Sauk County Citizens for Senior Care, U.A. v. Sauk County

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COURT OF APPEALS DECISION DATED AND FILED
October 15, 2026
Samuel A. Christensen Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
Appeal No. 2025AP1919 STATE OF WISCONSIN
Cir. Ct. No. 2024CV451
IN COURT OF APPEALS DISTRICT IV
SAUK COUNTY CITIZENS FOR SENIOR CARE, U.A., THOMAS KRIEGL AND JUDITH BREY,
PLAINTIFFS-APPELLANTS,
V.
SAUK COUNTY,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Sauk County: TODD J. HEPLER, Judge. Affirmed.
Before Graham, P.J., Blanchard, and Nashold, JJ.
11 NASHOLD, J. Thomas Kriegl, Judith Bey, and Sauk County Citizens for Senior Care, U.A. (collectively, "the Citizens") filed this action challenging the proposed sale of a nursing home owned by Sauk County ("the County"). The County moved to dismiss the action for failing to state a claim for

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relief, and the circuit court granted the County’s motion. On appeal, the Citizens
argue that the court erred in dismissing three of their claims, namely, claims that
the proposed sale would violate: (1) the public purpose doctrine; (2) a resolution
that the Sauk County Board (the “County Board”) had previously adopted
regarding proposals as to how to market the nursing home for sale (the “marketing
resolution”); and (3) WIS. STAT. § 65.90(5) (2023-24), which requires that changes
in a municipal budget to the amount of tax to be levied or to the amounts and
purposes of appropriations be approved by a two-thirds majority of the governing
body of the municipality, here, the County Board.1
¶2 Construing the County’s motion as a motion for summary judgment,
we conclude, based on the undisputed facts, that the Citizens’ three claims fail as a
matter of law. First, regarding the Citizens’ public purpose claim, we conclude
that the sale of the nursing home for less than its fair market value was justified by
several recognized public purposes—namely, increasing the County’s property tax
base by making the property subject to property tax; allowing the property tax
revenue that was being used to sustain the nursing home’s operation to be used for
other purposes; and, through these two factors and the proceeds of the sale,
reducing the County’s debt. Second, we conclude that the circuit court properly
dismissed the Citizens’ claim that is predicated on the marketing resolution
because that resolution addressed how to market the nursing home for sale and
does not place any conditions on the actual sale of the nursing home. And finally,
we conclude that the Citizens’ claim under WIS. STAT. § 65.90(5) was properly
dismissed because the challenged action—the County Board’s approval of the
1 All references to the Wisconsin Statutes are to the 2023-24 version.

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sale—did not change the amount of tax to be levied or the amounts and purposes
of appropriations in the County’s budget.
BACKGROUND
¶3 The following facts are derived from the Citizens’ amended
complaint, which is the operative complaint for purposes of appeal, and from
documents submitted by the County in support of its motion to dismiss.
¶4 At all relevant times, the County owned and operated the Sauk
County Nursing Home (“the nursing home”). In 2009, the County replaced the
original nursing home with a new building and incurred debt to do so. The County
relied on revenue from property taxes to pay this debt and to sustain the nursing
home’s operations.
¶5 In 2024, the County listed the nursing home for sale, asking $8.5
million for its property and operations. Prior to this listing, the County Board
adopted the marketing resolution, which, in pertinent part, imposed various
conditions on how the nursing home would be marketed. The County Board
subsequently approved, by a vote of 18 to 13, a proposed sale of the nursing home
to Aria Sauk County Realty LLC and Aria of Sauk County LLC (collectively,
“Aria”) for $5.1 million, and the County entered into a Purchase and Sale
Agreement and an Operations Transfer Agreement with Aria. The County Board
stated in the marketing resolution that selling the nursing home would allow the
County to use the tax revenue that was being spent to operate the nursing home to
provide other public services.
¶6 The Citizens brought an action against the County challenging the
proposed sale of the nursing home to Aria. Their amended complaint was

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comprised of seven claims, including the claims that are at issue here: that the
proposed sale would violate the public purpose doctrine and the marketing
resolution, and that, because the proposed sale would affect the County’s budget,
WIS. STAT. § 65.90(5) required that the proposed sale be approved by two-thirds
of the County Board, which had not occurred.2
¶7 The County moved to dismiss the amended complaint, which the
circuit court granted. The Citizens appeal.3
DISCUSSION
¶8 The Citizens argue that the circuit court erred in dismissing three of
their claims. Specifically, the Citizens challenge the dismissal of their claims that
the proposed sale violated the public purpose doctrine, the marketing resolution,
and WIS. STAT. § 65.90(5).
¶9 We reject the Citizens’ arguments. Before explaining why we do so,
we first clarify the procedural posture of the case and the materials that we rely on
for our review.
¶10 Although the County styled its motion as a motion to dismiss for
failure to state a claim upon which relief can be granted, the County submitted
with its motion various documents in support of its arguments, and at least some
of these documents addressed matters not referred to in the pleadings. The County
2 The Citizens do not challenge the dismissal of their remaining four claims.
3 The County represented in its response brief on appeal that, at the time that brief was
filed, the sale of the nursing home had not been finalized as a result of the ongoing litigation and
a requirement in one of the agreements related to the sale that there not be any legal actions
seeking to prohibit the sale. The lack of finality does not affect our review.

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asserted that the circuit court could consider these documents on a motion to
dismiss through the incorporation by reference doctrine and by taking judicial
notice of the facts contained in the documents.
¶11 In their response to the County’s motion, the Citizens challenged the
applicability of incorporation by reference and judicial notice and argued that the
County’s motion was “in effect a summary judgment motion.” And, in response
to the County’s arguments, the Citizens also proceeded to submit their own
documents containing information beyond that contained in the amended
complaint. Further, the Citizens argued that the County’s motion should be denied
not only on the ground that the Citizens’ claims are adequately pleaded but also
because there are disputed issues of material fact created by the submissions
outside the pleadings. Specifically, the Citizens argued that the value of the
nursing home is a disputed issue of material fact as to their public purpose claim.
¶12 The circuit court, in granting the County’s motion, relied in part on
information not included in the amended complaint but included in the documents
that the County submitted with its motion. The court referred to the County’s
motion as a “motion to dismiss” but did not otherwise address the County’s
argument that the court could consider the County’s submissions on a motion to
dismiss or the Citizens’ argument that the County’s motion should be treated as
one for summary judgment.
¶13 Consistent with what it asserted in the circuit court, the County
asserts on appeal that, between the incorporation by reference doctrine and our
ability to take judicial notice of certain facts, we may treat the County’s motion as
a motion to dismiss, and, in doing so, consider all of the relevant information in
the documents that the County submitted with its motion. However, we need not

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resolve whether the County is correct on these points, given our conclusion that
we may treat the County’s motion as one for summary judgment and construe the
circuit court as having implicitly done the same, as we now explain.
¶14 “If on a motion … to dismiss for failure of the pleading to state a
claim upon which relief can be granted, … matters outside of the pleadings are
presented to and not excluded by the court, the motion shall be treated as one for
summary judgment[.]” WIS. STAT. § 802.06(2)(b). When a motion to dismiss is
treated as a motion for summary judgment under § 802.06(2)(b), “all parties shall
be given a reasonable opportunity to present all material made pertinent to such a
motion.” Generally, a circuit court must notify the parties if it intends to convert a
motion to dismiss for failure to state a claim to a motion for summary judgment.
CTI of Ne. Wis., LLC v. Herrell, 2003 WI App 19, ¶5, 259 Wis. 2d 756, 656
N.W.2d 794. However, when a party responds to a motion to dismiss as if it were
a motion for summary judgment—for example, by submitting additional
documents containing facts beyond what was alleged in the amended complaint,
and by failing to suggest that other relevant evidence could be produced—that
party cannot then successfully challenge the circuit court’s decision on the basis
that the court improperly converted the motion to dismiss to one for summary
judgment without notice. Id., ¶¶10, 11; see also Alioto v. Marshall Field’s & Co.,
77 F.3d 934, 936 (7th Cir. 1996) (“[A] litigant … who seeks to upset a judgment
because it resulted from the improper conversion of a … motion [to dismiss for
failure to state a claim] into one for summary judgment must show that notice and
an opportunity to respond would have mattered. [The litigant] must, that is,
establish that [the litigant] would have been able to create a material factual
dispute, which would have precluded the grant of summary judgment.”).

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¶15 Here, the Citizens make one argument that, if meritorious, would
show that conversion to summary judgment was improper. Consistent with what
they argued in the circuit court, the Citizens argue on appeal that the value of the
nursing home is a factual issue on which they were entitled to discovery and which
precluded dismissal of their public purpose claim—an argument that we address
and reject later in this opinion. Otherwise, however, the Citizens do not identify
other disputed issues of fact. Nor do they argue that they were denied a reasonable
opportunity to present materials pertinent to the County’s motion. Instead, the
Citizens merely assert that treating the County’s motion as one for summary
judgment “would be highly prejudicial” to the Citizens “and contrary to well-
established rules of civil procedure.” It appears that the Citizens’ assertion of
prejudice is related to their discovery argument, which, as stated, we subsequently
reject. To the extent the Citizens’ assertion of prejudice is grounded in some other
rationale, the Citizens do not develop this argument, and we reject it for that
reason. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992) (explaining that this court need not consider arguments that are unsupported
by legal authority or are otherwise undeveloped).
¶16 In sum on this issue, the Citizens do not persuasively identify any
genuine issues of material fact that preclude summary judgment, and they do not
argue that they were denied notice or a reasonable opportunity to present material
relevant to the County’s motion. Moreover, any argument challenging our use of
a summary judgment framework would be unavailing based on how the Citizens
responded to the County’s motion—namely, by effectively treating the County’s
motion as one for summary judgment, by identifying what they argued were
disputed issues of material fact, and by submitting documents with their response
that contained information beyond what was alleged in the amended complaint to

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refute the County’s arguments. Accordingly, we will treat the County’s motion as
one for summary judgment, and the circuit court’s dismissal of the Citizens’
claims as a grant of summary judgment in the County’s favor.
¶17 Turning to summary judgment standards, summary judgment is
proper when the pertinent materials “show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” WIS. STAT. § 802.08(2). We review a circuit court’s summary judgment
decision de novo. Converting/Biophile Lab’ys, Inc. v. Ludlow Composites Corp.,
2006 WI App 187, ¶13, 296 Wis. 2d 273, 722 N.W.2d 633.
I. Public Purpose Doctrine
¶18 The Citizens argue that the circuit court erred when it dismissed their
claim that the proposed sale violates the public purpose doctrine. We disagree.
¶19 “Although there is no specific clause in the Wisconsin Constitution
establishing the public purpose doctrine, this court has recognized that the doctrine
is firmly accepted as a basic constitutional tenet of the Wisconsin Constitution and
the United States Constitution.” Town of Beloit v. County of Rock, 2003 WI 8,
¶20, 259 Wis. 2d 37, 657 N.W.2d 344. Under the public purpose doctrine, “[a]
legislative body may appropriate public funds only for public purposes.”
Alexander v. City of Madison, 2001 WI App 208, ¶7, 247 Wis. 2d 576, 634
N.W.2d 577. “To maintain a public purpose, the benefit to the public must be
direct and not remote.” Bishop v. City of Burlington, 2001 WI App 154, ¶10, 246
Wis. 2d 879, 631 N.W.2d 656.
¶20 “[T]he legislative body determines what constitutes a public
purpose,” and we accord great deference to this determination. Beloit, 259

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Wis. 2d 37, ¶¶27, 28. “Under the public purpose doctrine, we are not concerned
with the wisdom, merits or practicability of the legislature’s enactment. Rather we
are to determine whether a public purpose can be conceived which might
reasonably be deemed to justify or serve as a basis for the expenditure.” Id., ¶20
(internal quotation marks omitted) (quoting Jackson v. Benson, 218 Wis. 2d 835,
896, 578 N.W.2d 602 (1998)). We “can conclude that no public purpose exists
only if it is clear and palpable that there can be no benefit to the public.” Beloit,
259 Wis. 2d 37, ¶20 (internal quotation marks omitted) (quoting Jackson, 218
Wis. 2d at 896). The burden is on the party challenging the appropriation of
public funds to clearly show that no public purpose exists. Alexander, 247
Wis. 2d 576, ¶10.
¶21 The public purpose doctrine applies to municipalities. Bishop, 246
Wis. 2d 879, ¶11. “Because of the accepted view that local governments are often
in the best position to determine the needs of the public in that locality, Wisconsin
municipalities have traditionally been given wide discretion to determine whether
a public expenditure is warranted ….” Beloit, 259 Wis. 2d 37, ¶30.
¶22 Under the public purpose doctrine, a municipality may not sell
municipally owned property for less than its fair market value unless there is a
valid public purpose for doing so. See Hermann v. City of Lake Mills, 275 Wis.
537, 542, 82 N.W.2d 167 (1957). In Hermann, the plaintiffs challenged a
municipality’s sale of a parcel of land for what the plaintiffs alleged was less than
the parcel’s fair market value. Id. at 540-41. Our supreme court stated that “a
transfer of municipal property to a manufacturing corporation in return for a
payment representing only part of the fair market value of the property, which is
knowingly made for the purpose of promoting industrial expansion, is … beyond
the power of the municipality.” Id. at 542. Concluding that the sale was not

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justified by a public purpose, the Hermann court reversed the circuit court’s grant
of summary judgment in favor of the city, reasoning that the fair market value of
the parcel was a disputed issue of material fact. Id. at 544.
¶23 However, Wisconsin appellate courts have also determined that a
municipality need not receive any monetary consideration in exchange for a
conveyance of municipally owned property when the conveyance is justified by a
valid public purpose. For example, in Rath v. Two Rivers Community Hospital,
Inc., 160 Wis. 2d 853, 467 N.W.2d 150 (Ct. App. 1991), we addressed the
conveyance to a private corporation of a hospital that was owned by the city and
had been operating at a deficit each year. Id. at 857. The city received no
monetary consideration for the hospital, but ownership of the hospital would revert
to the city if the facility was not used for the health care needs of the community.
Id. at 857, 862, 865. We concluded that “[e]xpending public funds to assure
adequate health care services is within the public interest,” and that the
conveyance did not violate the public purpose doctrine. Id. at 862.
¶24 More recently, in Bishop, we addressed a challenge to the
conveyance of a municipally owned parking lot to a private citizen. Bishop, 246
Wis. 2d 879, ¶1. The municipality did not receive any monetary consideration,
but the private citizen was obligated to upgrade the parking lot, rehabilitate a
building that the citizen owned, convey a different parcel to the city to be used as a
park, and promise to maintain the parking lot as a public facility for three years
after the date of conveyance. Id., ¶4. We concluded that “the purpose of the
conveyance was to promote the rehabilitation of [the municipality’s] downtown,”
and that “[t]he rehabilitation of deteriorating public facilities is a legitimate public
purpose.” Id., ¶21.

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¶25 Here, the Citizens argued in the circuit court that the proposed sale
violates the public purpose doctrine because the sale price of $5.1 million would
be less than the nursing home’s fair market value and is not justified by any public
purpose. Renewing this position on appeal, the Citizens argue that the court erred
when it dismissed this claim. The County, for its part, argues that the Citizens did
not adequately plead that the proposed sale price is less than the nursing home’s
fair market value. The County additionally argues that the documents that it
submitted to the court with its motion show that the proposed sale is justified by
several public purposes, including expanding the County’s tax base by making the
property subject to property tax, freeing up tax revenue for other public purposes
that otherwise would have been allocated to the nursing home’s operations, and
retiring the public debt “to fund other public priorities.”
¶26 We will assume without deciding that the proposed sale price of the
nursing home is less than its fair market value. Even with that assumption, we
conclude, based on the undisputed material facts, that the proposed sale at this
price is justified by valid public purposes, namely, expanding the County’s tax
base, freeing up tax revenue, and allowing the County to retire the County’s debt.
¶27 Indeed, in Beloit, our supreme court recognized these as valid
justifications under the public purpose doctrine. Beloit, 259 Wis. 2d 37, ¶¶36, 47.
In Beloit, the court addressed whether a municipality’s “expenditure of public tax
monies to develop and sell municipally-owned property” was justified by a public
purpose. Id., ¶19. The Beloit court recognized as a valid public purpose “the goal
of increasing the tax base.” Id., ¶36; see also Alexander, 247 Wis. 2d 576, ¶10
(also recognizing “[i]ncreasing the property tax base” as a valid public purpose).
And the Beloit court further stated that “any profit realized from [the
municipality’s sale of property] would in fact benefit [the municipality] in that the

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profit would … ultimately benefit all of the citizens of the town by way of
decreased taxes and reduced debt.” Beloit, 259 Wis. 2d 37, ¶47.
¶28 Here, the undisputed facts demonstrate that the nursing home was
operating at a loss and that the sale of the nursing home will increase the County’s
property tax base by shifting the property from County to private ownership,
thereby making it subject to property tax; allow the property tax revenue that was
being used to sustain the nursing home’s operations to be used for other purposes;
and, through this mix of increased revenue, reduced expenditures, and the
monetary consideration received for the sale, allow the County to retire debt.
Applying the reasoning in Beloit, we conclude that these are valid public purposes,
and that the Citizens therefore fail to clearly show that no public purpose exists.
See Alexander, 247 Wis. 2d 576, ¶10.4 We reject the Citizens’ arguments to the
contrary.
¶29 The Citizens rely heavily on Hermann, discussed above, which was
decided in 1957 and predates Beloit and the other more recent precedent we rely
on here that more extensively discuss the public purpose doctrine. The Citizens
contend that there is no public purpose justifying the sale of the nursing home, and
that the fair market value of the nursing home is thus an issue of fact on which
4 Our conclusion is based on the presence of all of these public purposes justifying the
proposed sale. We need not address whether any one of these public purposes in isolation would
be sufficient to justify the proposed sale. Relatedly, we observe that the Citizens limit their
argument regarding the public purpose doctrine to the position that these are not public purposes.
They do not argue that even if these are valid public purposes that have been recognized under
Wisconsin case law, any public benefit resulting from the sale of the nursing home would be too
remote and indirect for the public purpose doctrine to apply under the facts here. See Bishop v.
City of Burlington, 2001 WI App 154, ¶10, 246 Wis. 2d 879, 631 N.W.2d 656 (“To maintain a
public purpose, the benefit to the public must be direct and not remote.”). Accordingly, we need
not address that as a potential issue.

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they are entitled to discovery, thereby precluding dismissal of their public purpose
claim. We conclude that the Citizens’ reliance on Hermann is misplaced.
¶30 To begin, Hermann is factually distinct from the facts here for the
same reasons that we distinguished Hermann from the facts in Bishop. In
Bishop, we concluded that the Hermann court “could see no larger public benefit
conferred on the City other than the cash payment.” Bishop, 246 Wis. 2d 879, ¶19
(citing Hermann, 275 Wis. at 542-43). Here, in contrast, the County has
identified several public benefits resulting from the sale in addition to the cash
payment for the sale. And although some of these justifications might have also
applied in Hermann—for example, increasing the municipality’s property tax
base—the facts here are materially distinct in that the nursing home was operating
at a loss and required revenue from property taxes to sustain its operations.
¶31 Additionally, even if some of the justifications from Beloit on which
we rely here might have applied in Hermann, Hermann was decided long before
Wisconsin case law recognized as legitimate public purposes increasing the
property tax base, decreasing taxes, and reducing public debt. See Beloit, 259
Wis. 2d 37, ¶¶36, 47 (recognizing decreasing taxes and reducing debt as public
purposes). And significantly, our supreme court has noted that “the trend of
Wisconsin courts [has been] to extend the concept of public purpose.” Id., ¶31;
see also Bishop, 246 Wis. 2d 879, ¶12 (observing “the judicial trend to extend the
scope of activities considered to be valid public purposes”); State ex rel. Bowman
v. Barczak, 34 Wis. 2d 57, 65, 148 N.W.2d 683 (1967) (“‘[W]hat could not be
deemed a public use a century ago may, because of changed economic and
industrial conditions, be such today.’” (quoted source omitted)); State ex rel.
Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 55-56, 205 N.W.2d 784
(1973) (“Public purpose is not a static concept. The trend of both legislative

No. 2025AP1919
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enactments and judicial decisions is to extend the concept of public purposes in
considering the demand upon municipal governments to provide for the needs of
the citizens.”); see also Kramer v. Board of Educ. of Sch. Dist. of Menomonie
Area, 2001 WI App 244, ¶20, 248 Wis. 2d 333, 635 N.W.2d 857 (“[W]here
supreme court decisions appear to be inconsistent, or in conflict, we follow the
court’s most recent pronouncement.”). In light of this well-recognized judicial
trend to expand the public purpose doctrine and the more recent case law
recognizing as public purposes increasing the property tax base, decreasing taxes,
and reducing debt, we conclude that Hermann does not preclude summary
judgment on the Citizens’ public purpose claim.
¶32 The Citizens also appear to argue that public purposes justifying the
sale of municipal property must consist of benefits provided by the buyer as
consideration for the sale. However, this runs counter to the case law on which we
rely here, which recognizes as valid public purposes benefits that are created by
the sale but that are not provided directly by the buyer, such as increased tax
revenue that will be generated by the ability to tax the property being sold.
¶33 Relatedly, the Citizens fault the circuit court for not addressing
whether the proposed sale price of the nursing home was less than the nursing
home’s fair market value. As noted above, the Citizens also argue that the fair
market value is a disputed factual issue on which they are entitled to discovery and
that saves their public purpose claim from dismissal. However, in light of the
valid public purposes identified here that justify the sale of the nursing home even
at a sale price that we have assumed is less than its fair market value, the value of
the nursing home is not a material issue of fact that precludes dismissal of the
Citizens’ public purpose claim. See, e.g., Rath, 160 Wis. 2d 853. Indeed, as
discussed earlier, in Rath we upheld under the public purpose doctrine the

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conveyance of a city hospital that had been operating at a loss in the absence of
any monetary consideration from the private entity to whom it was conveyed. See
id. There, under facts analogous to those here, the court determined that the
conveyance of the hospital comported with the public purpose doctrine because
the hospital was required to be used for the health care needs of the community
and because assuring adequate health care services is a public purpose.5 See id.
II. Marketing Resolution
¶34 The Citizens argue that dismissal was improper because they
presented undisputed factual allegations to show that, by voting to sell the nursing
home, the County violated the marketing resolution. In adopting the marketing
resolution, the County Board resolved “that a Request for Proposals marketing the
Sauk County Nursing Home be issued with the following conditions.” The
marketing resolution then listed these conditions, which include several that the
Citizens allege the sales contract violates, for example: “[t]he [C]ounty reserves
the right of first refusal not to exceed the sale price,” “[t]he potential buyer shall
demonstrate a history of 5-star ratings in the senior health care industry,” and
“[t]he potential buyer shall retain existing staff subject to job performance.” The
5 Although the County does not specifically compare the facts here to those in Rath, the
County does argue that conditions for the proposed sale here maximize the likelihood that the
nursing home will continue to serve the public as a nursing home, which the County identifies as
an additional public purpose justifying the sale. For example, pursuant to the Purchase and Sale
Agreement and the Operations Transfer Agreement, Aria must use its best efforts to obtain the
necessary government approvals to continue to operate the nursing home as a skilled nursing
facility. Additionally, the County has the right to repurchase the nursing home if Aria receives a
bona fide offer to purchase the nursing home from a third party in the next ten years. Because the
County does not appear to have argued in the circuit court that assuring adequate health care
services is a public purpose that justified the proposed sale, we do not rely on that public purpose
in our analysis. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d
572, 786 N.W.2d 177 (explaining that issues not raised in the circuit court are forfeited, and
supporting the proposition that appellate courts generally do not address forfeited issues).

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Citizens argue that the proposed sale of the nursing home “clearly violates” the
conditions in this resolution, which the Citizens characterize as the “enabling
resolution authorizing the sale.” This argument fails for two independent reasons.
¶35 First, it relies on a mischaracterization of the marketing resolution.
As the circuit court reasoned, the marketing resolution only imposes conditions on
the County’s request for marketing proposals. In other words, these requirements
apply to how the nursing home was to be marketed, and not to the manner in
which and to whom it is to be sold.
¶36 Second, even if there is a conflict between the marketing resolution
and the terms of the proposed sale of the nursing home, the Citizens’ claim
nonetheless fails because the County Board voted to supersede the marketing
resolution. Specifically, the motion to approve the sale of the nursing home
expressly provides that the County Board’s approval of the sale supersedes the
marketing resolution to the extent that there is any conflict. As explained below,
this defeats the Citizens’ argument.
¶37 A municipal corporation “‘has a right to reconsider under
parliamentary law its vote and action upon questions properly pending before it,
and [to] rescind its previous action provided vested rights are not violated and
such rescission is in conformity with the law applicable to the government of the
body.’” Jackson County v. DNR, 2006 WI 96, ¶34, 293 Wis. 2d 497, 717 N.W.2d
713 (alteration in original) (quoting Edwards Realty & Fin. Co. v. City of
Superior, 250 Wis. 472, 477, 27 N.W.2d 370 (1947)). The County argues that the
Citizens do not allege that any vested rights were violated. The Citizens do not
refute this argument, and we treat their failure to do so as a concession. See

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Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 108-09, 279
N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed conceded).
¶38 Instead, the Citizens argue that their claim should not have been
dismissed because the County Board did not follow parliamentary procedure in
superseding the marketing resolution. Specifically, they argue that the County
violated Robert’s Rules of Order, which states that rescinding an earlier vote
requires:
(a) a two-thirds vote, (b) a majority vote when notice of
intent to make the motion, stating the complete substance
of the proposed change, has been given at the previous
meeting within a quarterly time interval or in the call of the
present meeting, or (c) a vote of a majority of the entire
membership—any one of which will suffice.
HENRY M. ROBERT III, ET AL., ROBERT’S RULES OF ORDER NEWLY REVISED, 211
(11th ed. 2011).6 Pursuant to this rule, the Citizens argue the County Board
needed, but lacked, two-thirds approval for the motion superseding the marketing
proposal resolution because there was not notice of the motion at a prior meeting.
However, the Citizens’ amended complaint does not allege that the County Board
did not follow parliamentary procedure. And, even setting that omission aside, the
Citizens misread this rule and omit relevant language when they quote the rule in
their appellants’ brief. As the County argues, in using the disjunctive “or,” the
rule also allows an earlier vote to be rescinded, without prior notice, by “a vote of
a majority of the entire membership.” Such was the case here. The motion to
6 The County Board Rules state: “Robert’s Rules of Order Newly Revised, 2011 (11th)
Edition, shall govern the proceedings of the Board in all cases to which they are applicable and in
which they are not inconsistent with [the County Board] Rules or the laws of the State of
Wisconsin.”

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supersede the marketing proposal resolution was approved by 18 members of the
31-member County Board.
¶39 Additionally, in their appellants’ brief, the Citizens argue that the
motion to supersede the marketing proposal resolution violated parliamentary law
because “[p]roper parliamentary process must be seen as prohibiting combining
two different subjects into a single motion.” However, in response, the County
correctly points out that the Citizens do not cite any authority to support this
proposition, and the County additionally argues that in any event, the motion did
not combine two different subjects. The Citizens do not respond to these
arguments in their reply brief, and we therefore reject their argument that the
marketing resolution improperly combined two different subjects into a single
motion. The argument is unsupported by legal authority in the first place, and the
Citizens have additionally conceded that the motion superseding the marketing
proposal resolution did not combine two different subjects into a single motion.
See Pettit, 171 Wis. 2d at 646 (this court need not consider arguments that are
unsupported by legal authority or are otherwise undeveloped); see Charolais, 90
Wis. 2d at 108-09 (unrefuted arguments are deemed conceded).
III. WISCONSIN STAT. § 65.90(5)
¶40 The Citizens argue that dismissal of their WIS. STAT. § 65.90(5)
claim was improper because (1) pursuant to § 65.90(5)(ar) and a county ordinance
incorporating that statute’s requirements, the County needed affirmative votes by
two-thirds of the members of the County Board to approve the sale, and (2) the
Citizens presented sufficient facts to show that the County Board lacked the
requisite two-thirds vote.

No. 2025AP1919
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¶41 WISCONSIN STAT. § 65.90(5)(ar) states, as relevant here, that “the
amount of tax to be levied or certified, the amounts of the various appropriations
and the purposes for such appropriations stated in a [municipal] budget … may not
be changed unless authorized by a vote of two-thirds of the members-elect of the
governing body of the municipality.” The County Board’s rules similarly state
that “[a]ny budget alterations shall require authorization by two-thirds of the
membership of the Board in accordance with WIS. STAT. § 65.90(5).”
¶42 The Citizens argue that the County needed authorization from two-
thirds of the County Board members because approving the sale was a budget
alteration that changed the amount of tax to be levied and the amounts and
purposes of appropriations. Specifically, the Citizens argue that WIS. STAT.
§ 65.90(5)(ar) requires two-thirds approval for actions that will affect a
municipality’s budget, and that approving the sale will affect the County’s budget
by: causing the County to stop appropriating tax revenue to fund the nursing
home, obviating the need to continue to pay down the outstanding debt from
nursing home renovations, and removing a large asset from the County’s balance
sheet.
¶43 We reject the Citizens’ argument because we conclude that WIS.
STAT. § 65.90(5)(ar) does not apply to an action that will merely affect a
municipality’s budget. Instead, it applies to changes to taxes and appropriations as
those taxes and appropriations are stated in a municipal budget. Specifically, the
relevant language in § 65.90(5)(ar) states that
the amount of tax to be levied or certified, the amounts of
the various appropriations and the purposes for such
appropriations stated in a budget required under sub. (1) or
authorized under sub. (1m) may not be changed unless
authorized by a vote of two-thirds of the members-elect of
the governing body of the municipality.

No. 2025AP1919
20
(Emphasis added.) Relevant here, subsection (1) states, in part: “Except as
provided in sub. (1m), every municipality shall annually … formulate a budget[.]”
And subsection (1m) allows municipalities to adopt biennial budgets. See
§ 65.90(1m)(b).
¶44 This language shows that WIS. STAT. § 65.90(5)(ar) applies to
changes of taxes and appropriations that are stated in a municipal budget. Here,
the undisputed facts show that the vote to approve the sale was not a vote to
specifically change any taxes or appropriations as stated in the County’s budget,
and the Citizens’ argument therefore fails. The Citizens’ reading of
paragraph (5)(ar) would treat any action that affects a municipality’s budget as a
change requiring two-thirds approval under § 65.90(5)(ar). This strained reading
would extend the scope of the statute far beyond its language because many of the
actions that a governing body of a municipality might take will have at least some
effect on the municipality’s budget. If the legislature had intended more broadly
for the two-thirds requirement to apply to any action that will have any effect on a
municipal budget, the legislature could have so stated. Moreover, the undisputed
facts show that the authorization of the sale itself did not affect the County’s
budget. As the County argues, once the sale is completed, changes to the budget
under § 65.90(5)(ar) may need to be approved, but those were at all relevant times
still speculative and would be distinct from the County Board’s decision to
authorize the sale.
¶45 The Citizens also rely for their position on two Wisconsin Attorney
General opinions, but we conclude that neither is persuasive here. One is
distinguishable because it concerns a county board resolution that specifically
authorized funds appropriated for one purpose to be used for a different purpose.
See 75 Wis. Op. Att’y Gen. 56 (Apr. 22, 1986). And the other is distinguishable

No. 2025AP1919
21
because it states that two-thirds approval is required to appropriate funds for a
particular purchase. See 66 Wis. Op. Att’y Gen. 198 (June 1, 1977).
¶46 In sum, the circuit court properly dismissed the Citizens’ claim that
the County violated WIS. STAT. § 65.90(5).
CONCLUSION
¶47 For the reasons stated, we affirm.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.