Wal-Mart Real Estate Business Trust v. City of Berlin

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.
June 10, 2026
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2025AP256 Cir. Ct. No. 2020CV66

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

WAL-MART REAL ESTATE BUSINESS TRUST,

PLAINTIFF-APPELLANT,

V.

CITY OF BERLIN,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Green Lake County:
MARK T. SLATE, Judge. Affirmed.

Before Gundrum, Grogan, and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Wal-Mart Real Estate Business Trust
(“Wal-Mart”) appeals an order dismissing its complaints that alleged the City of
No. 2025AP256

Berlin’s (“City”) 2020, 2021, and 2022 property tax assessments were excessive
and violated the Uniformity Clause of the Wisconsin Constitution. On appeal,
Wal-Mart argues the circuit court erred by determining Wal-Mart failed to prove
its assessments were excessive and by failing to address Wal-Mart’s uniformity
claims. We affirm.

BACKGROUND

¶2 Wal-Mart owns and operates a retail store with grocery in the City.
As relevant to this appeal, Wal-Mart’s complaints against the City alleged its
property’s 2020, 2021, and 2022 property tax assessments were excessive and
exceeded the property’s fair market value. See WIS. STAT. § 74.37(3)(d)
(2023-24).1 Wal-Mart also alleged the City’s assessments violated the Uniformity
Clause of the Wisconsin Constitution because they were not uniform with the
assessments of other properties in the City. See WIS. CONST. art. VIII, § 1. The
three cases (one for each tax year) were consolidated, and the consolidated case
proceeded to a court trial.

¶3 At trial, Wal-Mart stipulated that the City’s assessments were
entitled to the presumption of correctness. See WIS. STAT. § 70.49(2). The
assessments of Wal-Mart’s property for each tax year at issue were $7,260,000.

¶4 Wal-Mart then called the City’s contracted assessor, Zackery
Zacharias, adversely. Zacharias explained that, for the three tax years at issue, the
City had contracted with his company, Action Appraisers, to “maintain the
assessment roll[.]” This meant the assessor would update property record cards to

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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reflect changes in the property, such as permits or fire damage, and review sales.
The City never contracted with Action Appraisers to perform a revaluation, which
would have entailed performing a valuation of every property in the City’s
taxation district. The City’s last revaluation occurred in 2010, and it was
performed by a different contract assessor, who was unaffiliated with Zacharias’s
company.

¶5 Zacharias testified that for the 2020 and 2021 tax years, his father,
who had since passed away, signed the City’s assessment roll. Zacharias signed
the assessment roll in 2022.

¶6 Based off the property record card, in 2013, Wal-Mart’s property
was assessed at $7,511,400. Zacharias testified it appeared from records that “the
cost approach may have been used” to calculate this initial assessment. However,
Zacharias was unsure because, at that time, the City had a different contract
assessor. Zacharias testified his company used a computer-assisted mass appraisal
program called MarketDrive to maintain the City’s property record cards
electronically and to set assessments. MarketDrive used formulas and models that
were constructed during the City’s 2010 revaluation.

¶7 Wal-Mart’s property assessment remained unchanged from 2013
until 2018. In 2019, Wal-Mart objected to its assessment, and following
discussions between Wal-Mart and Zacharias’s father, the assessment was reduced
to its current value of $7,260,000. The assessment then remained unchanged for
the 2020, 2021, and 2022 tax years.

¶8 When asked why the assessment was reduced in 2019, Zacharias
testified that when Wal-Mart objected to its assessment, it brought an appraisal to
his father’s attention. When asked how the $7,260,000 amount was calculated,

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Zacharias believed, based on notes, that his father “mimick[ed] what was done …
in [Wal-Mart’s] appraisal[,]” and “went and looked at other big box stores and did
the same thing that [Wal-Mart’s] appraiser did by calculating the price per
assessment.”

¶9 The MarketDrive printout for Wal-Mart’s property indicated the
$7,260,000 amount was mathematically calculated by reducing the property’s
improvement value by 4%, which was listed as a “Market adjustment.” Zacharias
conceded that the MarketDrive model for Wal-Mart’s property did not account for
any depreciation to the property. However, Zacharias testified that the model used
data from 2010, and if he were to revalue the property, he would use 2020 cost
data. Zacharias also testified there was not anything from his review of the
assessment file that suggested Wal-Mart’s property assessments were excessive.

¶10 Wal-Mart presented appraiser Matthew Gehrke, MAI, as an expert
witness. Gehrke opined that the value of Wal-Mart’s property for each tax year
was $3,050,000, $3,620,000, and $3,920,000, respectively. Gehrke valued the
property using a tier-2 sales comparison approach. In this approach, Gehrke
selected recent sales of properties that he believed were comparable to Wal-Mart’s
property. He made adjustments to these sale prices to account for his perceived
differences between each property and Wal-Mart’s property. He then used the
adjusted sale prices to estimate a value for Wal-Mart’s property for each tax year
at issue.

¶11 For two of the tax years at issue, Gehrke also performed a tier-3 cost
approach. In this approach, Gehrke determined the replacement cost of the
improvements, estimated and subtracted depreciation, and then determined and

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added a value for the land. He used the values he derived under the cost approach
to check the values he estimated under the sales comparison approach.

¶12 At the conclusion of Wal-Mart’s case-in-chief, the City moved to
dismiss Wal-Mart’s complaints on the basis that Wal-Mart failed to rebut the
presumption of correctness and prove that its assessments were excessive. The
City argued that “regardless of what [the assessor testified], there is no evidence
from him or anybody else that anything that was done in the assessment resulted in
an excessive assessment.” The City also offered various reasons as to why
Gehrke’s valuations did not amount to significant contrary evidence that the
assessments were excessive.

¶13 The circuit court denied the City’s motion. The court explained that
it

certainly … had questions with regards to what
comparables [Gehrke] used. But I believe the fact that
Mr. Zacharias didn’t know what he was doing and
Mr. Gehrke has presented testimony which shows that there
may be excessive assessments with that, the Court believes
that a reasonable view of the evidence does show the
plaintiff may have met the burden of proof on the claims as
made in their complaint, and the Court will deny that
motion.

¶14 The City then presented the expert testimony of Dominic Landretti,
MAI, AI-GRS. Landretti opined the fair market value of Wal-Mart’s property for
the tax years at issue was $10,900,000, $10,900,000, and $11,500,000,
respectively. Similar to Gehrke, Landretti valued the property using a tier-2 sales
comparison approach. Also similar to Gehrke, Landretti selected recent sales of
properties that he believed were comparable to Wal-Mart’s property. Landretti
made adjustments to the sale prices of these properties based on his perceived
differences and then used the adjusted sale prices to estimate a value for

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Wal-Mart’s property for each tax year at issue. Landretti also checked his values
using a tier-3 cost approach, where again, similar to Gehrke, Landretti estimated
the replacement cost of the building, estimated and subtracted depreciation, and
determined and added in the land value. Landretti also did a tier-3 income
approach to value.

¶15 Broadly, in the tier-2 sales comparison approach, a significant
difference between Landretti’s and Gehrke’s sales comparison approaches related
to each appraiser’s selection of comparable sales. In the tier-3 cost approach, a
significant difference between Landretti’s and Gehrke’s cost approaches was
Gehrke’s 60% deduction for functional and economic obsolescence.

¶16 In rebuttal, Wal-Mart called Stephen D. Roach, MAI, SRA, AI-GRS,
CDEI. Roach offered various criticisms of Landretti’s valuations.

¶17 Following post-trial briefs, the circuit court issued a written decision
dismissing Wal-Mart’s complaints. The court found that Wal-Mart failed to rebut
the presumption of correctness and establish that its assessments were excessive.
The court first found that “Walmart failed to demonstrate that the City’s assessors
improperly applied Wisconsin law in maintaining the assessments through mass
appraisal, rather than single property appraisal.” The court rejected Wal-Mart’s
argument that its assessments were contrary to Wisconsin assessment law because
the City had not done a revaluation since 2010. Although the court had “great
concern” with Zacharias’s testimony and, on certain topics, found him “ignorant,”
the court nevertheless found him credible. The court observed that “Zacharias[]
specifically testified that, while he agreed a revaluation was recommended to the
City, nothing from his review of the assessment file suggested that not doing the
revaluation led to this specific assessment being excessive.”

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¶18 The circuit court also found that Wal-Mart failed to prove its
property’s assessments were excessive. The court made significant credibility
determinations concluding that Gehrke was not credible, his testimony was
“evasive and contradictory[,]” and Gehrke was a quintessential “hired gun” who
was “willing to tailor his ‘expert testimony’ to the highest bidder[,]” which in this
case was Wal-Mart.

¶19 As for Gehrke’s valuations, the circuit court had concerns with both
Gehrke’s sales comparison approach and his cost approach. Broadly, in Gehrke’s
sales comparison approach, the court observed that Wal-Mart’s property was a
stabilized, operating retail store. However, Gehrke’s selected comparables were
largely vacant properties. This was problematic to the court because Gehrke then
compared the sale prices of these vacant properties to a hypothetical sale of an
operating retail property without making any adjustment for the vacancy status.

¶20 The circuit court was also concerned that Gehrke, when making his
selection of which sales to use to compare to Wal-Mart’s property, “simply
ignored leased fee sales” of “other discount stores with grocery” because Gehrke
“said that the subject property [wa]s not leased.” However, the court observed
that Gehrke could point to nothing in Wisconsin assessment law that categorially
excluded the use of leased-fee sales in a sales comparison approach. Rather, the
court observed that Gehrke later admitted, leased-fee sales could be used if an
appraiser confirmed the details of the lease.

¶21 To further establish the circuit court’s concerns with Gehrke’s
selected comparables, the court then devoted five pages in its written decision to
detail its specific concern with each comparable sale Gehrke used in his sales
comparison approach. Some of the court’s criticisms were that the sales did not

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meet the criteria of a market-value sale (for example, one property sold at auction,
other properties were part of a real estate investment trust transaction, two
properties were not exposed to the market for long enough, one property Gehrke
admitted was “dark” and should not have been used but yet was used in two
valuation years, one store was vacant for four years and would be considered
“dark[,]” etc.). The court also observed that some of the selected comparables
were not comparable to Wal-Mart (for example, the properties were vacant, one
property was sold to be transitioned to a manufacturing property, one property was
sold for governmental use, one property had a deed restriction forbidding the use
of a store like the subject property, etc.).

¶22 After outlining each concern, the circuit court stated its “biggest
concern” was that Gehrke made no adjustments in the sale prices of these
comparables to account for the differences highlighted by the court. Gehrke
simply compared these sales to a hypothetical sale of Wal-Mart’s property. The
court concluded:

Since Walmart is the plaintiff, they have the burden to
show by significant contrary evidence that the assessments
were excessive. They have shown little evidence that the
assessments were excessive. Because of this they have
failed their burden.

¶23 As for Gehrke’s cost approach, the circuit court stated that because
of the tier-2 sales comparison analysis, it did not need to discuss Gehrke’s cost
approach; however, “it w[ould] do so for the purpose of addressing his
unsupported testimony.” At trial, Gehrke testified his “cost approach [wa]s
developed … as a test of reasonableness to the sales comparison approach[.]” For
tax year 2021, Gehrke’s cost approach value was $3,680,000 (compared to his
sales comparison approach value of $3,620,000), and for tax year 2022, Gehrke’s

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cost approach value was $4,150,000 (compared to his sales comparison approach
value of $3,920,000).

¶24 To reach his cost approach value, Gehrke made a 60% deduction in
the property’s improvement value for functional and external obsolescence. In the
circuit court’s written decision, when discussing this significant deduction, the
court pointed to its trial exchange with Gehrke where Gehrke told the court that if
a brand-new property was built for $10 million and there was no physical
depreciation (because the property was new), Gehrke would nevertheless deduct
60% for functional and external obsolescence and opine the brand-new property
could only be sold for $4 million.2 The court found that Gehrke did not have an
adequate explanation for this deduction.

2
THE COURT: Just so I am clear, so if Target builds a store
across the road from there for $10 million, you believe the
assessment should be … 4 million because there is no
depreciation for the building costs because it is the first year they
open their doors, but you are going to take a 60 percent cutoff
right off the top?

[Gehrke]: If there was -- if there was -- if I determined that
there was not sufficient, you know, demand for that, then that
would be what I am saying.

THE COURT: Okay. But that’s your professional conclusion
is that there is a 60 percent decrease in Berlin right now because
that’s what you did to the current store?

[Gehrke]: Right.

THE COURT: So if Target opens up a store, it costs
$10 million to build, the assessment should be 4 million?

[Gehrke]: Yes.

THE COURT: Okay.

(continued)

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¶25 The circuit court’s decision also considered the remaining witnesses,
Landretti and Roach. As for Landretti, the court believed Landretti did not do as
thorough an investigation as Gehrke, but the court did not believe Landretti
“tailor[ed] his testimony to either party. … [and] [t]he [c]ourt found his testimony
credible and consistent with Wisconsin law.” The court observed that Landretti
used leased-fee sales as comparables in his sales comparison approach and
testified he verified the leases for these properties to compare the rent amount to
market. The court also found that Landretti’s cost approach and income approach
“made sense” to the court. The court observed that, in his cost approach,
“Landretti did not use the 60% across the board functional and economic
obsolescence [deduction] that Mr. Gehrke did.”

¶26 As for Roach, the circuit court found that “Roach’s testimony was
primarily brought forth to impugn the testimony of Mr. Landretti.” However, the
court gave Roach’s testimony minimal weight because “Roach had not been asked
to update his reports subsequent to the Lowe’s[3] decision being released to discuss
how the Wisconsin Supreme Court decision impact[ed] his opinions.” The court
found that “Roach’s criticisms of Mr. Landretti’s report fail[ed] to cast a shadow
over Mr. Landretti’s report or his credibility.”

¶27 The circuit court then iterated its determination that Wal-Mart failed
to establish that its 2020, 2021, and 2022 assessments were excessive. The court

[Gehrke]: And by assessment, I mean, I am talking about the
value, what the real estate could sell for.

THE COURT: Thank you.
3
Lowe’s Home Centers, LLC v. City of Delavan, 2023 WI 8, 405 Wis. 2d 616, 985
N.W.2d 69.

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dismissed Wal-Mart’s complaints. Wal-Mart appeals. Additional facts are
included below.

DISCUSSION

¶28 On appeal, Wal-Mart argues the circuit court erred by dismissing its
complaints against the City. It asserts that it rebutted the presumption and
introduced significant contrary evidence through Gehrke’s testimony that
Wal-Mart’s assessments exceeded the property’s fair market value. Wal-Mart also
argues that the court erroneously failed to address its claim that the assessments
violated the Uniformity Clause of the Wisconsin Constitution.

I. Excessive assessment

¶29 We begin with Wal-Mart’s assertion that it established at trial that its
assessments were excessive. To do so, we first provide some necessary
background to Wisconsin assessment law. “Valuation of real estate for tax
assessment purposes is governed by WIS. STAT. § 70.32.” Lowe’s Home Centers,
LLC v. City of Delavan, 2023 WI 8, ¶27, 405 Wis. 2d 616, 985 N.W.2d 69. A
property is supposed to be assessed at “full value” in accordance with the
Wisconsin Property Assessment Manual (“WPAM”).4 Sec. 70.32(1). The courts
have interpreted “‘full value’ to mean market value.” Flood v. Board of Rev., 153
Wis. 2d 428, 435, 451 N.W.2d 422 (1990).

4
The Wisconsin Property Assessment Manual (“WPAM”) is published annually by the
Department of Revenue. WIS. STAT. § 73.03(2a). The Department must prepare and publish the
WPAM in electronic form and on the Internet. Id.

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¶30 “[M]arket value is the most probable price which a property should
bring in a competitive and open market under all conditions requisite to a fair sale,
the buyer and seller each acting prudently and knowledgeably, and assuming the
price is not affected by undue stimulus.” 1 Wisconsin Property Assessment
Manual 9-7 (2020).5 There are five elements of a “market value” sale:

1. Buyer and seller are typically motivated;

2. Both parties are well informed or well advised, and
acting in what they consider their own best interests;

3. A reasonable time is allowed for exposure in the
open market;

4. Payment is made in terms of cash in U.S. dollars or
in terms of financial arrangements comparable
thereto; and

5. The price represents the normal consideration for the
property sold unaffected by special or creative
financing or sales concessions granted by anyone
associated with the sale[.]

Id.

¶31 In setting a property’s assessment, an assessor can use mass
appraisal or single property appraisal. Metropolitan Assocs. v. City of
Milwaukee, 2018 WI 4, ¶28, 379 Wis. 2d 141, 905 N.W.2d 784. “Mass appraisal
is the systematic appraisal of groups of properties, as of a given date, using
standardized procedures and statistical testing.” Id., ¶29 (citation omitted). “Mass
appraisal stands in contrast to single property appraisal, which is the valuation of a
single particular property as of a given date.” Id., ¶30.

5
Consistent with the parties, all citations to the WPAM will be to the 2020 version
unless otherwise indicated. That version is available at
https://www.revenue.wi.gov/documents/wpam20.pdf (last visited 6/3/2026).

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¶32 The supreme court has “interpreted WIS. STAT. § 70.32(1) to set
forth a hierarchical valuation methodology for single-property appraisal.”
Metropolitan, 379, Wis. 2d 141, ¶31 (internal footnote omitted). The best
information of a property’s fair market value, tier-1 evidence, is a market-value
sale of the subject property. Id., ¶32.

¶33 If there is no recent sale of the subject property, the next best
evidence of a property’s value, tier-2 evidence, is recent, market-value sales of
reasonably comparable properties. Id., ¶33. This valuation method is known as
the sales comparison approach. Id. “When both tier 1 and tier 2 are unavailable,
an assessor then moves to tier 3.” Id., ¶34. “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.’” Id. (citation omitted). The cost
approach and the income approach are both tier-3 valuation approaches.

¶34 When the assessor places a property’s assessment on the yearly
assessment roll and certifies that the property valuation has “been made with the
best information available that can practicably be obtained using professionally
accepted appraisal practices,”6 a presumption of correctness attaches to the
assessor’s assessment. WIS. STAT. § 70.49(2); see also Lowe’s, 405 Wis. 2d 616,
¶35. The assessor’s presumption of correctness “may be rebutted if the assessor
did not correctly apply the [WPAM] and Wisconsin statutes or if a challenger
presents significant contrary evidence.” Lowe’s, 405 Wis. 2d 616, ¶32.

6
The assessor’s affidavit must be on a form prescribed by the department of revenue.
WIS. STAT. § 70.49(1). This quoted language reflects the language in the department of revenue’s
form for the tax years at issue in this case.

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¶35 On appeal, Wal-Mart first argues that it rebutted the presumption of
correctness afforded to the City’s assessments because the City assessor did not set
the disputed assessment according to Wisconsin assessment law. Wal-Mart argues
that the Record reflects the assessor did not know how the assessments were set,
the assessor did not properly rely on the three-tiered assessment methodology to
set the assessments, the assessed values did not account for depreciation, and the
assessments went unchanged for years. Wal-Mart also emphasizes the circuit
court’s determination that it had “great concern about the City’s assessor[.]”

¶36 For purposes of this case, we assume without deciding that
Wal-Mart established the City did not set the disputed assessments in conformance
with Wisconsin assessment law. As such, we need not address Wal-Mart’s
arguments relating to how often taxation districts must conduct revaluations and
its other concerns with Zacharias’s testimony. See State v. Blalock, 150 Wis. 2d
688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases decided on narrowest possible
ground). However, this assumption does not, by itself, establish that Wal-Mart’s
assessments were excessive and that Wal-Mart is entitled to a partial refund of
property taxes previously paid. See WIS. STAT. § 74.37(1).

¶37 In an excessive assessment action, Wal-Mart bears the burden of
proving that the disputed assessments exceeded the property’s fair market value.
See Lowe’s, 405 Wis. 2d 616, ¶37 (“If, in the context of a WIS. STAT. § 74.37
action, the failure to follow the [WPAM] results in an excessive assessment, then
the presumption is overcome[.]”); Metropolitan, 379 Wis. 2d 141, ¶40 (“The
question on appeal in a … § 74.37 action is not whether the initial assessment was
incorrect, but whether it was excessive.”); Clear Channel Outdoor, Inc. v. City of
Milwaukee, 2017 WI App 15, ¶4, 374 Wis. 2d 348, 355, 893 N.W.2d 24 (“The

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burden is on [the taxpayer] to prove by clear and satisfactory evidence that the
assessments here are in error.”).

¶38 We therefore turn to whether Wal-Mart established its 2020, 2021,
and 2022 assessments exceeded the property’s fair market value. In our review,
“we interpret and apply WIS. STAT. § 70.32 to determine whether the appraisal at
issue followed the statutory directives.” Metropolitan, 379 Wis. 2d 141, ¶24.
“Statutory interpretation and application present questions of law that this court
reviews independently of the determinations rendered by the circuit court[.]” Id.

¶39 “We do, however, defer to a circuit court’s findings of fact.” Id.,
¶25. “Factual findings made by the circuit court will not be disturbed unless they
are clearly erroneous.” Id. “It is within the province of the factfinder to determine
the weight and credibility of expert witnesses’ opinions.” Id.

¶40 At this point, we pause to discuss a tier-2 sales comparison
approach. This valuation method “is ‘based on the premise that similar properties
will sell for similar prices on the open market.’” Lowe’s, 405 Wis. 2d 616, ¶42
(citation omitted). “The sales approach relies on recent market sales of similar
properties to predict the probable market price of the subject.” 1 Wisconsin
Property Assessment Manual 9-22. “Comparable sales refer to properties that are
similar to the subject property in age, condition, use, type of construction,
location, design, physical features and economic characteristics.” Lowe’s, 405
Wis. 2d 616, ¶43 (emphasis added; citation omitted). “The more similar the sold
property is to the subject, the more reliable is the sale price as an indicator of the
value of the subject property.” Id. (citation omitted). “Where sales differ from the
subject, [the sale prices] are adjusted up or down in an attempt to reflect how the
market responds to the various differences.” 1 Wisconsin Property Assessment

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Manual 9-22. “The amount of adjustment must be reflected in sales data and not
just a ‘guess’ on the part of the assessor.” Id.

¶41 Further,

[t]he assessor should avoid using sales of improved
properties that are vacant (“dark”) or distressed as
comparable sales unless the subject property is similarly
dark or distressed. A vacant store is considered dark when
it is vacant beyond the normal time period for that
commercial real estate marketplace and can vary from one
municipality to another. A recent court case stated
distressed properties are not seen as meaningfully
comparable to operating properties.

Lowe’s, 405 Wis. 2d 616, ¶44 (citing 1 Wisconsin Property Assessment Manual
9-12 (2016), currently 13-12 (2020)); see also Bonstores Realty One, LLC v. City
of Wauwatosa, 2013 WI App 131, ¶¶21-22, 34-35, 351 Wis. 2d 439, 839 N.W.2d
893.

¶42 On appeal, Wal-Mart argues “the circuit court erred by rejecting all
of Walmart’s comparable sales[.]” It first asserts that “[n]one of [the] comparable
sales [selected by Gehrke] were ‘dark’ or distressed[.]” In its decision, the court
found that two of Gehrke’s sales were “dark” sales. The first one, a sale of a
former JCPenney, was used in two of Gehrke’s valuations. At trial, Gehrke
explicitly testified that this sale “was a dark sale” and should not have been used. 7

7
The following exchange occurred at trial:

[The City’s Counsel]: And so is it your opinion that after the
Lowe’s decision you should no longer have included that
JCPenney, former JCPenney sale as part of the 2020 and 2021
reports?

(continued)

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Given Gehrke’s admission, the court did not err by characterizing this sale as
“dark.” See Metropolitan, 379 Wis. 2d 141, ¶24.

¶43 The second sale was a sale of a former Shopko. Gehrke also used
this sale as a comparable in his valuation for two tax years. At trial, when
discussing “dark” stores, Gehrke testified “a dark store is three years from the time
that the tenant vacates it[.]” See Lowe’s, 405 Wis. 2d 616, ¶46 (“[A] vacant store
is considered dark when it is vacant beyond the normal time period for that
commercial real estate marketplace and can vary from one municipality to
another.” (citation omitted)). Gehrke, however, testified that this former Shopko
property sat vacant for almost four years from the time that Shopko left until the
sale. Given Gehrke’s testimony, we cannot conclude the circuit court’s
determination that this property “was vacant for almost 4 years, moving it into a
dark store sale” was clearly erroneous. See Metropolitan, 379 Wis. 2d 141, ¶24.

¶44 Wal-Mart next argues the circuit court’s concern that Gehrke used
sales of vacant stores to compare to Wal-Mart’s operating retail store was
erroneous. Wal-Mart argues that by being concerned about vacancy/occupancy,
the court impermissibly considered business value as opposed to market value.

¶45 However, Wal-Mart’s argument has already been explicitly rejected
by the supreme court in Lowe’s. There, the court stated:

[Gehrke]: Because it would be considered a dark sale.
Everything else that was stated previously with regard to
physical condition, that is still -- would be correct and I still
believe that. But it would be a dark sale because of its length of
vacancy. And given the ruling, it would be disqualified as being
an improved sale because of that later date ruling.

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Lowe’s’ argument misses the mark when it advances that
accounting for the vacant nature of a store necessarily
values the business concern and not just the fee simple
interest in the land. Many factors inform the value of land,
including the land’s viability to house a business. Saying
that land is suitable for a successful business, or that the
land has a track record of housing a successful business,
and assigning a value to that fact is not the same as valuing
the business itself. Generally, a site that can sustain a
business is more valuable than one that cannot.

Lowe’s, 405 Wis. 2d 616, ¶53. Wal-Mart does not explain why it was incorrect for
the circuit court to be concerned that Gehrke generally selected vacant properties
to compare to an operating retail store. Further, given our supreme court’s
reasoning in Lowe’s, we disagree with Wal-Mart that the court’s concern about
vacancy was inappropriate. See id.

¶46 Wal-Mart also argues the circuit court erred by suggesting that
Gehrke should have made adjustments to account for vacancy. It states in
conclusory fashion that “there is no such adjustment available in professionally
accepted appraisal practice.” Wal-Mart cites no assessment law or trial testimony
in support of its assertion. Moreover, in a sales comparison approach,
“[e]conomic characteristics” is one of the elements of comparison that the assessor
should consider when making adjustments. 1 Wisconsin Property Assessment
Manual 9-26; see also Lowe’s, 405 Wis. 2d 616, ¶53. The Lowe’s court also
rejected “the blanket proposition that occupancy or vacancy has no role to play in
valuation[,]” and it noted “[g]enerally, a site that can sustain a business is more
valuable than one that cannot.” Lowe’s, 405 Wis. 2d 616, ¶¶52-53.

¶47 Wal-Mart next argues “[t]he circuit court also erred by requiring an
overly narrow highest and best use for comparable sales.” Presumably, this is a
critique of the court’s concern that Gehrke selected properties to use as
comparable sales that were transitioning from retail use to other uses, such as

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governmental, industrial, or manufacturing. However, Wal-Mart overlooks that its
property does not currently have these uses and it is not transitioning to these uses.
See Nestlé USA, Inc. v. DOR, 2011 WI 4, ¶32, 331 Wis. 2d 256, 795 N.W.2d 46
(“[T]he properties an assessor identifies as ‘reasonably comparable’ to the subject
property for assessment purposes must be reasonably comparable to the subject
property’s highest and best use.”).

¶48 Further, in Lowe’s, 405 Wis. 2d 616, ¶57, the circuit court stated:

The highest and best use of a store in an area that is
conducive to business (and is in fact operating as a
business) is different from the highest and best use of a
property that contains a failed big-box store. Lowe’s’
argument treats these different things alike, which is not the
‘apples to apples’ comparison contemplated in a tier 2
analysis.

Wal-Mart does not explain how the court’s concern regarding Gehrke’s
comparables and their highest and best use is inconsistent or contrary to Lowe’s.

¶49 Wal-Mart then argues that the circuit court erroneously characterized
Gehrke’s testimony regarding why he did not consider any leased-fee sales as
equivocal. Wal-Mart offers one explanation that Gehrke gave the court—that he
did not consider leased-fee sales because he believed the leases would affect the
sale price. However, Wal-Mart overlooks that Gehrke initially testified that he did
not consider any leased-fee sales because the subject was owner-occupied and had
no lease. We cannot conclude the circuit court’s determination that Gehrke’s
testimony was equivocal was clearly erroneous. See Metropolitan, 379 Wis. 2d
141, ¶24.

¶50 We also observe that Wal-Mart’s appellate brief only addresses a
handful of the court’s concerns with Gehrke’s selection of comparables. We deem

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the circuit court’s remaining concerns with Gehrke’s selected comparables
conceded. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d
97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed
admitted). Further, Wal-Mart also does not address the court’s significant concern
with the 60% deduction Gehrke made in his cost approach, which was used to
check the reasonableness of his sales comparison approach. See id.

¶51 In short, we cannot conclude that the circuit court’s determinations
and critiques of Gehrke’s selection of comparable sales were unreasonable,
contrary to assessment law, or clearly erroneous. We affirm the circuit court’s
determination that Wal-Mart failed to prove that its property’s 2020, 2021, and
2022 assessments exceeded the property’s fair market value.

II. Uniformity violation

¶52 Wal-Mart next argues the circuit court erred because it failed to
specifically address Wal-Mart’s claimed uniformity violation. We agree with
Wal-Mart that the circuit court’s decision did not explicitly address uniformity. In
its post-trial brief, Wal-Mart argued it established a uniformity violation because it
believed it had proven that the City’s assessments did not comply with Wisconsin
assessment law. The court, however, concluded Wal-Mart failed to establish that
the City’s assessments did not comply with Wisconsin assessment law. Based on
the court’s decision, it appears the court tacitly denied Wal-Mart’s uniformity
claim.

¶53 In any event, the Uniformity Clause provides in relevant part: “The
rule of taxation shall be uniform but the legislature may empower cities, villages
or towns to collect and return taxes on real estate located therein by optional
methods.” WIS. CONST. art. VIII, § 1 (emphasis added). This provision has been

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held to “require[] that the method or mode of taxing real property must be applied
uniformly to all classes of property within the tax district.” State ex rel. Levine v.
Board of Rev. of the Vill. of Fox Point, 191 Wis. 2d 363, 371, 528 N.W.2d 424
(1995) (emphasis added).

¶54 For assessment purposes, “Uniformity occurs when all property is
assessed at full value or when all classes of property are assessed at the same
percentage of full value.” 1 Wisconsin Property Assessment Manual 9-9. Critical
for uniformity is “that the tax burden of each dollar’s worth of one sort of property
is liable for exactly the same tax as a dollar’s worth of any other property in that
statutory class.” Id. at 9-10.

¶55 In Levine, the court stated:

Under this principle known as the rule of uniformity,
taxpayers may demonstrate that although their properties
were assessed at fair market value, other comparable
properties were assessed significantly below fair market
value, thus amounting to a discriminatory assessment of
their property.

Levine, 191 Wis. 2d 363, at 371-72 (citation omitted).

¶56 The supreme court has found a constitutional uniformity violation
where there is evidence, for example, that “newly constructed properties were
assessed at fair market value, [while] comparable older properties were assessed at
less than fair market value, resulting in their paying more than their proportionate
amount of property tax.” Id. at 371. In Levine, the assessor “openly admitted that
he did not rely on sale prices to determine the fair market value of certain older
properties. Instead, he discounted the sale prices of the older properties because,
in his opinion, the purchasers were overpaying for these properties.” Id. at 373
(footnote omitted).

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¶57 The supreme court has also found a uniformity violation when “the
assessor[] singl[ed] out [one commercial property] for reassessment based on its
recent sale, while intentionally refusing to reassess other commercial properties
that were recently sold[.]” Noah’s Ark Fam. Park v. Board of Rev. of the Vill. of
Lake Delton, 216 Wis. 2d 387, 388-89, 393, 573 N.W.2d 852 (1998).

¶58 Conversely, the “court has rejected challenges alleging violations of
the rule of uniformity where the claim was based on comparing one taxpayer’s
appraised value to the value assigned to an inadequate number of other properties
in the assessment district.” Allright Props., Inc. v. City of Milwaukee, 2009 WI
App 46, ¶54, 317 Wis. 2d 228, 767 N.W.2d 567.

A taxpayer has no complaint when a valuation which could
ordinarily be obtained therefor at private sale is placed
upon his property, unless there is such a general
undervaluation of the other property of the assessment
district as will result in an excessive tax as to him. Such a
situation is not shown by proof which compares the
valuation of a taxpayer’s property with less than 2 per cent.
of the other property in the assessment district[.]

Walthers v. Jung, 175 Wis. 58, 61, 183 N.W. 986 (1921).8

¶59 On appeal, Wal-Mart argues it has established a uniformity
violation. In support, it argues the City failed to reassess its property for years, did
not set the assessment using a tier-2 sales comparison approach, and did not
deduct depreciation from its assessment. The sole legal authority Wal-Mart cites
in support of its constitutional uniformity violation is a general citation to State

8
The two-percent requirement is not a hard rule. Rather, as the supreme court explained
in State ex rel. Levine v. Board of Review of the Village of Fox Point, 191 Wis. 2d 363, 375-76,
528 N.W.2d 424 (1995), “the two percent figure [was used] simply as a means of underscoring
the inadequacy of the evidence presented by the complaining taxpayer in [Walthers].”

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ex rel. Markarian v. City of Cudahy, 45 Wis. 2d 683, 173 N.W.2d 627 (1970).
Wal-Mart argues “[u]niformity requires all assessments to be completed using the
proper methodology derived from the Markarian hierarchy referenced in the
Manual and the courts.”

¶60 However, Markarian is not a uniformity case,9 does not reference
the uniformity clause, and an assessor’s failure to follow the Markarian hierarchy
is not dispositive of whether a uniformity violation exists. As previously
explained, uniformity is concerned with making sure “that the tax burden of each
dollar’s worth of one sort of property is liable for exactly the same tax as a dollar’s
worth of any other property in that statutory class.” 1 Wisconsin Property
Assessment Manual 9-10. “Uniformity occurs when all property is assessed at full
value or when all classes of property are assessed at the same percentage of full
value.” Id. at 9-9.

¶61 Wal-Mart also argues its assessment was not uniform because “[t]he
subject property was assessed at $93.01/sf while another big box store across the
street was assessed at $57.61/sf.” This fact, however, does not establish a
constitutional uniformity violation. In State ex rel. Algoma Hous. Co. v. Board of
Rev., 166 Wis. 2d 675, 682, 480 N.W.2d 786 (Ct. App. 1991), we specifically
rejected the taxpayer’s argument that it established a uniformity violation by
“compar[ing] the assessment per square foot of its property to the value assigned
per square foot to two allegedly comparable pieces of property.” We stated that to

9
In State ex rel. Markarian v. City of Cudahy, 45 Wis. 2d 683, 687-88, 173 N.W.2d
627 (1970), a landowner alleged his property’s assessment exceeded its fair market value. The
supreme court interpreted WIS. STAT. § 70.32(1) to set forth a hierarchical valuation
methodology. Markarian, 45 Wis. 2d at 686-87.

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establish a uniformity violation, the taxpayer must do more than “compar[e] its
property to two smaller buildings across the street from its property.” Id. at 683.

¶62 We conclude that Wal-Mart has not shown that it established at trial
the existence of a constitutional uniformity violation; therefore, the circuit court
did not err by failing to explicitly address uniformity in its decision.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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