to determine its fair market value. Nestle USA, Inc. v. DOR, 2009 WI App 159 , 322 Wis. 2d 156 , 776 N.W.2d 589 , 08-0322 . Affirmed. Nestle USA, Inc. v. DOR, 2011 WI 4 , 331 Wis. 2d 256 , 795 N.W.2d 46 , 08-0322 . Absent sufficient proof that no market existed for a property having a specialized use, an assessment under the tier 2 comparable sales approach based on an expanded definition of highest and best use to include a use for which a market exists would be contrary to sub. (1). The taxpayer has the burden of proving the absence of a market for the property with its current specialized use. That there were no known sales of properties put to that special use merely suggests that such properties are rarely bought and sold. It does not necessarily indicate that the taxpayer would be unable to find a buyer who intended to maintain the property as its current use. Nestle USA, Inc. v. DOR, 2009 WI App 159 , 322 Wis. 2d 156 , 776 N.W.2d 589 , 08-0322 . Affirmed. Nestle USA, Inc. v. Wisconsin Department of Revenue, 2011 WI 4 , 331_ Wis. 2d 256, 795 N.W.2d 46 , 08-0322 . When there are no sales of the property itself or of reasonably comparable properties, an assessment cannot be made under a tier one or tier 2 methodology. The assessment is then made using a tier 3 methodology. The cost of replacement approach is the preferred tier 3 method of valuation when, as here, the property has a highly specialized use resulting in there being no comparable properties. Nestle USA, Inc. v. DOR, 2009 WI App 159 , 322 Wis. 2d 156 , 776 N.W.2d 589 , 08-0322 . Affirmed. Nestle USA, Inc. v. Wisconsin Department of Revenue, 2011 WI 4 , 331 Wis. 2d 256 , 795 N.W.2d 46 , 08-0322 . In situations when it has been determined that there is no potential market for the subject property, it is contrary to sub. (1) to conclude that the highest and best use of the property should remain the same. That was not the case when there was at least a limited market for powdered infant formula production facilities. Nestle USA, Inc. v. Wisconsin Department of Revenue, 2011 WI 4 , 331 Wis. 2d 256 , 795 N.W.2d 46 , 08-0322 . Reassessing one property at a significantly higher rate than comparable properties using a different methodology and then declining to reassess the comparable properties by that methodology violates the uniformity clause. U.S. Oil Co., Inc. v. City of Milwaukee, 2011 WI App 4 , 331 Wis. 2d 407 , 794 N.W.2d 904 , 09-2260 . Comparing a taxpayer's appraised value to lower values assigned to a relatively small number of other properties has long been rejected as a claimed violation of the uniformity clause. Lack of uniformity must be established by showing a general undervaluation of properties within a district when the subject property has been assessed at full market value. Great Lakes Quick Lube, LP v. City of Milwaukee, 2011 WI App 7 , 331 Wis. 2d 137 , 794 N.W.2d 510 , 09-2775 . A property's assessed value is based on fair market value but a property's assessed value is not necessarily equal to its fair market value. Assessors must base assessments of real property on the property's fair market value. However, as the plain language of the Property Assessment Manual makes clear, a property's fair market value is not synonymous with its assessed value. In most cases individual property assessments are different than the property's fair market value. Stupar River LLC v. Town of Linwood Board of Review, 2011 WI 82 , 336 Wis. 2d 562 , 800 N.W.2d 468 , 09-0191 . The taxpayer challenging an assessment and classification has the burden of proving at the board hearing that the assessment and classification of property are erroneous; that the taxpayer did not meet his burden of proof; and that the board's determination to maintain the assessment is supported by a reasonable view of the evidence. Sausen v. Town of Black Creek Board of Review, 2014 WI 9 , 352 Wis. 2d 576 , 843 N.W.2d 39 , 10-3015 . Except for sub. (2) (c) 3., every subdivision of sub. (2) (c) uses the verb “means" instead of “includes" when defining a property classification. “Means" clearly limits the classes of property defined in those subdivisions to the specific types of property described therein. If the legislature intended the residential class to be restricted to the type of property described in sub. (2) (c) 3., it would have used the verb “means" instead of “includes." Aside from the property specifically described in sub. (2) (c) 3., any other property included in the residential class must fall within the ordinary meaning of the term “residential." West Capitol, Inc. v. Village of Sister Bay, 2014 WI App 52 , 354 Wis. 2d 130 , 848 N.W.2d 875 , 13-1458 . Nothing in s. 70.10 requires a property to be classified based on its actual use or prevents an assessor from considering a property's most likely use. An owner's subjective expression of intent is not dispositive of a property's most likely use. The Assessment Manual directs assessors to consider whether the property owner's actions are consistent with an intent for residential use, but that is only one of 7 factors the Manual directs assessors to consider. West Capitol, Inc. v. Village of Sister Bay, 2014 WI App 52 , 354 Wis. 2d 130 , 848 N.W.2d 875 , 13-1458 . A property need not be zoned residential in order to be classified as residential for property tax purposes, as long as residential use is likely to be allowed. West Capitol, Inc. v. Village of Sister Bay, 2014 WI App 52 , 354 Wis. 2d 130 , 848 N.W.2d 875 , 13-1458 . Under sub. (2) (c) 4., land is nonproductive when it is neither producing nor capable of productive use. Property that is capable of productive use is not nonproductive and not entitled to the 50-percent assessment reduction under sub. (4). West Capitol, Inc. v. Village of Sister Bay, 2014 WI App 52 , 354 Wis. 2d 130 , 848 N.W.2d 875 , 13-1458 . Taxation of undeveloped real property in Wisconsin. Hack, Sullivan, 1974 WBB No. 1.