Saint John's Communities, Inc. v. City of Milwaukee

2021 WI APP 77
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2020AP1696

†Petition for Review filed

Complete Title of Case:

SAINT JOHN'S COMMUNITIES, INC.,

PLAINTIFF-RESPONDENT,†

V.

CITY OF MILWAUKEE,

DEFENDANT-APPELLANT.

Opinion Filed: October 5, 2021
Submitted on Briefs: June 9, 2021
Oral Argument:

JUDGES: Brash, C.J., Donald, P.J., and White, J.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Tearman Spencer, city attorney, and Allison N. Flanagan,
assistant city attorney.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Alan Marcuvitz and Andrea Roschke of von Briesen & Roper,
S.C. of Milwaukee.
2021 WI App 77

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 5, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2020AP1696 Cir. Ct. No. 2020CV578

STATE OF WISCONSIN IN COURT OF APPEALS

SAINT JOHN’S COMMUNITIES, INC.,

PLAINTIFF-RESPONDENT,

V.

CITY OF MILWAUKEE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JEFFREY A. CONEN, Judge. Reversed and cause remanded with directions.

Before Brash, C.J., Donald, P.J., and White, J.

¶1 BRASH, C.J. The City of Milwaukee appeals an order granting
summary judgment in favor of Saint John’s Communities, Inc., relating to a property
tax exemption dispute. Saint John’s constructed a new high-rise tower on property
it owns that had previously been granted an exemption. The City assessed property
No. 2020AP1696

tax on the new tower for 2019, on the ground that Saint John’s did not timely submit
a property tax exemption application for the newly constructed tower as required
under the statutes. Saint John’s challenged the assessment of the tax, and the circuit
court agreed with Saint John’s that it was not required to file a new application in
order to continue the property tax exemption that already existed on its property.
The circuit court therefore ordered that the property taxes paid by Saint John’s for
2019 be refunded, with interest.

¶2 We, however, conclude that Saint John’s claim filed with the City was
statutorily deficient, and therefore this action should have been dismissed.
Furthermore, Saint John’s claim of a violation of the uniformity clause of the
Wisconsin Constitution also fails based on that deficiency. Accordingly, we reverse
the order of the circuit court, and remand this matter for the entry of an order
dismissing Saint John’s complaint against the City in its entirety. 1

BACKGROUND

¶3 Saint John’s is a Wisconsin corporation, qualifying as an I.R.C.
§ 501(c)(3) entity. It is the owner of property located on North Prospect Avenue in
Milwaukee, identified by a single tax key number (the “Property”). The Property is
used as an “age restricted continuing care retirement community,” and is licensed
by the Wisconsin Department of Health Services (DHS) pursuant to WIS. STAT.
ch. 50.

We note that Saint John’s has also challenged the amount of the 2019 assessment as
1

excessive, pursuant to WIS. STAT. § 70.47 (2019-20). That is a separate action not included in this
appeal.

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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¶4 According to the president of Saint John’s, Renee Anderson, Saint
John’s applied for, and received, exemption from real estate taxes for the Property
in 2010. Anderson further averred that the Property was designated as fully exempt
by the City from 2010 through 2018. However, the chief assessor for the City, Peter
Bronek, averred that he requested that Saint John’s submit an exemption application
in 2016. That application indicated that the statutory basis for the exemption was
WIS. STAT. § 70.11(4)(a)1., which allows for exemption from real estate taxes on
property that is owned by a nonprofit entity and operated as a facility registered
under ch. 50, “including benevolent nursing homes[.]” See § 70.11(4)(a)1. Bronek
determined at that time that the Property continued to qualify for exemption.

¶5 In 2018, Saint John’s began constructing a twenty-one story
residential tower on the Property in an area that had previously been used as a
parking lot. Construction was ongoing for most of 2019, with occupancy set for
January 2020. At that point, residents would be transferred from the old buildings,
which would then be demolished.

¶6 In September 2019, the City Assessor’s office contacted Saint John’s
to inquire about the new tower on the Property, and requested that Saint John’s
complete a property exemption application for the new tower indicating why it
qualified for exemption. Saint John’s completed the application for the new tower
in September 2019.

¶7 As explained by Bronek in his affidavit, all property is assessed as of
January 1 of the taxable year, see WIS. STAT. § 70.10, and a property owner seeking
exemption must submit an exemption application by March 1 of the taxable year,
see WIS. STAT. § 70.11. However, if a property “was exempt for the previous year
and its use, occupancy or ownership did not change in a way that makes it taxable,”

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it will remain exempt without a new application being submitted. Id. On the other
hand, “if the property did not exist in the previous year,” an exemption application
is required to be submitted by March 1. Id.

¶8 In reviewing Saint John’s exemption application, Bronek observed
that, in contrast to its 2016 application, Saint John’s indicated in its 2019 application
for the new tower that the statutory basis for exemption was WIS. STAT. § 70.11(4d),
which allows for the exemption of property “owned by a nonprofit entity that is a
benevolent association and used as a retirement home for the aged[.]” See id. This
subsection has different requirements for exemption than those set forth in
§ 70.11(4)(a)1., which Saint John’s had cited in its 2016 application. In particular,
§ 70.11(4d) does not include a requirement for licensure under WIS. STAT. ch. 50,
but it does include limitations relating to the fair market value of the property for
which exemption is being sought. See § 70.11(4d). Bronek further averred that
Saint John’s website included an advertisement for “luxury retirement units” in the
new tower, noting the size of the units, the amenities included, and their location
overlooking Lake Michigan.

¶9 The City determined that the newly constructed tower was a new use
of the Property, and therefore presumed to be taxable, pursuant to WIS. STAT.
§ 70.109. As a result, because Saint John’s did not submit its exemption application
for the 2019 tax year until September—after the March 1 statutory deadline—the
Board of Assessors determined that Saint John’s new tower was taxable for 2019.

¶10 Saint John’s filed a claim with the City on November 8, 2019,
challenging the assessment. The City advised Saint John’s that its claim was
premature, because at that point the City had neither levied nor collected the

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challenged tax from Saint John’s as required under WIS. STAT. § 74.35(2)(a).2 Saint
John’s then filed a second claim on December 5, 2019, which the City advised Saint
John’s was still premature; although the tax had been levied by that time, Saint
John’s had not yet paid it.

¶11 Furthermore, the City noted that even if Saint John’s claim was not
deficient, it had failed to timely file an exemption request by March 1, 2019 for the
new tower, as required under WIS. STAT. § 70.11. Saint John’s argued that a new
exemption application was not required under that statute because the Property had
been exempt from property taxation in 2018, and the occupancy and ownership of
the Property had not changed “in any way that made the Property taxable for
2019[.]” The City ultimately denied Saint John’s claim on January 21, 2020.

¶12 Saint John’s then filed the underlying action on January 22, 2020. The
City filed a motion to dismiss on the grounds that Saint John’s underlying claim
submitted to the City was procedurally deficient, in that such a claim cannot be made
until the purportedly unlawful tax has been timely paid, see WIS. STAT.
§ 74.35(5)(c); Saint John’s did not pay the challenged 2019 taxes until January 22,
2020, when it commenced its action in circuit court.

¶13 Saint John’s, in turn, filed a motion for partial summary judgment. It
again argued that the statutory requirement to file a new tax exemption application
did not apply because the Property was already previously exempt, and there was
no change in the use of the Property as a continuing care retirement facility.

2
Real estate taxes are deemed to be levied when the tax roll is delivered to the treasurer.
See WIS. STAT. § 70.11. The 2019 tax roll for the City was delivered to the City Treasurer on
November 27, 2019.

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¶14 The circuit court denied the City’s motion to dismiss and granted Saint
John’s motion for partial summary judgment. The court rejected the City’s
argument that Saint John’s claim was procedurally deficient pursuant to WIS. STAT.
§ 74.35(5)(c), regarding the requirement for both the levy and collection of the
challenged tax, noting that Saint John’s had timely paid the first installment of its
2019 property taxes on the Property prior to commencing its action with the circuit
court. The court further found that the use of the Property had not changed, and
thus because the Property had previously been exempt, a new exemption application
had not been necessary. Therefore, the court held that the Property was fully exempt
from property taxation for 2019, and ordered that the amount in 2019 tax paid by
Saint John’s be refunded, with interest. This appeal follows.3

DISCUSSION

¶15 Our analysis focuses on the City’s argument that the circuit court erred
in denying its motion to dismiss. The City’s motion to dismiss argued that Saint
John’s had failed to state a claim upon which relief could be granted, due to the
claim’s procedural deficiencies. “The purpose of a motion to dismiss for failure to
state a claim is to test the legal sufficiency of the complaint.” Hermann v. Town of
Delavan, 215 Wis. 2d 370, 378, 572 N.W.2d 855 (1998). “Whether a complaint
properly pleads a cause of action is a question of law” which we review
independently, “without deference to the decisions of the lower court[].” Id.

¶16 The City’s argument is based on the language of the requirements set
forth in WIS. STAT. § 74.35 for the “[r]ecovery of unlawful taxes.” This argument

3
Saint John’s complaint included a claim of due process and equal protection violations
under 42 U.S.C. § 1983. That claim was dismissed by the circuit court after hearing the City’s
motion to dismiss, and Saint John’s has not filed a cross-appeal challenging that decision.

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requires that we conduct a statutory interpretation analysis. “[T]he purpose of
statutory interpretation is to determine what the statute means so that it may be given
its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory interpretation
presents a question of law that this court reviews de novo. DOR v. River City Refuse
Removal, Inc., 2007 WI 27, ¶26, 299 Wis. 2d 561, 729 N.W.2d 396.

¶17 According to WIS. STAT. § 74.35(1), an “unlawful tax” is “a general
property tax with respect to which one or more errors specified in [WIS. STAT.
§] 74.33(1)(a) to (f) were made.” Sec. 74.35(1). One of those specified errors
occurs if the property that was taxed is “exempt by law from taxation.” See
§ 74.33(1)(c). Upon the discovery of such an error, this subsection provides “[a]fter
the tax roll has been delivered to the treasurer of the taxation district[,] … the
governing body of the taxation district may refund or rescind in whole or in part any
general property tax shown in the tax roll, including agreed-upon interest[.]”
Sec. 74.33(1).

¶18 However, WIS. STAT. § 74.35 is the “exclusive procedure” for making
a claim that a property is exempt; a taxpayer cannot, for example, commence an
action seeking a declaratory judgment based on the language of WIS. STAT. § 74.33
to make such a claim. See § 74.35(2m). Furthermore, § 74.35 specifies that an
exemption claim is against the taxation district: “[a] person aggrieved by the levy
and collection of an unlawful tax assessed against his or her property may file a
claim to recover the unlawful tax against the taxation district which collected the
tax.” Sec. 74.35(2)(a) (emphasis added).

¶19 The City’s argument focuses on the language of that subsection;
specifically, that a taxpayer making a claim is “aggrieved” when there has been “the

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levy and collection of an unlawful tax” by the taxation district. Id. (emphasis
added). The City points out that it is undisputed that Saint John’s filed its claim
with the City in November 2019, and then again in December 2019; that the claim
was disallowed by the City on January 21, 2020; and that Saint John’s did not pay
its first installment of the challenged tax until January 22, 2020—the day that it
commenced its action with the circuit court. In other words, there had been no
collection of the challenged tax at the time that Saint John’s filed either of its claims
with the City.

¶20 In its decision denying the City’s motion to dismiss, the circuit court
found that Saint John’s had “timely paid authorized installment payments of the tax
at issue, and such payment was made at the same time the claim was filed.”
However, this conclusion does not comport with the requirements of WIS. STAT.
§ 74.35(2)(a), which references the claim being made “against the taxation district
which collected the tax,” and not the action that is commenced in circuit court. Id.
(emphasis added).

¶21 “The aim of statutory construction is to determine the legislature’s
intent.” Fond Du Lac Cnty. v. Town of Rosendale, 149 Wis. 2d 326, 332, 440
N.W.2d 818 (Ct. App. 1989). “This intent is primarily deduced from the language
which the legislature has chosen to use.” Id. In WIS. STAT. § 74.35(2)(a), the
legislature chose language that requires all claims regarding the recovery of taxes
on an allegedly exempt property to be filed against the taxation district by the
taxpayer who was aggrieved by the levy and collection of the challenged tax.
“Statutory language is read where possible to give reasonable effect to every word,
in order to avoid surplusage.” State ex rel. Kalal, 271 Wis. 2d 633, ¶46. The
language of the statute clearly anticipates a claim being filed with the taxation

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district after the taxpayer has paid the challenged tax.4 An interpretation of
§ 74.35(2)(a) as suggested by Saint John’s would render portions of the statute
surplusage.

¶22 Therefore, based on our interpretation of the relevant statutes and case
law, the circuit court’s denial of the City’s motion to dismiss was based on an
erroneous interpretation of the law.

¶23 Nevertheless, Saint John’s argues that its taxes were collected because
they paid all installments in a timely manner. Saint John’s points to WIS. STAT.
§ 74.35(5)(c), which provides, “[n]o claim may be filed or maintained under this
section unless the tax for which the claim is filed, or any authorized installment
payment of the tax, is timely paid[.]” Saint John’s asserts that a timely payment is
one made by January 31, see WIS. STAT. §§ 74.11-74.12, and thus interpreting
§ 74.35(2)(a) to require payment prior to filing a claim would mean that the taxpayer
would have to pay the tax early. However, § 74.35(5)(a) requires that a claim under
this section must be filed by January 31, which coincides with the date the tax is
due; in other words, the tax could be paid and the claim filed at any time after the
tax is levied until it is due on January 31. Thus, the statutory provisions do not
require early payment of taxes, nor do they preclude early payment, in conjunction
with filing a claim. Therefore, there is no conflict among the subsections of § 74.35
with regard to the timing of filing a claim.

¶24 Additionally, in the City’s letter disallowing Saint John’s claim, it
specifically stated that the claim was being rejected because it was deficient, in that

4
We further note that Saint John’s essentially concedes that it filed its claim with the City
prematurely, in advancing a policy argument that “an early filing is not prejudicial to the City in
any way.”

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it was brought prematurely and not in accordance with the statutory requirements.
Our supreme court has previously held that “if the language of a statute deals with
the commencement of an action, the failure to comply with its provisions before the
suit is brought requires that the complaint be dismissed.” Smith v. Milwaukee
Cnty., 149 Wis. 2d 934, 940, 440 N.W.2d 360 (1989). Thus, the City’s motion to
dismiss Saint John’s complaint, based on its failure to comply with the statutory
requirements, should have been granted.

¶25 A similar problem exists with Saint John’s claim of a violation of the
uniformity clause of the Wisconsin Constitution. In a review of a motion to dismiss
a uniformity clause claim relating to an excessive tax challenge, our supreme court
held that the uniformity clause claim made by the plaintiffs was “inherently” a claim
of excessive assessment, for which there was a statutory scheme that was the
“exclusive means” by which taxpayers could make an excessive tax challenge.
Hermann, 215 Wis. 2d at 378-82. Therefore, because of those statutory
requirements, in order for the plaintiffs’ complaint to be deemed sufficient, it was
“necessary for the taxpayers to allege compliance” with those statutory
requirements in their complaint. Id. at 394. There was no such allegation included
in the complaint in Hermann; as a result, the court determined that there were “no
conditions under which the taxpayers can recover” and, therefore, the court found
that “the taxpayers’ complaint fails to state a cause of action upon which relief can
be granted[.]” Id.

¶26 The same circumstances exist in this case. Pursuant to WIS. STAT.
§ 74.35(2)(a), there are necessary requirements involved in filing a claim asserting
tax exemption, and further, this section is the exclusive means for filing such a
claim. See Sec. 74.35(2m). As we have already discussed, Saint John’s failed to
comply with those requirements by prematurely filing its claim with the City. In

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fact, Saint John’s does not allege in its complaint that it did comply with the
requirements of § 74.35(2)(a); rather, it argues that it was not required to submit a
new exemption application for the new tower. However, the means to challenge the
request by Bronek for a new application—and the subsequent taxation
determination—was to file a claim pursuant to the requirements of § 74.35(2)(a).
Saint John’s failed to do that. Therefore, Saint John’s uniformity clause claim fails.
See Hermann, 215 Wis. 2d at 394.

¶27 In sum, Saint John’s complaint failed to state a claim for which relief
could be granted.5 As a result, the City’s motion to dismiss should have been
granted. Id. at 378. Accordingly, we reverse the order of the circuit court granting
Saint John’s motion for partial summary judgment ordering a refund of the 2019
taxes with interest, and remand this matter for the entry of an order granting the
City’s motion to dismiss in its entirety.

By the Court.—Order reversed and cause remanded with directions.

5
Because our determination is dispositive of the case, we do not reach the issue of whether
Saint John’s was required to submit a new exemption application. See Barrows v. American Fam.
Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (“An appellate court need not
address every issue raised by the parties when one issue is dispositive.”).

11