2018 WI 63

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP1858

COMPLETE TITLE: Wisconsin Three, LLC, Voters with Facts, Leah 

Anderson, David Wood, Jo Ann Hoeppner Cruz, 

Maryjo Cohen, Janice Wnukowski, Rachel Mantik, 

Pure Savage Enterprises, LLC, Paul Zank, Judy 

Olson, Janeway Riley, J. Peter Bartl and Dorothy 

Westermann, Dewloc, LLC, Cynthia Burton, Corinne 

Charlson, Christine Webster, 215 Farwell LLC,

 Plaintiffs-Appellants-Petitioners,

 v.

City of Eau Claire and City of Eau Claire Joint 

Review Board,

 Defendants-Respondents.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 376 Wis. 2d 479, 899 N.W.2d 706

PDC No: 2017 WI App 35 - Published

OPINION FILED: June 6, 2018

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: February 23, 2018

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Eau Claire

JUDGE: Paul J. Lenz

JUSTICES:

CONCURRED:

DISSENTED: R.G. BRADLEY, J., and KELLY, J., dissent 

(opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were 

briefs filed by Thomas C. Kamenick, Richard M. Esenberg, Brian 

McGrath, and Wisconsin Institute for Law & Liberty, Milwaukee. 

There was an oral argument by Richard M. Esenberg.

For the defendants-respondents, there was a brief filed by

Douglas Hoffer, assistant city attorney, and Stephen C. Nick, 

city attorney, with whom on the brief was Remzy D. Bitar and 
2

Arenz, Molter, Macy, Riffle & Larson S.C., Waukesha. There was 

an oral argument by Douglas Hoffer.

An amicus curiae brief was filed on behalf of Eau Claire 

Area Chamber of Commerce, Inc. by Ryan J. Steffes and Weld 

Riley, S.C., Eau Claire.

An amicus curiae brief was filed on behalf of Wisconsin 

REALTORS Association, NAIOP-WI, and the Wisconsin Economic 

Development Association by Thomas D. Larson and The Wisconsin 

REALTORS Association, Madison.

An amicus curiae brief was filed on behalf of League of 

Wisconsin Municipalities, City of Milwaukee, City of Madison, 

and Wisconsin Towns Association by Claire Silverman and League 

of Wisconsin Municipalities, Madison, with whom on the brief 

were Mary L. Schanning, deputy city attorney of Milwaukee; Gregg 

C. Hagopian, assistant city attorney of Milwaukee; Grant F. 

Langley, city attorney of Milwaukee; Michael May, city attorney

of Madison; and Rick Manthe and Wisconsin Towns Association, 

Shawano.

An amicus curiae brief was filed on behalf of the State of 

Wisconsin by Misha Tseytlin, solicitor general, Brad D. Schimel, 

attorney general, and Kevin M. LeRoy, deputy solicitor general. 

There was an oral argument by Misha Tseytlin. 
2018 WI 63

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP1858

(L.C. No. 2015CV175)

STATE OF WISCONSIN : IN SUPREME COURT

Voters with Facts, Pure Savage Enterprises, 

LLC, Wisconsin Three, LLC, 215 Farwell LLC, 

Dewloc, LLC, Leah Anderson, J. Peter Bartl, 

Cynthia Burton, Corinne Charlson, Maryjo Cohen, 

Jo Ann Hoeppner Cruz, Rachel Mantik, Judy 

Olson, Janeway Riley, Christine Webster, 

Dorothy Westermann, Janice Wnukowski, David 

Wood and Paul Zank,

 Plaintiffs-Appellants-Petitioners,

 v.

City of Eau Claire and City of Eau Claire Joint 

Review Board,

 Defendants-Respondents.

FILED

JUN 6, 2018

Sheila T. Reiff

Clerk of Supreme Court

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

cause remanded. 

¶1 ANNETTE KINGSLAND ZIEGLER, J. This case arises out 

of the approval of a redevelopment project in the City of Eau 

Claire (the "City"), which relied in part on funds derived from 

two tax incremental districts ("TIDs"): TID 8 and TID 10. 
No. 2015AP1858

2

Voters with Facts, et al.1 ("Plaintiffs") challenged the legality 

of the City's actions with regard to these TIDs. We review here

a published decision of the court of appeals, Voters with Facts 

v. City of Eau Claire, 2017 WI App 35, 376 Wis. 2d 479, 899 

N.W.2d 706 [hereinafter Voters], affirming the Eau Claire County 

circuit court's2 dismissal of Plaintiffs' complaint as to

declaratory judgment, but reversing and remanding as to 

certiorari review. 

¶2 The expansion or creation of TIDs is limited to one of 

four purposes: addressing blighted areas, urban rehabilitation 

or conservation, industrial development, or the promotion of 

mixed-use development. Wis. Stat. § 66.1105(4)(gm)4.a. (2013–

14).3 Where a municipality seeks to expand or create a TID, it 

must resolve to do so for one of these purposes. Id. Here, the 

City's declared purpose was to address blight, and, to support

that purpose, the City's local legislative body had to find, 

among other things, that "[n]ot less than 50%, by area, of the 

real property within the district is . . . a blighted area." 

Id. A TID must also be approved by a joint review board 

("JRB"), which must find, among other things, that "in its 

 

1 There are 19 plaintiffs total: 4 LLCs, 14 individuals, and 

Voters with Facts——"an unincorporated association of grassroots 

citizen volunteers and Eau Claire taxpayers who question the 

propriety of the proposed developments." 

2 The Honorable Paul J. Lenz presided.

3 All references to the Wisconsin Statutes are to the 2013-

14 version unless otherwise noted. 
No. 2015AP1858

3

judgment, the development . . . would not occur without the 

creation of a [TID]." § 66.1105(4m)(b)2. In their complaint, 

Plaintiffs did not dispute that the appropriate bodies stated 

the appropriate findings, but rather alleged that the findings 

were "neither supported by record evidence nor factually 

correct." Additionally, Plaintiffs alleged that the City's 

disbursement of cash grants to the developer for "project costs" 

was unlawful because it amounted to an unconstitutional tax 

rebate and/or because the developer could apply the cash grants 

to reimburse itself for already-incurred costs of demolishing 

historic buildings, contrary to § 66.1105(2)(f)1.a. Plaintiffs 

sought declaratory relief on these claims, but argued in the 

alternative that, under certiorari review, the City had acted 

outside the scope of its lawful authority. 

¶3 The circuit court dismissed Plaintiffs' complaint 

because it found that they lacked standing. The court of 

appeals affirmed in part and reversed in part, remanding with 

instruction. Voters, 376 Wis. 2d 479, ¶¶2, 4. The court of 

appeals affirmed the circuit court's dismissal of Plaintiffs' 

complaint as to declaratory judgment because it agreed that 

Plaintiffs lacked standing. See id., ¶26 (findings); id., ¶39 

(project costs); id., ¶48 (uniformity clause). It reversed and 

remanded for certiorari review, however, because the circuit 

court had not directly addressed that claim. Id., ¶¶35, 60.

¶4 On review, we consider two issues. First, we consider 

whether dismissal of Plaintiffs' declaratory judgment claims was 

proper. We conclude that it was, because Plaintiffs have failed 
No. 2015AP1858

4

to state claims upon which relief can be granted: the first and 

second counts fail because the City Common Council's findings of 

blight and the JRB's "but for" assertions are legislative 

determinations that do not present justiciable issues of fact or 

law; the third count fails because it does not allege facts 

which plausibly establish that the City's cash grant for TID 10 

was used to reimburse the developer's costs associated with

demolishing historic buildings; and the fourth count fails 

because it does not allege facts which plausibly establish that 

cash grants are intended or used to pay owner-developers' 

property taxes. 

¶5 Second, we consider whether certiorari review is 

appropriate. We conclude that it is, because certiorari review 

is the appropriate mechanism for a court to test the validity of 

a legislative determination. The record before us, however, 

does not contain a municipal record sufficient to enable our 

review. Accordingly, we remand to the circuit court for 

certiorari review of Plaintiffs' first and second claims.

¶6 Thus, we affirm the decision of the court of appeals 

on other grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶7 As noted above, this case arises out of the approval 

of a redevelopment project (the "Confluence Project") in 

downtown Eau Claire. The Confluence Project relied in part on 

tax incremental financing ("TIF") derived from the City's 

expansion of the already-existing TID 8 and its creation of 
No. 2015AP1858

5

TID 10,4 both of which were endorsed by the City Planning 

Commission on August 18, 2014. 

¶8 On September 9, 2014, the City Common Council adopted 

a resolution approving the expansion of TID 8. In its 

resolution, the City Common Council stated that "not less than 

50%, by area, of the real property within the amended boundary 

area of the District is a 'blighted area' and is in need of 

'rehabilitation or conservation' within the meaning of Section 

66.1105(2)(a)1 of the Wisconsin Statutes." On September 26, 

2014, the JRB approved the resolution. In its approval, the JRB 

stated that "the development described in the Amendment [to TID 

#8] would not occur without the amendment."5 (Alteration in 

original.)

¶9 On October 14, 2014, the City Common Council adopted a 

resolution approving the creation of TID 10. In its resolution, 

 

4 When a city approves tax incremental financing, the 

property owners within the boundaries of the tax incremental 

district continue to pay the same rate of property tax, and the 

city allocates a portion of that tax revenue to finance the 

approved development project. As property values rise——

presumably due to the public improvements financed by the TIDs——

property owners will pay a higher amount of property tax 

commensurate with the incremental increase in value of their 

property. This value increment——the difference between taxes 

paid before and taxes paid as property values rise——is what the 

City ultimately uses to pay for the public improvements. See

City of Hartford v. Kirley, 172 Wis. 2d 191, 198-200, 493 

N.W.2d 45 (1992).

5 Neither the City Common Council's resolution approving the 

expansion of TID 8, nor the JRB's approval of that resolution, 

are in the record, but the Plaintiffs' complaint alleges that 

these statements were contained in those documents. 
No. 2015AP1858

6

the City Common Council stated that "not less than 50%, by area, 

of the real property within the amended boundary area of the 

District is a 'blighted area' and is in need of 'rehabilitation 

or conservation' within the meaning of Section 66.1105(2)(a)1 of 

the Wisconsin Statutes." On October 22, 2014, the JRB approved 

the resolution. In its approval, the JRB stated that "the 

development described in the Project Plan would not occur 

without the creation [presumably of TID #10]."6 (Alteration in 

original.)

¶10 Open public hearings were held prior to the decisions 

of the Planning Commission and the City Common Council,7 at which 

"numerous city residents, including many of the Plaintiffs, 

spoke out against the TIDs." On March 12, 2015, Plaintiffs 

filed a complaint seeking declaratory relief on four claims. 

¶11 The first and second claims (regarding TID 8 and TID 

10, respectively) challenged the validity of the City's findings 

of blight under Wis. Stat. § 66.1105(4)(gm)4.a. and the JRB's 

"but for" findings under Wis. Stat. § 66.1105(4m)(b)2. With 

regard to the City's findings, Plaintiffs alleged that the City 

was "required to articulate the basis for its finding and the 

evidence of record that supports its action," and that, although 

 

6 Neither the City Common Council's resolution approving the 

creation of TID 10, nor the JRB's approval of that resolution, 

are in the record, but the Plaintiffs' complaint alleges that 

these statements were contained in those documents. 

7 The minutes from these public hearings are not in the 

record before the court.
No. 2015AP1858

7

the City's resolution "contains a conclusory assertion that 'not 

less than 50%, by area, of the real property within the amended 

boundary area of the [TID] is a "blighted area,"'" the City "did 

not articulate the factual basis for this conclusory statement 

and the record before the [City] contains no evidence to support 

its assertion." With regard to the JRB's findings, Plaintiffs 

alleged that the JRB could not have "reasonably concluded on the 

record evidence that the development would not occur in the 

[TID] without tax incremental financing." Plaintiffs thus 

argued that the TIDs lacked a public purpose in violation of the 

public purpose doctrine and sought a declaration that the 

authorization and implementation of the TIDs was "invalid, void, 

and of no force and effect." 

¶12 The third claim challenged the validity of the City's 

disbursement of cash grants pursuant to the project plan for 

TID 10. Plaintiffs alleged that "the development agreement does 

not clearly provide that the [] developer may not use the lump 

sum payments to reimburse itself for the costs of demolishing 

[historic] properties," and that, "[g]iven the lump sum 

character of the developer payments, there is in fact no way to 

assure [how] the payments have been used." Plaintiffs thus 

argued that the cash grants violated Wis. Stat. 

§ 66.1105(2)(f)1.a.——which excludes "destruction of [historic] 

properties" from the definition of "project costs"——because the 

project plan "unlawfully reimburses the developer for 

[demolishing historic properties]," and sought a declaration 
No. 2015AP1858

8

that the implementation of TID 10 was "invalid, void, and of no 

force and effect." 

¶13 The fourth claim also challenged the validity of the 

City's disbursements of cash grants pursuant to the project plan 

for TID 10.8 Plaintiffs alleged that the cash grants function 

"as [a] tax rebate or tax credit" because the developer, who is 

also the "owner of taxable property[,] is given substantial cash 

payments, effectively reimbursing the owner[-developer] (in 

advance) for all or a part of the taxes paid on its property." 

Plaintiffs thus argued that the cash grants violate the 

Uniformity Clause of the Wisconsin Constitution because the 

owner-developer "is being taxed at a more favorable rate than an 

owner of identically-assessed property elsewhere in Eau Claire," 

and sought a declaration that the creation of TID 10 was 

"unlawful, void, and of no force and effect." 

¶14 Plaintiffs asserted certiorari review as an 

alternative basis for relief, "[i]f for any reason [they] are 

not entitled to declaratory relief." On this fifth claim, 

Plaintiffs argue that, "[f]or the reasons set forth above, the 

 

8 The complaint is not clear as to whether this challenge is 

raised against both TIDs or just TID 10. The heading for the 

fourth claim states that it seeks "Declaratory Judgment relating 

to both TIDs," but the final paragraph requests only that "the 

Resolution creating TID #10 [be declared] . . . unlawful, void, 

and of no force and effect." Because we conclude that the claim 

fails to state a claim upon which relief can be granted, this 

discrepancy in the record does not affect our analysis. 
No. 2015AP1858

9

[actions] of the [City and the JRB] [were] arbitrary, 

capricious, and outside the scope of their lawful authority." 

¶15 On April 9, 2015, the City filed its answer, denying 

in relevant part Plaintiffs' allegations. The City also 

asserted a number of affirmative defenses, including that 

"Plaintiffs' complaint contains claims which may fail to state a 

claim upon which relief may be granted," and that "[o]ne or more 

plaintiffs may lack capacity to sue or standing and one or more 

of the claims may be unripe or moot." On May 22, 2015, the City 

filed a motion to dismiss, which more fully articulated its 

challenges to the viability of Plaintiffs' complaint. 

¶16 In general, the City argued that Plaintiffs lacked 

standing because the claims were highly speculative, did not 

allege any direct pecuniary loss, and were not ripe. More 

specifically, the City argued that Plaintiffs' first and second 

claims fail because they do not allege "that there can be no 

benefit to the public . . . which the Plaintiffs must 

demonstrate to prove a lack of public purpose"; Plaintiffs' 

third claim fails because the "'anything's possible' allegations 

are not sufficient" and are moot in any event "because the 

buildings in question have already been demolished"; and 

Plaintiffs' fourth claim fails because it is a facial 

constitutional challenge to a law that has already been held to 

be constitutional. Additionally, even assuming Plaintiffs have 

standing, the City argued that declaratory judgment was not the 
No. 2015AP1858

10

proper method for reviewing the creation or expansion of TIDs, 

which is limited to certiorari.9 

¶17 The circuit court agreed. On August 17, 2015, the 

circuit court ruled from the bench and dismissed Plaintiffs' 

complaint for lack of standing under the declaratory judgment 

standard.10 It concluded that "none of the 

plaintiffs . . . allege a legally protect[a]ble interest" 

because they "allege no particular pecuniary loss attributable 

to them except a speculative possibilit[y] that general tax 

revenues could be affected." The circuit court further 

concluded that the issue was not ripe because the alleged harms 

were highly speculative, and because it concluded that "the 

determination of blight is legislative and is, in essence, a 

political question." In this regard, it determined that 

"[t]here is a lack of judicially discoverable and manageable 

standards," it is impossible to decide the matter "without an 

initial policy determination of a kind that is clearly not for 

judicial discretion," and "the court's undertaking an 

independent resolution of this matter would express a lack of 

 

9 On June 22, 2015, Plaintiffs filed their response. On 

July 2, 2015, the City filed its reply. On July 16, 2015, the 

circuit court held a hearing on the motion. 

10 There are four prerequisites a party must satisfy to seek 

declaratory relief: (1) a justiciable controversy must exist; 

(2) the controversy must be between persons whose interests are 

adverse; (3) the plaintiff must have a legally protectable 

interest in the controversy; and (4) the issue must be ripe for 

determination. See Loy v. Bunderson, 107 Wis. 2d 400, 410, 320 

N.W.2d 175 (1982). 
No. 2015AP1858

11

respect due to coordinate branches of government." On 

August 28, 2015, the circuit court's order dismissing 

Plaintiffs' complaint was filed. Plaintiffs appealed. 

¶18 On May 31, 2017, the court of appeals affirmed in part 

and reversed in part, remanding for further proceedings on 

Plaintiffs' certiorari claim. Voters, 376 Wis. 2d 479, ¶¶2, 4. 

The court of appeals affirmed the circuit court's dismissal of 

Plaintiffs' first four claims because it agreed that Plaintiffs 

lacked taxpayer standing. In this regard, it stated that "the 

alleged unlawful expenditure of public funds, if otherwise 

sufficient to survive a motion to dismiss, is sufficient to 

support taxpayer standing." Id., ¶17 (citing S.D. Realty Co. v. 

Sewerage Comm'n of City of Milwaukee, 15 Wis. 2d 15, 22, 112 

N.W.2d 177 (1961)). It thus concluded that, "[a]scertaining 

whether [Plaintiffs have] standing . . . turns on whether those 

claims adequately allege the unlawful expenditure of public 

funds." Id., ¶18.

¶19 As to the first and second claims, the court of 

appeals concluded that Plaintiffs did not adequately plead the 

unlawful expenditure of public funds because the plain language 

of Wis. Stat. §§ 66.1105(4)(gm)4.a. and 66.1105(4m)(b)2. is 

procedural, not substantive, and therefore requires only that 

the City and the JRB "assert the requisite findings." Id., ¶25. 

Thus, "even assuming a neutral factfinder would conclude there 

was an inadequate factual basis . . . [that] alone do[es] not 

support [Plaintiffs'] allegation that those bodies failed to 

follow the statutory procedure for creating a TID." Id., ¶26. 
No. 2015AP1858

12

The court of appeals concluded, however, that these findings11

may be challenged through certiorari review, id., ¶¶28 n.9, 35, 

and that, if the findings were "without a substantial basis in 

the evidence, or [were] arbitrary and unreasonable (or otherwise 

contrary to law), then the creation/amendment of the TIDs [was] 

not only an unlawful act, but also unconstitutional as lacking a 

valid public purpose," id., ¶59. It thus remanded to the 

circuit court for certiorari review of the City's and the JRB's 

findings.12 Id., ¶60. 

¶20 As to the third claim, the court of appeals concluded 

that Plaintiffs did not adequately plead the unlawful 

expenditure of public funds because the "sum total" of their 

allegations "fail[ed] to allege that anything unlawful has 

occurred, or is even likely to occur." Id., ¶38. Thus, 

Plaintiffs' "alleged injury is far too speculative to create a 

plausible claim for relief." Id., ¶39. 

¶21 As to the fourth claim, the court of appeals 

concluded, as a preliminary matter, that Plaintiffs' allegations 

"constitute[] a facial challenge to the constitutional validity 

of payments authorized by Wis. Stat. § 66.1105(2)(f)2.d." 

 

11 The court of appeals agreed with the circuit court that 

these findings are acts of legislative discretion. Voters, 2017 

WI App 35, ¶30, 376 Wis. 2d 479, 899 N.W.2d 706. 

12 The court of appeals noted that "[t]ypically, this court 

determines for itself whether a plaintiff has adequately stated 

a claim for certiorari relief and whether the plaintiff should 

prevail on the merits of his or her claim," but remanded because 

the parties agreed that remand was more appropriate. Id., ¶60.
No. 2015AP1858

13

because Plaintiffs assert that "in all instances, payments from 

a city to an authorized entity 'effectively reimburs[e] the 

owner (in advance) for all or a part of the taxes paid on its 

property.'" Id., ¶47. The court of appeals then concluded that 

Plaintiffs did not adequately plead the unlawful expenditure of 

public funds because limiting the cash grants to reimbursement 

for "project costs" is a "significant and material restriction 

[that] compels us to conclude this case presents no issue 

regarding uniformity that has not already been settled by our 

supreme court." Id., ¶54 (citing Sigma Tau Gamma Fraternity 

House Corp. v. City of Menomonie, 93 Wis. 2d 392, 412, 288 

N.W.2d 85 (1980), and State ex rel. La Follette v. Torphy, 85 

Wis. 2d 94, 108, 270 N.W.2d 187 (1978)). In this regard, the 

court of appeals noted that Plaintiffs' "characterization of the 

payments as unlawful tax rebates or credits . . . are mere legal 

conclusions, which we need not accept." Id. (citing Data Key 

Partners v. Permira Advisers LLC, 2014 WI 86, ¶18, 356 

Wis. 2d 665, 849 N.W.2d 693). Thus, it concluded that 

Plaintiffs have "failed to state a cognizable claim." Id., ¶48. 

Plaintiffs petitioned for review.

¶22 On October 2, 2017, we granted Plaintiffs' petition 

for review.13

 

13 At the same time that the petition for review was 

granted, motions for discovery and for disqualification of 

Justice Kelly were denied.
No. 2015AP1858

14

II. STANDARD OF REVIEW

¶23 "Whether a complaint states a claim upon which relief 

can be granted is a question of law for our independent review." 

Data Key Partners, 356 Wis. 2d 665, ¶17.

III. ANALYSIS

¶24 On review, we consider two issues. First, we consider 

whether dismissal of Plaintiffs' declaratory judgment claims was 

proper. We conclude that it was, because Plaintiffs have failed 

to state claims upon which relief can be granted: the first and 

second counts fail because the City Common Council's findings of 

blight and the JRB's "but for" assertions are legislative 

determinations that do not present justiciable issues of fact or 

law; the third count fails because it does not allege facts 

which plausibly establish that the City's cash grant for TID 10 

was used to reimburse the developer's costs associated with 

demolishing historic buildings; and the fourth count fails 

because it does not allege facts which plausibly establish that 

cash grants are intended or used to pay owner-developers' 

property taxes. 

¶25 Second, we consider whether certiorari review is 

appropriate. We conclude that it is, because certiorari review 

is the appropriate mechanism for a court to test the validity of 

a legislative determination. The record before us, however, 

does not contain a municipal record sufficient to enable our 

review. Accordingly, we remand to the circuit court for 

certiorari review of Plaintiffs' first and second claims. 
No. 2015AP1858

15

A. Standing

¶26 The circuit court's and court of appeals' decisions 

relied on standing as grounds for dismissal. Here, we analyze 

Plaintiffs' complaint to determine whether it states a claim 

upon which relief may be granted. See State v. Castillo, 213 

Wis. 2d 488, 492, 570 N.W.2d 44 (1997) ("An appellate court 

should decide cases on the narrowest possible grounds."). In 

doing so, we assume without deciding that Plaintiffs had 

standing to bring their claims. 

B. Failure To State A Claim

¶27 "A motion to dismiss for failure to state a claim 

tests the legal sufficiency of the complaint." Data Key 

Partners, 356 Wis. 2d 665, ¶19. "[T]he sufficiency of a 

complaint depends on [the] substantive law that underlies the 

claim made because it is the substantive law that drives what 

facts must be pled." Id., ¶31. In determining whether a 

complaint sufficiently alleges a claim upon which relief may be 

granted,14 we accept as true all facts pled and the reasonable 

 

14 This standard is derived from Wis. Stat. § 802.02(1), 

which states, in relevant part, as follows:

Contents of pleadings. A pleading or 

supplemental pleading that sets forth a claim for 

relief, whether an original or amended claim, 

counterclaim, cross claim or 3rd-party claim, shall 

contain all of the following:

(continued)
No. 2015AP1858

16

inferences therefrom; we do not, however, accept as true any 

legal conclusions stated in the complaint. Id., ¶19. 

"Therefore, it is important for a court considering a motion to 

dismiss to accurately distinguish pleaded facts from pleaded 

legal conclusions." Id.

1. Findings under Wis. Stat. § 66.1105(4)(gm)4.a.

a. The substantive law

¶28 Wisconsin Stat. § 66.1105(4) states, in relevant part, 

as follows:

Creation of tax incremental districts and 

approval of project plans. In order to implement the 

provisions of this section, the following steps and 

plans are required: . . .

(gm) Adoption by the local legislative body of a 

resolution which: . . .

4. Contains findings that:

a. Not less than 50%, by area, of the real 

property within the district is at least one of the 

following: a blighted area . . . .

§ 66.1105(4)(gm)4.a. The term "blighted area" is defined, in 

relevant part, as follows:

An area, including a slum area, in which the 

structures, buildings or improvements, which by reason 

of dilapidation, deterioration, age or obsolescence, 

 

(a) A short and plain statement of the claim, 

identifying the transaction or occurrence or series of 

transactions or occurrences out of which the claim 

arises and showing that the pleader is entitled to 

relief.

§ 802.02(1)(a).
No. 2015AP1858

17

inadequate provision for ventilation, light, air, 

sanitation, or open spaces, high density of population 

and overcrowding, or the existence of conditions which 

endanger life or property by fire and other causes, or 

any combination of these factors is conducive to ill 

health, transmission of disease, infant mortality, 

juvenile delinquency, or crime, and is detrimental to 

the public health, safety, morals or welfare.

§ 66.1105(2)(ae)1.a.

b. The allegations in Plaintiffs' complaint

¶29 With regard to this claim, Plaintiffs' complaint 

alleged the following facts:

29. The City and the JRB created TID #10 and 

amended and expanded TID #8 exclusively for the 

alleged purpose of addressing blighted areas. None of 

the three remaining statutory purposes for creating a 

TID were invoked in connection with or stated by the 

city or the JRB to be the basis for the creation of 

TID #10 or the amendment to TID #8.

51. On September 9, 2014, the City Common 

Council voted 8-3 to adopt a resolution approving 

Amendment No. 3 to TID #8.

58. [O]n October 14, 2014, the City Council 

voted 7-3 to adopt a Resolution approving the creation 

of TID #10.

72. The Resolution adopted by the City Council 

approving Amendment No. 3 to TID #8 contains a 

conclusory assertion that "not less than 50%, by area, 

of the real property within the amended boundary area 

of the District is a 'blighted area.'" The City 

Council did not articulate the factual basis for this 

conclusory statement and the record before the City 

Council contains no evidence to support its assertion.

83. The resolution adopted by the City Council 

approving TID #10 contains a conclusory assertion that 

"not less than 50%, by area, of the real property 

within the boundary area of the District is a 

'blighted area' and is in need of 'rehabilitation or 

conservation' . . . ." The City Council did not 
No. 2015AP1858

18

articulate the factual basis for this conclusory 

statement and the record before the City Council 

contains no evidence to support its assertion.[15]

c. These allegations are insufficient to state a 

claim upon which relief may be granted.

¶30 To determine whether the allegations are sufficient to 

state a claim upon which relief may be granted, we must 

interpret the statute; specifically, we must determine what the 

statute means when it requires that the local legislative body 

adopt a "resolution which . . . [c]ontains findings." Wis. 

Stat. § 66.1105(4)(gm)4. The interpretation of a statute is a 

question of law that we review de novo. See, e.g., Estate of 

Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903 

N.W.2d 759.

¶31 Plaintiffs argue that the areas in question were not 

actually blighted and that, "when the legislature established 

 

15 These allegations span the first and second claims of 

Plaintiffs' complaint, which address TID 8 and TID 10, 

respectively. With regard to both claims, Plaintiffs' complaint 

also alleged several legal conclusions: (1) that, under Wis. 

Stat. § 66.1105(4)(gm)4.a., the City Common Council "was 

required to make a finding that '[n]ot less than 50%, by area, 

of the real property within the district is . . . a blighted 

area'"; (2) that "to properly make such a 'finding' the City 

Council is required to articulate the basis for its finding and 

the evidence of record that supports its action"; (3) that "the 

City Council could not reasonably have concluded that the area 

was blighted"; and (4) that, if a TID "does not actually serve 

to eliminate blight, it lacks a public purpose and therefore 

represents an unconstitutional expenditure of public funds." We 

disregard Plaintiffs' legal conclusions because "legal 

conclusions stated in the complaint are not accepted as true, 

and [] are insufficient to enable a complaint to withstand a 

motion to dismiss." Data Key Partners v. Permira Advisers LLC, 

2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693.
No. 2015AP1858

19

conditions for diverting tax money for the benefit of private 

parties, it intended to permit such diversion only where those 

conditions actually exist." In this regard, Plaintiffs argue 

that "[c]ourts are more than capable of evaluating a factual 

determination made by a municipal body," and "no Wisconsin court 

has ever held that declaratory judgment actions may not be used 

to challenge" TIDs. Moreover, they argue that where "the TIDs 

do not in fact work to eliminate blight, they lack a public 

purpose and are unconstitutional."16 The City argues that the 

determination of blight is a legislative act and that Plaintiffs 

"failed to plead sufficient facts to satisfy the bedrock 

separation-of-powers principle that challenges to state and 

local legislative acts should not be resolved by the judicial 

process if they are 'fairly debatable.'" In this regard, 

"[l]egislative acts enjoy a high level of judicial deference" 

and the complaint "does not demonstrate the duly authorized City 

Council . . . [determinations] were clearly in error." 

Moreover, the complaint "does not demonstrate it is 'clear and 

palpable that there can be no benefit to the public'"; thus, 

Plaintiffs have not stated a claim for violation of the public 

 

16 The public purpose doctrine is the rule that "there can 

be no expenditure of public funds for a private purpose." State 

ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 48, 

205 N.W.2d 784 (1973) (quoting State ex rel. Singer v. Boos, 44 

Wis. 2d 374, 381, 171 N.W.2d 307 (1969)). "No specific clause 

in the constitution establishes the public purpose doctrine. 

However, it is a well-established constitutional tenet." Id. at 

47-48.
No. 2015AP1858

20

purpose doctrine. We conclude that Plaintiffs' complaint was 

properly dismissed as to declaratory judgment on this issue

because the City Common Council's findings of blight are 

legislative determinations that do not present justiciable 

issues of fact or law.

¶32 "[S]tatutory interpretation begins with the language 

of the statute." State ex rel. Kalal v. Circuit Court for Dane 

Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Here, 

the statute states, in relevant part, as follows:

In order to implement the provisions of this section, 

the following steps and plans are 

required: . . . Adoption by the local legislative body 

of a resolution which . . . [c]ontains findings 

that . . . [n]ot less than 50%, by area, of the real 

property within the district is at least one of the 

following: a blighted area . . . .

Wis. Stat. § 66.1105(4)(gm)4.a. "All words and phrases shall be 

construed according to common and approved usage; but technical 

words and phrases and others that have a peculiar meaning in the 

law shall be construed according to such meaning." Wis. Stat. 

§ 990.01(1); see also Kalal, 271 Wis. 2d 633, ¶45; Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of 

Legal Texts 69-77 (2012) ("Ordinary-Meaning Canon"). 

¶33 "Findings" is not a defined term in the statute. The 

word "findings" is also not defined in Black's Law Dictionary, 

which instead refers the reader to the following entry for 

"finding of fact": "A determination by a judge, jury, or 

administrative agency of a fact supported by the evidence in the 

record . . . ." Finding of fact Black's Law Dictionary 749 
No. 2015AP1858

21

(10th ed. 2014). Given this ordinary meaning of "findings", the 

plain language of the statute does not require that the local 

legislative body——here, the City Common Council——itemize the 

evidence in the record that supports its finding of blight.

¶34 This plain language interpretation is supported by the 

context of surrounding and closely-related statutes. See Kalal, 

271 Wis. 2d 633, ¶46 ("[S]tatutory language is interpreted in 

the context in which it is used; . . . in relation to the 

language of surrounding or closely-related statutes."). In a 

closely-related statute, the legislature has demonstrated that 

it is fully capable of specifying when findings of blight must

be explained by itemized evidence. See Wis. Stat. 

§ 32.03(6)(c)4. Chapter 32 governs the acquisition of condemned 

property vis-à-vis eminent domain, including municipal 

acquisition of blighted properties under chapter 66. See, e.g., 

Wis. Stat. § 66.1331(4)(a)3., (4)(b); Wis. Stat. 

§ 66.1333(5)(a)3., (5)(b)1. Section 32.03(6) limits this method 

of acquiring blighted properties by requiring that "the 

condemnor shall make written findings and provide a copy of the 

findings to the owner of the property. The findings shall 

include . . . [a] finding that the owner's property is blighted 

and the reasons for that finding." § 32.03(6)(c)4. (emphasis 

added). Thus, the legislature is fully capable of specifying 

when the reasons underlying a finding of blight must be given, 

and we should not read into Wis. Stat. § 66.1105(4)(gm)4.a. such 

a requirement where it is not specified. See Scalia & Garner, 
No. 2015AP1858

22

supra ¶32 at 93 ("Nothing is to be added to what the text states 

or reasonably implies.").

¶35 This interpretation is reinforced by the surrounding 

blight-elimination statutes in chapter 66. For example, Wis. 

Stat. § 66.1331, commonly known as the "Blighted Area Law," 

requires only "the adoption of a resolution by the local 

legislative body declaring the area to be a blighted area in 

need of redevelopment." § 66.1331(5)(b)1. Similarly, Wis. 

Stat. § 66.1333, commonly known as the "Blight Elimination and 

Slum Clearance Act," requires only "the adoption by the local 

legislative body of a resolution declaring in substance that 

there exists within the city a need for blight elimination, slum 

clearance and urban renewal programs and projects." 

§ 66.1333(3)(a)2.17 Here, Wis. Stat. § 66.1105, commonly known 

as the "Tax Increment Law," requires only the "[a]doption by the 

local legislative body of a resolution which . . . [c]ontains 

findings that . . . [n]ot less than 50%, by area, of the real 

property within the district is . . . a blighted area." 

 

17 In addition to chapters 32 and 66, "blight" is discussed 

in chapter 30, relating to the construction, repair, or 

maintenance of harbor improvements, see Wis. Stat. 

§§ 30.121(3w)(b), 30.30(3)(b); in chapter 60, relating to the 

miscellaneous powers of town housing authorities, see Wis. Stat. 

§ 60.23(27); in chapter 67, relating to the procedure for 

issuing bonds to finance the elimination of blight, see Wis. 

Stat. § 67.05(5)(b); and in chapter 292, relating to exemptions 

for local government units from hazardous waste contamination 

penalties and requirements for properties acquired for the 

purpose of blight elimination, see Wis. Stat. 

§§ 292.11(9)(e)1m.(d), 292.23(2)(d), 292.26(2)(d). 
No. 2015AP1858

23

§ 66.1105(4)(gm)4.a. Thus, the blight-elimination provisions in 

chapter 66 are all similar in that none of them require a 

specified rationale or itemization of supporting evidence.

¶36 Moreover, and perhaps more importantly, this 

interpretation is reasonable because findings of blight are 

legislative determinations that "do[] not raise justiciable 

issues of fact or law." Joint Sch. Dist. No. 1 v. State Appeal 

Bd., 56 Wis. 2d 790, 794, 203 N.W.2d 1 (1973). In Wis. Stat. 

§ 66.1105, "blighted area" means:

An area, including a slum area, in which the 

structures, buildings or improvements, which by reason 

of dilapidation, deterioration, age or obsolescence, 

inadequate provision for ventilation, light, air, 

sanitation, or open spaces, high density of population 

and overcrowding, or the existence of conditions which 

endanger life or property by fire and other causes, or 

any combination of these factors is conducive to ill 

health, transmission of disease, infant mortality, 

juvenile delinquency, or crime, and is detrimental to 

the public health, safety, morals or welfare.

§ 66.1105(2)(ae)1.a. And this is substantially similar to the 

definition of "blighted area" in all of the blight-elimination 

statutes: 

"Blighted area" means any area, including a slum 

area, in which a majority of the structures are 

residential or in which there is a predominance of 

buildings or improvements, whether residential or 

nonresidential, and which, by reason of dilapidation, 

deterioration, age or obsolescence, inadequate 

provision for ventilation, light, air, sanitation, or 

open spaces, high density of population and 

overcrowding, or the existence of conditions which 

endanger life or property by fire and other causes, or 

any combination of these factors, is conducive to ill 

health, transmission of disease, infant mortality, 
No. 2015AP1858

24

juvenile delinquency and crime, and is detrimental to 

the public health, safely, morals or welfare.

Wis. Stat. § 66.1331(3)(a).

"Blighted area" means . . . [a]n area, including 

a slum area, in which there is a predominance of 

buildings or improvements, whether residential or 

nonresidential, which by reason of dilapidation, 

deterioration, age or obsolescence, inadequate 

provision for ventilation, light, air, sanitation, or 

open spaces, high density of population and 

overcrowding, or the existence of conditions which 

endanger life or property by fire and other causes, or 

any combination of such factors id conducive to ill 

health, transmission of disease, infant mortality, 

juvenile delinquency, or crime, and is detrimental to 

the public health, safety, morals or welfare.

Wis. Stat. § 66.1333(2m)(b)1. 

¶37 The key language in each of these statutes is that the 

"area," in its current state, "is detrimental to the public 

health, safety, morals, or welfare." "Public safety, public 

health, [and] morality . . . are some of the more conspicuous 

examples of the traditional application of the police power to 

municipal affairs," Berman v. Parker, 348 U.S. 26, 32 (1954), 

and a "municipality's exercise of its police power has 

traditionally been accorded deference by reviewing courts." 

Nowell v. City of Wausau, 2013 WI 88, ¶46, 351 Wis. 2d 1, 838 

N.W.2d 852. "It is to be remembered that we are dealing with 

one of the most essential powers of government, one that is the 

least limitable." Id.

18

 

18 Legislative exercise of the police power is delegable, 

and its delegation to cities regarding matters of redevelopment 

has been upheld against constitutional attack on numerous 

occasions. See, e.g., David Jeffrey Co. v. City of Milwaukee, 

267 Wis. 559, 590, 66 N.W.2d 362 (1954). 

(continued)
No. 2015AP1858

25

¶38 When exercised, the police power "may, indeed, seem 

harsh in its exercise, [and] usually is on some individual." 

Id. The act of condemnation for the purpose of eliminating 

blight is no exception: "to condemn unoffending 

property . . . is repugnant to the concept of the fundamental 

right of private property." David Jeffrey Co. v. City of 

Milwaukee, 267 Wis. 559, 585, 66 N.W.2d 362 (1954). "[B]ut the 

imperative necessity for [the police power] precludes any 

limitation upon it when not exerted arbitrarily." Nowell, 351 

Wis. 2d 1, ¶46. In this regard, it must also be remembered that 

"the law is directed against slum and blighted areas, not 

individual structures," David Jeffrey Co., 276 Wis. at 585, and 

that "the amount and character of land to be taken for the 

project and the need for a particular tract to complete the 

integrated plan rests in the discretion of the legislative 

branch."19 Berman, 348 U.S. at 35-36; see also David Jeffrey 

 

Here, by its enactment, the legislature has 

declared the policy and fixed the standards for the 

administration of the law. . . . It defines blighted 

area. It gives to cities the responsibility of 

determining the size of an area to be redeveloped, the 

costs involved and the details of the redevelopment 

plan, the method and mechanics of clearance, and the 

determination of future uses. Obviously, the 

legislature could not make specific provisions for all 

of these items, for the very reason that the size, 

extent, and character of the blighted areas, and the 

plans for redevelopment, differ in each city where the 

slum and blight condition exists.

Id. See also Hammermill, 58 Wis. 2d at 57-59.

19 In fact, Wis. Stat. § 66.1331 explicitly states:

(continued)
No. 2015AP1858

26

Co., 267 Wis. at 578 ("The use of all property is subject to the 

police power of the state, to be exercised for the protection of 

the health, safety, and general welfare of the public, either 

 

Findings and declaration of necessity. It is 

found and declared that there have existed and 

continue to exist in citied within the state, 

substandard, insanitary, deteriorated, slum and 

blighted areas which constitute a serious and growing 

menace, injurious and inimical to the public health, 

safety, morals and welfare of the residents of the 

state. The existence of these areas contributes 

substantially and increasingly to the spread of 

disease and crime . . . constitutes an economic and 

social liability, substantially impairs or arrests the 

sound growth of cities, and retards the provision of 

housing accommodations. This menace is beyond remedy 

and control solely by regulatory process in the 

exercise of the police power and cannot be dealt with 

effectively by the ordinary operations of private 

enterprise without the aids provided in this section. 

The acquisition of property for the purpose of 

eliminating substandard, insanitary, deteriorated, 

slum or blighted conditions or preventing recurrence 

of these conditions in the area, the removal of 

structures and improvement of sites, the disposition 

of the property for redevelopment incidental to these 

activities, and any assistance which may be given by 

cities or any other public bodies, are public uses and 

purposes for which public money may be expended and 

the power of eminent domain exercised. The necessity 

in the public interest for the provision of this 

section is declared as a matter of legislative 

determination.

§ 66.1331(2); see also Wis. Stat. § 66.1333(2). The fact that 

these specific legislative findings are absent from Wis. Stat. 

§ 66.1105 does not surprise us, or cause us concern, however, 

because the Tax Increment Statute simply enables municipalities 

to work with private parties on public improvements it would 

otherwise be authorized to undertake itself under §§ 66.1331 and 

66.1333.
No. 2015AP1858

27

directly or through subordinate agencies to whom the exercise of 

such prerogative may be entrusted.").

¶39 "Legislative determination[s] of public policy 

questions [do] not raise justiciable issues of fact or law." 

Joint Sch. Dist. No. 1, 56 Wis. 2d at 794; see also Buhler v. 

Racine Cty., 33 Wis. 2d 137, 146, 146 N.W.2d 403 (1966) 

("However, since zoning is a legislative function, judicial 

review is limited and judicial interference restricted to cases 

of abuse of discretion, excess of power, or error of law."). 

This is because de novo review of a legislative determination 

violates the doctrine of separation of powers. See Joint Sch. 

Dist. No. 1, 56 Wis. 2d at 795; Buhler, 33 Wis. 2d at 147 

("[T]he court, because of the fundamental nature of its power, 

cannot substitute its judgment for that of the zoning authority 

in the absence of statutory authorization."); see also Bisenius 

v. Karns, 42 Wis. 2d 42, 53-54, 165 N.W.2d 377 (1969) ("[O]nce 

within the area of proper exercise of police power, it is for 

the legislature to determine what regulations, restraints or 

prohibitions are reasonably required to protect the public 

safety."). Therefore, a finding of blight under Wis. Stat. 

§ 66.1105(4)(gm)4.a. is not susceptible to an action for 

declaratory judgment because, as a legislative determination, it 

does not give rise to justiciable issues of fact or law.20 

 

20 We note the dissent's focus on our discussion of Joint 

School Dist. No. 1 v. State Appeal Bd., 56 Wis. 2d 790, 203 

N.W.2d 1, and Buhler v. Racine Cty., 33 Wis. 2d 137, 146 

N.W.2d 403 (1966)——which we cite for the broad proposition that 

legislative findings, in general, do not raise justiciable 

(continued)
No. 2015AP1858

28

¶40 Thus, Plaintiffs have failed to state claims upon 

which relief may be granted because a court cannot issue a 

declaration regarding the wisdom of a legislative determination. 

See, e.g., Aicher v. Wis. Patients Compensation Fund, 2000 WI 

98, ¶57, 237 Wis. 2d 99, 613 N.W.2d 849 ("It is not our role to 

determine the wisdom or rationale underpinning a particular 

legislative pronouncement."); Gottlieb v. City of Milwaukee, 33 

Wis. 2d 408, 415, 147 N.W.2d 633 (1967) ("We are not concerned 

with the wisdom of what the legislature has done."); Buhler, 33 

Wis. 2d at 146-47.21

 

issues of fact or law——and its misapprehension of our 

discussion of Berman v. Parker, 348 U.S. 26 (1954), David 

Jeffrey Co., 267 Wis. 599, and Nowell v. City of Wausau, 2013 WI 

88, ¶46, 351 Wis. 2d 1, 838 N.W.2d 852——which we rely on for the 

proposition that a finding of blight under Wis. Stat. 

§ 66.1105(4)(gm)4.a. is a legislative one. From this, we are 

compelled to conclude that the dissent does not seem to 

understand the significance of the difference between 

legislative facts/findings and judicial facts/findings. See, 

e.g., Ann Woolhandler, Rethinking the Judicial Reception of 

Legislative Facts, 41 Vand. L. Rev. 111, 113-16 (1988). 

21 Because we conclude that the findings of blight are 

legislative determinations, we need not address Plaintiffs' 

coordinate claims regarding the public purpose doctrine, which 

assume that these determinations are reducible to judicial fact 

finding ("If a [TID] ostensibly created to address issues of 

blight does not actually serve to eliminate blight, it lacks a 

public purpose and therefore represents an unconstitutional 

expenditure of public funds."). 
No. 2015AP1858

29

2. Assertions under Wis. Stat. § 66.1105(4m)(b)2.

a. The substantive law

¶41 Wisconsin Stat. § 66.1105(4m) states, in relevant 

part, as follows:

Joint review board. (a) Any city that seeks to 

create a tax incremental district, amend a project 

plan, [or] have a district's tax incremental base 

redetermined under sub (5)(h) . . . shall convene a 

temporary joint review board under this paragraph, or 

a standing joint review board under sub (3)(g), to 

review the proposal. . . .

(b) 1. The board shall review the public 

record, planning documents and the resolution passed 

by the local legislative body or planning commission 

under sub (4)(gm) . . . .

2. Except as provided in subd. 2m., no tax 

incremental district may be created and no project 

plan may be amended unless the board approves the 

resolution adopted under sub (4)(gm) . . . by a 

majority vote within 30 days after receiving the 

resolution. . . . The board may not approve the 

resolution under this subdivision unless the board's 

approval contains a positive assertion that, in its 

judgment, the development described in the documents 

the board has reviewed under subd. 1. would not occur 

without the creation of a tax incremental district.

§ 66.1105(4m)(a), (b)1.-2.

b. The allegations in Plaintiffs' complaint

¶42 With regard to this claim, Plaintiffs' complaint 

alleges the following facts:

44. [D]evelopment plans unrelated to the 

Confluence Project were already underway with respect 

to certain of the historic properties within TID #10. 

For example, the Kline Department Store building was 

in the hands of a new owner who had publicly announced 

a redevelopment plan for that property. And the owner 

of the historic property at 2 South Barstow Street had 

already entered into an agreement with the City for 
No. 2015AP1858

30

the renovation and redevelopment of that building with 

City-negotiated requirements that its historic 

character be preserved.

45. . . . The City's decision . . . to fund the 

Confluence Project . . . forced the alternative plans 

to be abandoned . . . . 

53. On September 26, 2014, the JRB adopted a 

resolution approving Amendment No. 3 to TID #8.

54. The statement in the resolution that in the 

judgment of the JRB "the development described in the 

Amendment [to TID #8] would not occur without the 

amendment" is neither supported by record evidence nor 

factually correct.

60. On October 22, 2014, the JRB adopted a 

Resolution approving the creation of TID #10.

61. The statement in the Resolution that in the 

judgment of the JRB "the development described in the 

Project Plan would not occur without the creation 

[presumably of TID #10]" is neither supported by 

record evidence nor is factually correct. 

76. . . . The JRB did not "review the public 

record, planning documents, and the resolution passed 

by" the City Council for Amendment No 3. to TID 

#8 . . . ; it considered only a conclusory three-page 

"Joint Review Board Report."
No. 2015AP1858

31

87. . . . The JRB did not "review the public 

record, planning documents and the resolution passed 

by" the City Council [for creation of TID #10].[22]

(Alterations in ¶¶54 and 61 in original.)

c. These allegations are insufficient to state a claim upon 

which relief may be granted.

¶43 To determine whether these allegations state a claim 

upon which relief may be granted, we must interpret the statute; 

specifically, we must determine what the statute means when it 

requires that that the JRB's "approval contain[] a positive 

assertion." The interpretation of a statute is a question of 

law that we review de novo. See Estate of Miller, 378 

Wis. 2d 358, ¶25.

¶44 Plaintiffs argue that redevelopment in the areas in 

question would have occurred without the TIDs and that, "when 

the legislature established conditions for diverting tax money 

for the benefit of private parties, it intended to permit such 

diversion only where those conditions actually exist." In this 

regard, "[c]ourts are more than capable of evaluating a factual 

determination made by a municipal body," and "no Wisconsin court 

has ever held that declaratory judgment actions may not be used 

 

22 These allegations span the first and second claims of

Plaintiffs' complaint, which address TID 8 and TID 10, 

respectively. With regard to both claims, Plaintiffs' complaint 

also alleged that the JRB could not have "reasonably concluded" 

"that development would not occur . . . without tax incremental 

financing." This is a legal conclusion which we disregard 

because "legal conclusions stated in the complaint are not 

accepted as true, and [] are insufficient to enable a complaint 

to withstand a motion to dismiss." Data Key Partners, 356 

Wis. 2d 665, ¶19.
No. 2015AP1858

32

to challenge" TIDs. Moreover, where the "development would 

occur in the area without a TID, the TIDs do not serve [a] 

public purpose[]." The City argues that the JRB's "but for" 

assertions are legislative acts and that Plaintiffs "failed to 

plead sufficient facts to satisfy the bedrock separation-ofpowers principle that challenges to state and local legislative 

acts should not be resolved by the judicial process if they are 

'fairly debatable.'" In this regard, "[l]egislative acts enjoy 

a high level of judicial deference" and the complaint "does not 

demonstrate the duly authorized . . . Joint Review Board 

[determinations] were clearly in error." Moreover, the 

complaint "does not demonstrate it is 'clear and palpable that 

there can be no benefit to the public'"; thus, Plaintiffs have 

not stated a claim for violation of the public purpose doctrine. 

We conclude that Plaintiffs' complaint was properly dismissed as 

to declaratory judgment on this issue because the JRB's "but 

for" assertions are legislative determinations that do not 

present justiciable issues of fact or law.

¶45 "[S]tatutory interpretation begins with the language 

of the statute." Kalal, 271 Wis. 2d 633, ¶45. Here, the 

statute states, in relevant part, as follows:

[N]o tax incremental district may be created and no 

project plan may be amended unless the board approves 

the resolution adopted under sub. (4)(gm) . . . . The 

board may not approve the resolution under this 

subdivision unless the board's approval contains a 

positive assertion that, in its judgment, the 

development described in the documents the board has 

reviewed under subd. 1. would not occur without the 

creation of a tax incremental district.
No. 2015AP1858

33

Wis. Stat. § 66.1105(4m)(b)2. "All words and phrases shall be 

construed according to common and approved usage; but technical 

words and phrases and others that have a peculiar meaning in the 

law shall be construed according to such meaning." Wis. Stat. 

§ 990.01(1); see also Kalal, 271 Wis. 2d 633, ¶45; Scalia & 

Garner, supra ¶32 at 69-77 ("Ordinary-Meaning Canon"). 

¶46 "Positive assertions" is not a defined term in the 

statute. The word "assertion" is, however, defined in Black's 

Law Dictionary: "1. A declaration[23] or allegation.[24] 2. A 

person's speaking, writing, acting, or failing to act with the 

intent of expressing a fact or opinion; the act or an instance 

of engaging in communicative behavior." Assertion Black's Law 

Dictionary, supra ¶33 at 139. Given this ordinary meaning of 

"assertion," the plain language of the statute does not require 

that the JRB itemize the evidence in the record that supports 

its "but for" assertion.

¶47 This plain language interpretation is supported by our 

analysis above because, as with the City Common Council's 

finding of blight, "[t]he Joint Review Board's task was to look 

at the TIF District as a whole and determine whether development 

would occur without the use of tax incremental financing." 

State ex rel. Olson v. City of Baraboo Joint Review Bd., 

 

23 "Declaration" is defined: "A formal statement, 

proclamation, or announcement . . . ." Declaration Black's Law 

Dictionary 493 (10th ed. 2014).

24 "Allegation" is defined: "A declaration that something is 

true . . . ." Allegation id. at 90.
No. 2015AP1858

34

2002 WI App 64, ¶29, 252 Wis. 2d 628, 643 N.W.2d 796. The issue 

is not whether one owner of one structure plans to redevelop one 

property, because "the piecemeal approach, the [remediation] of 

individual structures . . . would be only [] palliative." 

Berman, 348 U.S. at 34. Rather, the redevelopment projects 

permitted under the statute are of an integrated nature so as to 

prevent the recurrence of blight. This determination is 

holistic and wholly within the discretion of the legislature. 

Therefore, a "but for" assertion under Wis. Stat. 

§ 66.1105(4m)(b)2. is not susceptible to an action for 

declaratory judgment because, as a legislative determination, it 

does not give rise to justiciable issues of fact or law.

¶48 Thus, Plaintiffs have failed to state claims upon 

which relief may be granted because a court cannot issue a 

declaration regarding the wisdom of a legislative determination. 

See, e.g., Aicher, 237 Wis. 2d 99, ¶57 ("It is not our role to 

determine the wisdom or rationale [of] a particular legislative 

pronouncement."); Gottlieb, 33 Wis. 2d at 415 ("We are not 

concerned with the wisdom of what the legislature has done."); 

Buhler, 33 Wis. 2d at 146-47.

3. Cash grants under Wis. Stat. § 66.1105(2)(f)1.a.

a. The substantive law

¶49 Wisconsin Stat. § 66.1105(2)(f)1. states, in relevant 

part, as follows:

"Project costs" mean any expenditures made or 

estimated to be made or monetary obligations incurred 

or estimated to be incurred by the city which are 

listed in a project plan as costs of public works or 
No. 2015AP1858

35

improvements within a tax incremental district . . . . 

"Project costs" include:

a. Capital costs including, but not limited to, 

the actual costs of the construction of public works 

or improvements, new buildings, structures, and 

fixtures; the demolition, alteration, remodeling, 

repair or reconstruction of existing buildings, 

structures and fixtures other than the demolition of 

listed properties as defined in s. 44.31(4) . . . .

§ 66.1105(2)(f)1.a. Section 44.31(4) defines "listed property" 

to mean "property which is listed on the national register of 

historic places in Wisconsin or the state register of historic 

places, or both." Wis. Stat. § 44.31(4).

b. The allegations in Plaintiffs' complaint

¶50 With regard to this claim, Plaintiffs' complaint 

alleges the following facts:

42. . . . The buildings that have been purchased 

and subsequently demolished by the developer include 

the Kline Department Store, which was listed on the 

National Register of Historic Places. Also demolished 

were several other buildings within the Confluence 

Commercial District, also on the National Register.

43. A substantial part of the development costs 

actually incurred by the developer thus includes the 

costs of demolition as well as the purchase price of 

the Kline Department Store building and other 

buildings that are listed properties pursuant to Wis. 

Stat. § [44.31(4)]. 

46. The Project Plan for TID #10 indicates that 

$10,400,000 of the project costs will come in the form 

of "contributions"——i.e. cash payments from the City——

to the Confluence developer. These contributions are 

to be paid in the form of cash grants to the 

partnership to compensate it for development costs. 

The funds . . . depend upon its achieving specified 

milestones in the project, but they are paid to the 

developer in a lump sum once those milestones have 

been reached. Neither the Project Plan for TID #10 
No. 2015AP1858

36

nor the agreements with the developer clearly provide 

that the lump sum grants may not be used by the 

Confluence developer to reimburse itself for some or 

all of the costs of purchasing then demolishing listed 

properties that it had already incurred.

94. . . . Given the lump sum character of the 

developer payments, there is in fact no way to assure 

that the payments have been used as reimbursement for 

certain already incurred costs, and not used as 

reimbursement for others.[25]

c. These allegations are insufficient to state a claim upon 

which relief may be granted.

¶51 To determine whether these allegations state a claim 

upon which relief may be granted we must interpret the statute. 

The interpretation of a statute is a question of law that we 

review de novo. See Estate of Miller, 378 Wis. 2d 358, ¶25.

¶52 Plaintiffs argue that they "alleged that TIF funds for 

TID #10 were in fact being used to reimburse the developer for 

the acquisition and destruction of historic properties," 

contrary to Wis. Stat. § 66.1105(2)(f)1.a., and that to conclude 

otherwise would mean that "reimbursement for the destruction of 

historic buildings can be challenged only when TID funds are 

expressly earmarked for demolition." The City argues that 

 

25 With regard to this claim, Plaintiffs' complaint also 

alleged the following legal conclusions: (1) that, under Wis. 

Stat. § 66.1105(2)(f)1.a., "tax incremental funds cannot be used 

to compensate a developer for the costs associated with the 

destruction of listed properties"; and (2) that "the TID #10 

project plan . . . unlawfully reimburses the developer for such 

costs." We disregard Plaintiffs' legal conclusions because 

"legal conclusions stated in the complaint are not accepted as 

true, and [] are insufficient to enable a complaint to withstand 

a motion to dismiss." Data Key Partners, 356 Wis. 2d 665, ¶19.
No. 2015AP1858

37

Plaintiffs' claim here fails because it is moot, as the 

buildings in question have already been demolished, and because 

the complaint "fails to plead facts demonstrating any connection 

between TIF funds and historic building acquisition or 

demolition." We conclude that Plaintiffs' third claim was 

properly dismissed because it does not allege facts which 

plausibly establish that the City's cash grant for TID 10 was 

used to reimburse the developer's costs associated with

demolishing historic buildings.

¶53 "[S]tatutory interpretation begins with the language 

of the statute." Kalal, 271 Wis. 2d 633, ¶45. Wisconsin Stat. 

§ 66.1105(2)(f) states, in relevant part, as follows: 

"Project costs" include . . . [c]apital costs 

including . . . the demolition, alteration, 

remodeling, repair or reconstruction of existing 

buildings, structures and fixtures other than the 

demolition of [property which is listed on the 

national register of historic places in Wisconsin or 

the state register of historic places, or both].

§ 66.1105(2)(f)1.a. The plain language of this provision 

establishes that it would be a violation of the statute for a 

developer to use money allocated for "project costs" to pay for 

the demolition of historic buildings. 

¶54 This is not, however, what Plaintiffs alleged. 

Although Plaintiffs alleged that the $10.4 million cash grant 

was for "project costs," they did not allege facts which 

establish that the developer in fact used the money from the 

cash grant to pay for the demolition of Kline Department Store 

or other historic buildings. Nor did they allege facts which 
No. 2015AP1858

38

demonstrate that the developer was likely to do so. Plaintiffs 

alleged only that "there is . . . no way to assure" that the 

developer did not use the cash grant to pay for the demolition 

of historic buildings. 

¶55 Thus, Plaintiffs' allegations fail to state a claim 

upon which relief can be granted because, even if taken as true, 

they establish only the possibility that funds could be used to 

pay for the demolition of historic buildings. This is not 

"enough heft to 'sho[w] that the pleader is entitled to 

relief.'" Data Key Partners, 356 Wis. 2d 665, ¶26 (alteration 

in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 

557 (2007)). "'[I]t gets the complaint close to stating a 

claim, but without some further factual enhancement it stops 

short of the line between possibility and plausibility of 

entitle[ment] to relief.'" Id. (second alteration in original) 

(quoting Bell Atl. Corp., 550 U.S. at 557).

4. Cash grants under Article VIII, Section 1

a. The substantive law

¶56 Article VIII, Section 1 of the Wisconsin Constitution 

states, in relevant part, as follows:

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.
No. 2015AP1858

39

b. The allegations in Plaintiffs' complaint

¶57 With regard to this claim, Plaintiffs' complaint 

alleges the following facts:

42. The developer purchased the properties on 

the Confluence Project site in three separate 

transactions in May, 2012, April, 2014, and June, 

2014 . . . .

106. [T]he project plans provide for millions of 

dollars of incremental TID taxes to be paid directly 

to the owner of the property within the TID, with no 

meaningful restrictions except that the developer use 

them to reimburse itself for "project costs."[26]

c. These allegations are insufficient to state a claim upon 

which relief may be granted.

¶58 To determine whether these allegations state a claim 

upon which relief may be granted we must interpret the statute 

and Article VIII, Section 1 of the Wisconsin Constitution 

(hereinafter the "Uniformity Clause"). The interpretation of a 

statute is a question of law that we review de novo. See Estate 

of Miller, 378 Wis. 2d 358, ¶25. The interpretation of a 

constitutional provision is also a question of law that we 

 

26 With regard to this claim, Plaintiffs' complaint also 

alleged that "[t]his arrangement functions as a tax rebate or 

tax credit, and . . . constitutes a violation of the Uniformity 

Clause . . . [b]ecause the developer here is being taxed at a 

more favorable rate than an owner of identically-assessed 

property elsewhere." This is a legal conclusion, which we 

disregard because "legal conclusions stated in the complaint are 

not accepted as true, and [] are insufficient to enable a 

complaint to withstand a motion to dismiss." Data Key Partners, 

356 Wis. 2d 665, ¶19.
No. 2015AP1858

40

review de novo. Madison Teachers, Inc. v. Walker, 2014 WI 99, 

¶13, 358 Wis. 2d 1, 851 N.W.2d 337. 

¶59 Plaintiffs argue that the TIDs violate the Uniformity 

Clause because "the owner is paying the same formal rate as 

everyone else, but is getting paid a reimbursement that lowers 

its effective rate"; thus, the cash grants constitute "an 

unconstitutional tax rebate." Plaintiffs argue that this is an 

as-applied challenge because they "seek[] only to invalidate 

these particular TIDs" and "[a] ruling for [Plaintiffs] on this 

claim would not bar all cash grants under [Wis. Stat.] 

§ 66.1105(2)(f)2.d." The City argues that the complaint "does 

not plead sufficient facts to satisfy the burden necessary to 

challenge the constitutional validity of a state statute" 

because "[i]t is not sufficient to say reasonable minds may 

disagree"; rather "[a]ny doubt as to constitutionality must be 

resolved in favor of constitutionality." It also argues that 

Plaintiff's claim is a facial challenge, and that Plaintiffs 

have not successfully distinguished Sigma Tau, where this court

upheld the Tax Increment Law against such a challenge. We 

conclude that Plaintiffs' fourth claim was properly dismissed 

because it does not allege facts which plausibly establish that 

the cash grants are intended or used to pay the property taxes 

of owner-developers.

¶60 As a preliminary matter, we conclude that Plaintiffs 

are attempting to raise an as-applied challenge to the 

constitutionality of cash grant disbursements pursuant to Wis. 

Stat. § 66.1105(2)(f)2.d. Our prior cases distinguish between 
No. 2015AP1858

41

facial and as-applied challenges as follows: a facial challenge 

is "[a] claim that a statute . . . always operates 

unconstitutionally"; an as-applied challenge is "a claim that a 

statute is unconstitutional on the facts of a particular case or 

to a particular party." Olson v. Town of Cottage Grove, 

2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, 749 N.W.2d 211 (citing 

Black's Law Dictionary); see also Tammy W-G. v. Jacob T., 2011 

WI 30, ¶¶46-48, 333 Wis. 2d 273, 797 N.W.2d 854; State v. Wood, 

2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63. This 

distinction is significant because, although the presumption 

that a statute is constitutional applies in both facial and asapplied challenges, in an as-applied challenge "there is no 

presumption the statute has been applied in a constitutional 

manner." Milewski v. Town of Dover, 2017 WI 79, ¶15, 377 

Wis. 2d 38, 899 N.W.2d 303. 

¶61 Here, Plaintiffs' claim is that cash grants to the 

owner-developer violate the Uniformity Clause because they 

effectively reimburse the owner-developer for property taxes 

paid on the project property. These allegations have some 

characteristics of both a facial challenge and an as-applied 

challenge, as defined in our prior cases. In other words, one 

could argue that the challenge is either. On the one hand, it 

has the character of a facial challenge because, if Plaintiffs 

are successful, the statute would be invalidated beyond these 

particular TIDs; that is, all cash grants to all ownerdevelopers would be unconstitutional. On the other hand, it is 

more of an as-applied challenge because, if Plaintiffs are 
No. 2015AP1858

42

successful, this provision of the statute would not always 

operate unconstitutionally; that is, Plaintiffs' allegations do 

not challenge cash grants to developers who do not own the land 

being developed. Thus, Plaintiffs' claim does not fit clearly 

within one or the other of the traditional, categorical 

definitions for constitutional challenges. 

¶62 Some have reasoned that challenges like this exist 

because there is no "sharp, categorical distinction between 

facial and as-applied . . . challenges to the validity of 

statutes." Richard H. Fallon, Jr., As-Applied and Facial 

Challenges and Third-Party Standing, 113 Harvard L. Rev. 1321, 

1336 (2000). Fallon opines that this is because "a litigant 

must always assert that the statute's application to her case 

violates the [c]onstitution"; thus, "determinations that 

statutes are facially invalid properly occur only as logical 

outgrowths of rulings on whether statutes may be applied to 

particular litigants on particular facts." Id. at 1327-28. 

Here, we conclude that Plaintiffs' claim is an as-applied 

challenge because, even if Wis. Stat. § 66.1105(2)(f)2.d. is 

invalid as Plaintiffs claim, the constitutional infirmity would 

not invalidate all applications of this provision, nor would it 

render the remainder of the statute invalid.

¶63 We have once before upheld Wis. Stat. § 66.1105 

against a constitutional challenge. See Sigma Tau, 93 

Wis. 2d 392. In Sigma Tau we concluded that "the Tax Increment 

Law is constitutional" on its face because "[a]ll tax payers 

within the territorial limits of each . . . district [] continue 
No. 2015AP1858

43

to be taxed at a uniform rate based upon valuations uniformly 

arrived at." Id. at 412.27 At that time, however, the Tax 

Increment Law did not incorporate the particular provision at 

issue here,28 and a statute once held to be constitutional, is 

not "forever and always" constitutional, "regardless of any 

legislative alterations."29 Voters, 376 Wis. 2d 479, ¶46. Thus, 

 

27 In doing so, we distinguished two of our prior cases. 

See State ex rel. La Follette v. Torphy, 85 Wis. 2d 94, 108, 270 

N.W.2d 187 (1978) (concluding that the Improvements Tax Relief 

Law violated the Uniformity Clause because its rebate credits 

for certain property owners "lead[] to the indisputable 

conclusion that taxpayers owning equally valuable property will 

ultimately be paying disproportionate amounts of real estate 

taxes."); Gottlieb v. City of Milwaukee, 33 Wis. 2d 408, 428-29, 

147 N.W.2d 633 (1967) (concluding that the Urban Redevelopment 

Law violated the Uniformity Clause because its suspension of 

property taxes for redevelopment corporations constituted a 

partial exemption). We do not perceive these cases to be 

directly applicable to the issue here presented and therefore do 

not analyze them further. 

We note, however, that, as we pointed out in Torphy, "[t]he 

initial question is whether the [law] is a tax statute subject 

to the uniformity clause." 85 Wis. 2d at 104; see also State ex 

rel. Harvey v. Morgan, 30 Wis. 2d 1, 10, 139 N.W.2d 585 (1966) 

("The [question of whether chapter 580 violated the uniformity 

clause] is relevant only if Ch. 580 is in fact a tax law."). 

Neither party has presented arguments regarding whether the Tax 

Increment Law is a tax law and, for the purposes of our 

analysis, we assume without deciding that it is.

28 See 2003 Wis. Act 126, § 3.

29 In this regard, we note that the legislature made 

numerous amendments to Wis. Stat. § 66.1105 since the 2013-14

version considered herein. See 2015 Wis. Act 60, §§ 32-36; 2015 

Wis. Act 75; 2015 Wis. Act 96; 2015 Wis. Act 254, §§ 1-7; 2015 

Wis. Act 255; 2015 Wis. Act 256, §§ 3-18; 2015 Wis. Act 257, 

§§ 7-12; 2017 Wis. Act 58, §§ 19-21.
No. 2015AP1858

44

Sigma Tau is not dispositive on the issue here presented and we 

undertake a de novo analysis.30

¶64 "[S]tatutory interpretation begins with the language 

of the statute." Kalal, 271 Wis. 2d 633, ¶45. Wisconsin Stat. 

§ 66.1105(2)(f)2. states, in relevant part, as follows:

Notwithstanding subd. 1., none of the following 

may be included as project costs for any tax 

incremental district for which a project plan is 

approved . . .

d. Cash grants made by the city to owners, 

lessees, or developers of land that is located within 

the tax incremental district unless the grant 

recipient has signed a development agreement with the 

city, a copy of which shall be sent to the appropriate 

joint review board or, if that joint review board has 

been dissolved, retained by the city in the official 

records for that tax incremental district.

Wis. Stat. § 66.1105(2)(f)2.d. Subdivision 1. lists the costs 

that are "include[d]" within the definition of "[p]roject 

costs": capital costs, financing costs, real property assembly 

costs, professional service costs, imputed administrative costs, 

relocation costs, organizational costs, project plan 

implementation costs, infrastructure construction or alteration 

costs, and lead contamination costs. Wis. Stat. 

§ 66.1105(2)(f)1.a.—n. This list does not include property 

taxes; thus, the plain language of the statute does not 

affirmatively permit the use of cash grants to pay property 

 

30 Our analysis here, however, does not in any way abrogate 

or overrule Sigma Tau Gamma Fraternity House Corp. v. City of 

Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85 (1980).
No. 2015AP1858

45

taxes. We presume, however——absent some textual evidence that 

the legislature intended the word "include" to be interpreted as 

a term of limitation——that the legislature's use of "include" 

denominates a nonexclusive list. See State v. Popenhagen, 

2008 WI 55, ¶¶43-47, 309 Wis. 2d 601, 749 N.W.2d 611. Thus, the 

plain language of the statute also does not affirmatively 

prohibit use of cash grants allocated for projects costs to pay 

property taxes.

¶65 The fact that a statute does not affirmatively 

prohibit a possibility is not, however, the standard. Rather,

[a]ll legislative acts are presumed constitutional and 

we must indulge every presumption to sustain the law. 

Any doubt that exists regarding the constitutionality 

of the statute must be resolved in favor of its 

constitutionality. Consequently, it is insufficient 

for a party to demonstrate that the statute's 

constitutionality is doubtful or that the statute is 

probably unconstitutional. Instead, the presumption 

can be overcome only if the party establishes the 

statute's unconstitutionality beyond a reasonable 

doubt.

Madison Teachers, Inc., 358 Wis. 2d 1, ¶13 (citations omitted). 

Thus, to establish that a statute violates the Uniformity 

Clause, a plaintiff must demonstrate beyond a reasonable doubt 

that the statute contravenes the rule that "taxation shall be 

uniform." Wis. Const. art. VIII, § 1. This is not what 

Plaintiffs alleged. Plaintiffs did not allege facts which 

establish that cash grants are intended to reimburse ownerdevelopers for property taxes. Nor did they allege facts which 

establish that owner-developers in fact use cash grants to pay 

property taxes, or that owner-developers are likely to do so. 
No. 2015AP1858

46

Plaintiffs alleged only that a requirement that owner-developers 

use cash grants for "project costs" imposes "no meaningful 

restrictions."

¶66 Similarly, although Plaintiffs alleged that "millions 

of dollars of incremental TID taxes [will] be paid directly to 

the owner of property within the TID," they did not allege facts 

which establish that the developer here in fact used that money

to pay its property taxes. Nor did they allege facts which 

demonstrate that the developer here was likely to do so. 

Plaintiffs alleged only that the project plan imposes "no 

meaningful restrictions except that the developer use [the 

money] to reimburse itself for 'project costs.'" 

¶67 Thus, Plaintiffs' allegations fail to state a claim 

upon which relief can be granted because, even if taken as true, 

they establish only that the statute does not explicitly exclude 

property taxes from the definition of "project costs"; in other 

words, that the statute does not preclude the possibility that 

developers could use cash grants to pay property taxes. This is 

not sufficient to state a constitutional challenge under the 

Uniformity Clause because such a possibility does not even 

amount to an allegation that the statute is "probably 

unconstitutional," let alone unconstitutional beyond a 

reasonable doubt. Madison Teachers, Inc., 358 Wis. 2d 1, ¶13. 

Moreover, Plaintiffs' allegations fail to state a claim upon 

which relief can be granted because, even if taken as true, they 

establish only the possibility that the developer here could use 

the funds to pay property taxes. This is not "enough heft to 
No. 2015AP1858

47

'sho[w] that the pleader is entitled to relief.'" Data Key 

Partners, 356 Wis. 2d 665, ¶26 (alteration in original) (quoting 

Bell Atl. Corp., 550 U.S. at 557). "'[I]t gets the complaint 

close to stating a claim, but without some further factual 

enhancement it stops short of the line between possibility and 

plausibility of entitle[ment] to relief.'" Id. (second 

alteration in original) (quoting Bell Atl. Corp., 550 U.S. at 

557). 

¶68 In sum, Plaintiffs' complaint was properly dismissed 

as to declaratory judgment because it fails to state claims upon 

which relief may be granted. The first and second counts fail 

because the City Common Council's findings of blight and the 

JRB's "but for" assertions are legislative determinations that 

do not present justiciable issues of fact or law; the third

count fails because it does not allege facts which plausibly 

establish that the City's cash grant for TID 10 was used to 

reimburse the developer's costs associated with demolishing 

historic buildings; and the fourth count fails because it does 

not allege facts which plausibly establish that cash grants are 

intended or used to pay developers' property taxes.

C. Certiorari Review

¶69 We conclude, however, that Plaintiffs' first and 

second claims are reviewable under certiorari. Plaintiffs argue 

that a "preference for certiorari review is an abdication of 

judicial responsibility," and that it is insufficient because it 

"would entail no discovery or other opportunity to assess 
No. 2015AP1858

48

whether . . . [the] incantations of 'blight' and 'but for' 

development are accurate."31 The City argues that common law 

 

31 Plaintiffs cite three cases in support of their argument 

that these are determinations susceptible to judicial fact 

finding, none of which actually support their argument. In 

Fenton v. Ryan, we concluded that whether a proposed village 

possesses the requisite attributes is a question of judicial 

character because, if the attributes are not present, "the 

uniformity of town and county government guaranteed by the 

Constitution is invaded," 140 Wis. 353, 359, 122 N.W.2d 756 

(1909); such questions of constitutionality are judicial 

questions. See, e.g., Gottlieb, 33 Wis. 2d at 415-16 ("We are 

not concerned with the wisdom of what the legislature has done. 

We are judicially concerned only when the statute clearly 

contravenes some constitutional provision."). In Town of Mt. 

Pleasant v. City of Racine, we held that a city's determination 

of its own boundaries was a legislative determination, and the 

judicial question was limited to whether the boundary lines were 

"reasonable in the sense that they were not fixed arbitrarily, 

capriciously, or in the abuse of discretion." 24 Wis. 2d 41, 

46, 127 N.W.2d 757 (1964) (citing Town of Fond du Lac v. City of 

Fond du Lac, 22 Wis. 2d 533, 126 N.W.2d 201 (1964)). And, in 

Bechthold v. City of Wauwatosa, the petitioners challenged the 

city's adherence to the procedure for advertising bids for 

street repair, and the judicial questions were whether strict or 

substantial compliance was required, and whether the undisputed 

facts demonstrated that the city had complied, 228 Wis. 544, 

551-58, 277 N.W. 657 (1938); Plaintiffs here do not dispute that 

the City adhered to the correct procedure.

Plaintiffs also claim that "in at least three published 

cases, TIF actions were brought as declaratory actions." Two of 

these cases are distinguishable on the basis that they sought a 

declaration of constitutionality, which, as noted above, is a 

proper question for the court. See Kirley, 172 Wis. 2d 191; 

Gottlieb, 33 Wis. 2d 408. The third case never reached the 

declaratory question, and thus provides no support for 

Plaintiffs' argument. See Town of Baraboo v. Vill. of West 

Baraboo, 2005 WI App 96, ¶¶31-37, 283 Wis. 2d 479, 699 

N.W.2d 610. Plaintiffs' reliance on Kaiser v. City of Mauston

is similarly misplaced because that case addressed the validity 

of an ordinance under a statute, which is not the issue here. 

99 Wis. 2d 345, 354-55, 299 N.W.2d 259 (1980).
No. 2015AP1858

49

certiorari is the applicable standard of review because it is a 

mechanism by which a court may test the validity of a decision 

rendered by a municipality; is appropriate where, as here, no 

statutory appeal process has been created; is the proper 

standard to review local legislative functions; and is 

consistent with the longstanding policy that "declaratory relief 

is disfavored if there is a 'speedy, effective and adequate' 

alternative remedy." We conclude that certiorari review is 

appropriate and adequate to address Plaintiffs' claims regarding 

the municipality's findings of blight and "but for" assertions 

because certiorari review is the mechanism by which a court 

should test the validity of a municipality's legislative 

determinations.

¶70 "It is well established in this state that where there 

are no statutory provisions for judicial review, the action of a 

board or commission may be reviewed by way of certiorari." 

State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185 

N.W.2d 306 (1971). No statutory appeal process has been created 

to review the formation of a TID; therefore, certiorari review 

of the decisions of both the City Common Council and the JRB is 

appropriate. See Wis. Stat. § 66.1105; Olson, 252 Wis. 2d 628, 

¶32 (Roggensack J., dissenting); see also Ottman v. Town of 

Primrose, 2011 WI 18, ¶34, 332 Wis. 2d 3, 796 N.W.2d 411 

("Certiorari is a mechanism by which a court may test the 

validity of a decision rendered by a municipality.").
No. 2015AP1858

50

¶71 Where, as here, there is no express statutory method 

of review, common law certiorari applies. Ottman, 332 

Wis. 2d 3, ¶35.

When conducting common law certiorari review, a court 

reviews the record compiled by the municipality and 

does not take any additional evidence on the merits of 

the decision. The courts review is limited to: (1) 

whether the municipality kept within its jurisdiction; 

(2) whether it proceeded on a correct theory of law; 

(3) whether its action was arbitrary, oppressive, or 

unreasonable and represented its will and not its 

judgment; and (4) whether the evidence was such that 

it might reasonably make the order or determination in 

question. . .

Id. (citation omitted). Additionally, "on certiorari review, 

there is a presumption of correctness and validity to a 

municipality's decision." Id., ¶48. This standard is 

commensurate with our established deference to legislative 

determinations.32 Therefore, certiorari review of the decisions 

of both the City Common Council and the JRB is also an adequate 

remedy. 

¶72 The record before us, however, does not contain a 

"record compiled by the municipality" because the litigation 

 

32 See, e.g., Town of Baraboo, 283 Wis. 2d 479, ¶18 (quoting 

Town of Campbell v. City of La Crosse, 2003 WI App 247, ¶19, 268 

Wis. 2d 253, 673 N.W.2d 696) ("The doctrine known as the 'rule 

of reason' is applied by the courts to ascertain whether the 

power delegated to the cities and villages has been abused in a 

given case."); see also Fond du Lac, 22 Wis. 2d 533 (applying 

the rule of reason to annexation); Joint Sch. Dist. No. 1, 56 

Wis. 2d at 797 ("The trial court properly confined its review to 

whether the State Appeal Board had jurisdiction and whether the 

order evinced arbitrary or capricious action.").
No. 2015AP1858

51

below did not proceed to that point. See supra notes 5-7. We 

therefore remand the cause to the circuit court for certiorari 

review of the decisions of the City Common Council and the JRB.

IV. CONCLUSION

¶73 On review, we consider two issues. First, we consider 

whether dismissal of Plaintiffs' declaratory judgment claims was 

proper. We conclude that it was, because Plaintiffs have failed 

to state claims upon which relief can be granted: the first and 

second counts fail because the City Common Council's findings of 

blight and the JRB's "but for" assertions are legislative 

determinations that do not present justiciable issues of fact or 

law; the third count fails because it does not allege facts 

which plausibly establish that the City's cash grant for TID 10 

was used to reimburse the developer's costs associated with 

demolishing historic buildings; and the fourth count fails 

because it does not allege facts which plausibly establish that 

cash grants are intended or used to pay owner-developers' 

property taxes. 

¶74 Second, we consider whether certiorari review is 

appropriate. We conclude that it is, because certiorari review 

is the appropriate mechanism for a court to test the validity of 

a legislative determination. The record before us, however, 

does not contain a municipal record sufficient to enable our 

review. Accordingly, we remand to the circuit court for 

certiorari review of Plaintiffs first and second claims.
No. 2015AP1858

52

¶75 Thus, we affirm the decision of the court of appeals 

on the other grounds.

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

affirmed and the cause is remanded for further proceedings 

consistent with this opinion.
No. 2015AP1858.rgb&dk

1

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

J. (dissenting). The court held that Plaintiffs' richlydetailed and amply supported 25-page Complaint does not 

sufficiently state a claim. It also said Plaintiffs may not 

request declaratory relief on their claims that the City of Eau 

Claire (the "City") lacked authority to expand TID #8 or create 

TID #10. And ignoring the obvious fungibility of money, it said 

Plaintiffs' assertion that developers who were reimbursed out of 

TID funds for demolishing historic buildings did not plausibly 

allege that TID funds were used to pay for demolishing historic 

buildings.

¶78 The court's decision forecloses taxpayers from ever 

seeking declaratory judgment when municipalities violate the TIF 

statutes. Our court (and the court of appeals) sidestepped the 

complex substantive issues, incorrectly applied the law, and 

deprived Plaintiffs of their rights. We write separately to 

explain why: (1) Plaintiffs have standing to pursue their 

Complaint; (2) declaratory judgment is an appropriate avenue for 

seeking relief; and (3) the Complaint sufficiently alleges facts 

to support each claim, although not every claim is legally 

supportable. We specifically address why the factual existence 

of "blight" is justiciable, why Plaintiffs' cash grant claim 

should have survived a motion to dismiss, and why TIDs in 

general, and these cash grants specifically, do not implicate 

the Uniformity Clause of the Wisconsin Constitution. We 

respectfully dissent.
No. 2015AP1858.rgb&dk

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I. BACKGROUND1

¶79 The City expanded TID #8 and created TID #10 in 

conjunction with a development known as the Confluence Project. 

Our statutes authorize municipalities to create TIDs as a 

mechanism to fund any of four types of projects: blight 

elimination (Wis. Stat. § 66.1105); urban rehabilitation or 

conservation (Wis. Stat. § 66.1337(2m)); industrial development 

(Wis. Stat. § 66.1101); or promotion of mixed use development 

(Wis. Stat. § 66.1105(2)(cm)). The City claimed it amended 

TID #8 and created TID #10 to combat blight. The controlling 

statute defines "blighted area" as either: (1) a slum area or 

an area that endangers life or property and is detrimental to 

health, safety, morals, or welfare; or (2) a predominantly open 

area that consists primarily of an abandoned highway corridor or 

demolished structures that substantially impair community 

growth. See Wis. Stat. § 66.1105(2)(ae)1.

¶80 The Confluence Project engendered considerable debate, 

which focused primarily on whether, as a factual matter, the 

TIDs actually comprised blighted areas. At public hearings 

addressing the TIDs, those opposed to the project presented 

evidence that the areas were not blighted, that the areas 

contained historic buildings, and that redevelopment of some of 

 

1 This section primarily recounts facts and reasonable 

inferences from Plaintiffs' Complaint. In reviewing a motion to 

dismiss, we accept as true the alleged facts and all reasonable 

inferences therefrom. See Data Key Partners v. Permira Advisers 

LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693. We draw 

all legal conclusions independently. See Walberg v. St. Francis 

Home, Inc., 2005 WI 64, ¶6, 281 Wis. 2d 99, 697 N.W.2d 36.
No. 2015AP1858.rgb&dk

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the buildings was already underway and would occur without the 

TIDs and without the Confluence Project.

¶81 On September 9, 2014, the Eau Claire City Council (the 

"City Council") approved the amendment to TID #8 and adopted a 

resolution to that effect. Nothing in the minutes from that 

meeting indicates the City Council had any evidence that the 

area was actually blighted. The City Council's resolution did 

not contain any specific facts documenting or explaining why the 

Council found "not less than 50%, by area, of the real property 

within the district is . . . a blighted area." On September 26, 

2014, the Joint Review Board (the "Board")2 approved the City 

Council's resolution expanding TID #8.

¶82 At the public hearing on TID #10, residents opposed to 

its creation presented evidence that the City's own records 

prove the area was not blighted. Nonetheless, the City Council 

adopted a resolution approving TID #10 on October 14, 2014. 

Although the resolution said that "not less than 50%, by area," 

was a blighted area in "need of rehabilitation or conservation," 

Plaintiffs say there is no evidence to support this finding. On 

October 22, 2014, the Board adopted the City Council's 

resolution, claiming the development would not occur without the 

creation of TID #10.

¶83 Plaintiffs filed a Notice of Claim and Injury with the 

City claiming the actions related to the TIDs were unlawful, 

 

2 Wisconsin Stat. § 66.1105(4m) describes the role and 

responsibility of the Joint Review Board. The majority opinion 

sets forth the full text of § 66.1105(4m) in ¶41.
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violated the TIF statutes, and injured the taxpayers by 

obligating them to pay higher taxes. The Notice advised that

disallowance of the claim would cause the taxpayers to file a 

declaratory judgment action. The City did not respond. 

Instead, the City Council adopted a resolution appropriating 

$9,976,100 to the project plans for TID #8 and $5,945,800 for 

TID #10. It also adopted a resolution authorizing issuance of 

bonds to be funded by the incremental revenue from TID #8 and 

TID #10.

¶84 Subsequently, Plaintiffs filed a Complaint seeking 

declaratory judgment on four claims: (1) the City did not 

comply with the TIF statutes in expanding TID #8; (2) the City 

did not comply with the TIF statutes in creating TID #10; (3) 

the City unlawfully used TID funds to pay for demolition of 

historic buildings; and (4) the cash grants violated the 

Uniformity Clause. The Complaint alleged an alternative fifth 

claim "for certiorari review of the actions taken by the City 

Council and the Joint Review Board."

¶85 The City denied Plaintiffs' allegations and moved to 

dismiss the Complaint. As material here, the City claimed: (1) 

Plaintiffs did not have standing to bring a declaratory judgment 

or a certiorari action; (2) the TID resolutions are nonjusticiable legislative enactments; (3) the Complaint fails to 

state a claim and any claim based on demolition of the historic 

buildings is moot; and (4) this court already declared the TIF 

statutes constitutional in Sigma Tau Gamma Fraternity House 

Corp. v. City of Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85 
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(1980). The circuit court granted the City's motion, holding 

Plaintiffs did not have standing, declaratory judgment was 

inappropriate because the case presented a political question, 

and the TIF statutes are constitutional.

¶86 The court of appeals affirmed in part and reversed in 

part. It agreed with the circuit court that Plaintiffs did not 

have standing to seek a declaratory judgment and that 

declaratory judgment is an inappropriate avenue to challenge a 

City's factual findings. See Voters with Facts v. City of Eau 

Claire, 2017 WI App 35, ¶¶2-3, 376 Wis. 2d 479, 899 N.W.2d 706. 

It held Plaintiffs did not sufficiently allege a violation of 

the TIF statutes, their claim regarding illegal payment for 

demolition of historic buildings was speculative, and they did 

not sufficiently allege a constitutional violation. Id. It 

decided, however, that Plaintiffs had the right to certiorari 

review of Plaintiffs' first and second claims, and remanded to 

the circuit court. Id., ¶60. We granted Plaintiffs' petition 

for review.

II. ANALYSIS

A. Standing 

¶87 The court "assumes" standing, but does not address it. 

In this case, the circuit court decided Plaintiffs did not have 

standing at all, and the court of appeals decided that 

Plaintiffs did not have standing to seek declaratory judgment. 

Plainly, the question of "standing" in the context of 

declaratory judgment claims needs some attention. We should 

provide guidance on this issue so it does not readily recur. We 
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write to explain why Plaintiffs had standing to assert their 

claims.

1. Standard of Review and Applicable Law

¶88 Whether a plaintiff has standing to bring suit is a 

question of law we review de novo. See Krier v. Vilione, 2009 

WI 45, ¶14, 317 Wis. 2d 288, 766 N.W.2d 517. Taxpayers have 

standing when the complaint alleges the taxpayer has or will 

sustain some pecuniary loss as a result of an illegal 

expenditure of public funds. S.D. Realty Co. v. Sewerage 

Comm'n., 15 Wis. 2d 15, 21-22, 112 N.W.2d 177 (1961). "A 

taxpayer [has] a financial interest in public funds. . . . " 

Id. at 22. Standing exists even when the pecuniary loss alleged 

is "infinitesimal." Id. The merits of the claim have no 

bearing on whether standing exists. Kaiser v. City of Mauston, 

99 Wis. 2d 345, 360-61, 299 N.W.2d 259 (Ct. App. 1980), 

overruled on other grounds by DNR v. City of Waukesha, 184 

Wis. 2d 178, 191, 515 N.W.2d 888 (1994) (notice of claim 

statute) (subsequent case limiting DNR's notice of claim holding 

omitted); Hart v. Ament, 176 Wis. 2d 694, 699, 500 N.W.2d 312 

(1993).

2. Application

¶89 We conclude Plaintiffs have standing to pursue a claim 

that the City of Eau Claire did not follow the requisite 

procedures outlined in the TIF statutes when the City decided to 

create TID #10 and expand TID #8. Plaintiffs' claim, if true, 

necessarily means the taxpayers will suffer pecuniary harm 

because the City will expend funds without any legal basis. 
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Plaintiffs' Complaint alleges that: (1) they are taxpayers (two 

of Plaintiffs actually own property within a TID district and 

assert it is not blighted); (2) the City "failed to satisfy the 

statutory requirements" and did not make required statutory 

findings before proceeding with the TIDs; (3) the areas within 

the TIDs are in fact not blighted areas; and (4) Plaintiffs were 

harmed as a result of the City's "unlawful actions as their tax 

dollars will be spent in an unlawful manner, tax revenues from 

the incremental growth in TID #8 will be unavailable for general 

purposes such as schools, roads, and public safety, and the 

incremental tax revenues from TID #8 will be unavailable for 

other taxing jurisdictions." The Complaint makes the same 

assertions about TID #10.

¶90 These allegations easily confer taxpayer standing. 

"An allegation that the city has spent, or proposes to spend, 

public funds illegally is . . . sufficient to confer standing on 

a taxpayer." Kaiser, 99 Wis. 2d at 360. When we inquire into 

standing, we do not evaluate a plaintiff's likelihood of success 

on the merits. That comes later. When the court of appeals 

decided that the City's expenditure of tax funds was legal, it 

improperly explored the merits of Plaintiffs' claims. See

Voters with Facts, 376 Wis. 2d 479, ¶¶18-59. The circuit court 

also erred in its standing analysis by passing on the question, 

believing it to be political rather than legal. This is error 

both procedurally and conceptually because it requires a defense 

of the merits before an opportunity to develop factual support.
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¶91 A taxpayer's complaint alleging past or future 

pecuniary loss based upon an unlawful expenditure of tax 

revenues has long been deemed sufficient to establish standing. 

Over one hundred years ago, this court recognized that "[e]very 

taxpayer, great or small, has an interest in the disposition of 

county funds. Courts will not stop to balance differences or 

enter into computations to ascertain just how much the taxpayer 

will be likely to suffer . . . ." Mueller v. Eau Claire Cty., 

108 Wis. 304, 311, 84 N.W. 430 (1900). Rather, when a taxpayer 

shows "'an active or threatened invasion or destruction of a 

distinct right belonging to himself or to the body of citizens 

for whom he sues . . . the taxpayer's right to sue is 

recognized.'" Id. at 312 (citation omitted). See also Hart, 

176 Wis. 2d at 698-99 (taxpayer challenge to transfer of a 

county museum to a private organization); State ex rel. Wis. 

Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988) 

(taxpayer challenge to "Frankenstein" veto); City of Appleton v. 

Town of Menasha, 142 Wis. 2d 870, 419 N.W.2d 249 (1988) 

(taxpayer challenge to statutory scheme for apportionment after 

annexation of a town); Tooley v. O'Connell, 77 Wis. 2d 422, 439, 

253 N.W.2d 335 (1977) (taxpayer challenge to statutory plan for 

financing city schools from property taxes); Buse v. Smith, 74 

Wis. 2d 550, 563, 247 N.W.2d 141 (1976) (taxpayer challenge to 

negative-aid school financing); State ex rel Sundby v. Adamany, 

71 Wis. 2d 118, 124, 237 N.W.2d 910 (1976) (taxpayer challenge 

to constitutionality of veto); Thompson v. Kenosha Cty., 64 

Wis. 2d 673, 679-81, 221 N.W.2d 845 (1974) (taxpayer challenge 
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to statutory creation of countywide assessor system); Vill. of 

W. Milwaukee v. Area Bd. of Vocational, Tech. and Adult Ed., 51 

Wis. 2d 356, 365-66, 187 N.W.2d 387 (1971) (taxpayer challenge 

to statute allowing for area vocational education districts); 

Columbia Cty. v. Bd. of Trs. of Wis. Ret. Fund, 17 Wis. 2d 310, 

116 N.W.2d 142 (1962) (taxpayer challenge to statute mandating 

all counties join the welfare fund); Fed. Paving Corp. v. 

Prudisch, 235 Wis. 527, 293 N.W. 156 (1940) (taxpayer challenge 

to statute allowing certain cities to pay funds under contracts 

later found void).

¶92 Despite longstanding and clear-cut law to the 

contrary, the circuit court and the court of appeals ruled 

Plaintiffs lack standing. Instead of correcting the error, this 

court dodged it, which means it will just come back to us again. 

The law of standing requires nothing more than Plaintiffs' claim 

that they are harmed by the unlawful expenditure of their tax 

dollars.

B. Dismissal of Counts One and Two

¶93 The first two counts of the Complaint challenge the 

City's authority to amend TID #8 and create TID #10. They seek 

a declaration that the City may not exercise TID authority 

unless (as relevant here) the proposed districts encompass the 

statutorily-prescribed minimum concentration of blighted 

properties. This court dismissed these counts for failure to 
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state a claim because, it said, blight is a non-justiciable 

legislative determination.3

¶94 This conclusion is not possible without indulging two 

foundational errors. First, the court never faced, and so did 

not answer, the central question Plaintiffs raised: Whether the 

statutorily-mandated preconditions to the City's exercise of TID 

authority were satisfied. And second, the court made a category 

error when, for purposes of justiciability, it assumed the 

existence of blight is the same thing as a municipality's 

response to it.

1. Controlling Legal Principles

¶95 Declaratory judgments, such as the one Plaintiffs 

requested, are broadly available under our Uniform Declaratory 

Judgment Act, which says: "Courts of record within their 

respective jurisdictions shall have power to declare rights, 

status, and other legal relations whether or not further relief 

is or could be claimed. No action or proceeding shall be open 

to objection on the ground that a declaratory judgment or decree 

is prayed for." Wis. Stat. § 806.04(1). Such declarations are 

available so long as there is a justiciable controversy. 

Milwaukee Dist. Council 48 v. Milwaukee Cty., 2001 WI 65, ¶37, 

 

3 Majority op., ¶4 ("First, we consider whether dismissal of 

Plaintiffs' declaratory judgment claims was proper. We conclude 

that it was, because Plaintiffs have failed to state claims upon 

which relief can be granted: the first and second counts fail 

because the City Common Council's findings of blight . . . are 

legislative determinations that do not present justiciable 

issues of fact or law . . . .").
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244 Wis. 2d 333, 627 N.W.2d 866 ("A declaratory judgment is 

fitting when a controversy is justiciable.").

¶96 We have previously said that an issue is justiciable, 

for purposes of declaratory judgment actions, when there is:

(1) A controversy in which a claim of right is 

asserted against one who has an interest in contesting 

it.

(2) The controversy must be between persons whose 

interests are adverse.

(3) The party seeking declaratory relief must have a 

legal interest in the controversy——that is to say, a 

legally protectible interest.

(4) The issue involved in the controversy must be ripe 

for judicial determination.

Loy v. Bunderson, 107 Wis. 2d 400, 409, 320 N.W.2d 175 

(1982) (internal quotation marks and citation omitted). 

Justiciability, however, does not depend on the ultimate merits 

of the claim. Tooley v. O'Connell, 77 Wis. 2d 422, 434–35, 253 

N.W.2d 335 (1977) ("The merits of plaintiffs' cause of action do 

not determine its justiciability.").

¶97 As the court recognized, the substantive law informing 

Plaintiffs' claims controls what they must plead. See majority 

op., ¶27 ("[T]he sufficiency of a complaint depends on [the] 

substantive law that underlies the claim made because it is the 

substantive law that drives what facts must be pled." (quoting 

Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶31, 356 

Wis. 2d 665, 849 N.W.2d 693)). It also supplies the raw 

material for the justiciability analysis.

¶98 The contest with respect to Counts One and Two is 

over the City's authority to expand TID #8 and create TID #10. 
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The Tax Increment Law (Wis. Stat. § 66.1105) is the source of 

that authority: "In addition to any other powers conferred by 

law, a city may exercise any powers necessary and convenient to 

carry out the purposes of this section, including the power to: 

(a) Create tax incremental districts and define the boundaries 

of the districts . . . ." § 66.1105(3). But this is not an 

absolute grant of power. That is to say, the legislature did 

not authorize municipalities to create TIDs whenever and 

wherever they wish. To the contrary, a municipality may not 

create a TID unless all of the statutorily-defined prerequisites 

are satisfied. The legislature introduced the operative portion 

of the Tax Increment Law with this command: "In order to 

implement the provisions of this section, the following steps 

and plans are required . . . ." § 66.1105(4).

¶99 One of the requirements a municipality must satisfy 

before it may create a TID is adoption of a resolution finding 

that:

[n]ot less than 50 percent, by area, of the real 

property within the district is at least one of the 

following: a blighted area; in need of rehabilitation 

or conservation work, as defined in s. 66.1337 (2m) 

(a); suitable for industrial sites within the meaning 

of s. 66.1101 and has been zoned for industrial use; 

or suitable for mixed-use development . . . .

Wis. Stat. § 66.1105(4). An area is blighted if it meets any of 

the following descriptions:

a. An area, including a slum area, in which the 

structures, buildings or improvements, which by reason 

of dilapidation, deterioration, age or obsolescence, 

inadequate provision for ventilation, light, air, 

sanitation, or open spaces, high density of population 

and overcrowding, or the existence of conditions which 
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endanger life or property by fire and other causes, or 

any combination of these factors is conducive to ill 

health, transmission of disease, infant mortality, 

juvenile delinquency, or crime, and is detrimental to 

the public health, safety, morals or welfare.

b. An area which is predominantly open and which 

consists primarily of an abandoned highway corridor, 

as defined in s. 66.1333 (2m) (a), or that consists of 

land upon which buildings or structures have been 

demolished and which because of obsolete platting, 

diversity of ownership, deterioration of structures or 

of site improvements, or otherwise, substantially 

impairs or arrests the sound growth of the community.

Wis. Stat. § 66.1105(2)(ae)1.

¶100 That is the substantive law against which we compare 

Counts One and Two. Plaintiffs make three relevant allegations. 

In the first, they say the City acted solely on the basis that 

the property within the TIDs was blighted. In the second and 

third, they say that although the City claimed the property 

within TID #8 and TID #10 (respectively) was blighted, the 

record before the City contained no evidence this was true. 

When we consider the sufficiency of a complaint, "we accept as 

true all facts well-pleaded in the complaint and the reasonable 

inferences therefrom." Data Key Partners, 356 Wis. 2d 665, ¶19.

¶101 Therefore, the proper analysis accepts the truth of 

the following two propositions as the starting point: (1) The

City exercised TID authority based on its assertion that 

property within the districts is blighted; and (2) there is no 

evidence the City's assertion is true. Counts One and Two 

unmistakably challenge whether the preconditions to the City's 

exercise of TID authority have been satisfied. Although the 

court did not say so explicitly, it appears to have concluded 
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these claims are not justiciable because they do not satisfy the 

third prong of the Loy formula: "The party seeking declaratory 

relief must have a legal interest in the controversy——that is to 

say, a legally protectible interest." Loy, 107 Wis. 2d at 409-

10 (internal quotation marks and citation omitted). In other 

words, the court concluded that the people of Wisconsin have no 

legally protectible interest in ensuring municipalities exercise 

TID authority only when the legislature says they may. And that 

brings us to the first of the court's two foundational errors.

2. The Court Assumed Away the Question

¶102 The court completely missed that Plaintiffs' challenge 

goes to whether the preconditions to the City's exercise of TID 

authority have been satisfied with respect to the areas defined 

by TIDs #8 and #10. Steve Martin, the comic genius, once 

described how to be a millionaire and never pay taxes. First, 

he said, get a million dollars. The court has done something 

similar in assessing the City's authority with respect to TIDS 

#8 and #10. First, it said, assume the authority to create 

them. The court spent most of its analysis describing the 

procedure by which a municipality documents that assumption. 

But Plaintiffs' actionable concern is not that the City failed 

to do its paperwork properly. Their Complaint alleges that the 

City lacked the authority to create (or expand) the TIDs because 

the statutorily-mandated factual predicate to the exercise of 

that authority does not exist.

¶103 The court's analysis started with the unvoiced 

assumption that the City had the authority to do what it did, 
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and in so doing, it assumed away Plaintiffs' actual challenge. 

Here is how the court began: "To determine whether the 

allegations are sufficient to state a claim upon which relief 

may be granted, we must interpret the statute; specifically, we 

must determine what the statute means when it requires that the 

local legislative body adopt a 'resolution 

which . . . [c]ontains findings.'" Majority op., ¶30. Why on 

earth would we do that? No one doubts the City's resolution 

contains findings. What they doubt is whether they reflect 

reality. Nonetheless, the court lamented that "finding" is a 

statutorily-undefined term (as if we do not know what a 

"finding" is) before settling on a dictionary definition.4 Then, 

without explanation, we leapt from Black's definition to the 

conclusion that the City need not provide evidence for its 

findings.5 Let's stipulate that this non sequitur could be saved 

by some hitherto unknown logic——why would it matter? The manner 

in which a municipality must document its findings says nothing 

at all about whether the findings must be, not to put too fine 

of a point on it, true.

 

4 Majority op., ¶33 ("A determination by a judge, jury, or 

administrative agency of a fact supported by the evidence in the 

record." (quoting Finding of fact, Black's Law Dictionary 749 

(10th ed. 29 2014)). That's a fine definition of a finding of 

fact, although the court's long history with findings of fact 

probably makes a dictionary definition unnecessary.

5 Majority op., ¶33 ("Given this ordinary meaning of 

'findings', the plain language of the statute does not require 

that the local legislative body——here, the City Common Council——

itemize the evidence in the record that supports its finding of 

blight.").
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¶104 The legislature granted municipalities the authority 

to create TIDs. But it placed a gate with a combination lock in 

front of that grant of authority. The gate will not swing open 

unless the statutorily-prescribed combination of conditions is 

fulfilled. In this case, the City is trying to access TIDcreating authority using the blight combination. Plaintiffs say 

the City did not get it right, and so the gate did not open. 

The court's response to Plaintiffs' claim was to consider the 

nature of the record the City must make as it jumps the gate. 

That is not what the court was supposed to do. It was supposed 

to consider whether the people of Wisconsin may seek a 

declaration that the City may not jump the gate. That, however, 

was only the first of the court's foundational errors.

3. The Court's Category Error

¶105 The balance of the court's opinion on Counts One and 

Two comprised its mistaken conclusion that the existence of 

blight is a non-justiciable question of legislative policy. 

This is a profoundly disturbing category error, inasmuch as it 

caused the court to conclude that facts are contingent on 

municipal policies——a conclusion that obtains nowhere but in 

Orwellian dystopias. So the court did not recognize that (1) a 

municipality's policy, and (2) the facts on the ground to which 

the policy responds, do not fall into the same category. The 

first is generally not justiciable; the second is.

¶106 The court created this error when it observed that our 

statutes define "blight," in part, with reference to some of the 

maladies that municipalities have the authority to address: 
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The key language in each of these [blightrelated] statutes is that the "area," in its current 

state, "is detrimental to the public health, safety, 

morals, or welfare." "Public safety, public health, 

[and] morality . . . are some of the more conspicuous 

examples of the traditional application of the police 

power to municipal affairs," Berman v. Parker, 348 

U.S. 26, 32 (1954), and a "municipality's exercise of 

its police power has traditionally been accorded 

deference by reviewing courts." Nowell v. City of 

Wausau, 2013 WI 88, ¶46, 351 Wis. 2d 1, 838 

N.W.2d 852.

Majority op., ¶37. Because it saw similar phrases in the 

description of a municipality's authority and the situations a 

municipality may address, the court apparently thought they must 

be in the same category for purposes of the justiciability 

analysis. They are not.

¶107 The court's category error is the consequence of not 

recognizing the difference between subjects and objects. The 

subject is the municipality's authority; the object is the 

situation to which the municipality may apply that authority. 

Yes, municipalities have authority to address matters of public 

health, safety, morals, and welfare. And yes, certain 

properties and areas are blighted (something that affects public 

health, safety, morals, and welfare). This inexorably leads to 

the unremarkable conclusion that municipalities have certain 

authority (the subject) to remedy properties or areas that are 

blighted (the object). A logically-ordered universe, however, 

does not allow the conclusion that this means subjects and 

objects are the same thing. Just because municipalities have 

authority to address blight does not mean they have the 

authority to define what blight is. The legislature has already 

taken care of that task. It told municipalities, in great 
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detail, what "blighted area" means in the context of the Tax 

Increment Law. See Wis. Stat. § 66.1105(2)(ae)1.6 This 

conflation of subjects and objects guaranteed the court's 

justiciability analysis would produce the wrong answer.

¶108 Because of that conflation, the court mistakenly 

concluded that a challenge to the City's description of reality 

is as non-justiciable as its policy decisions responding to that 

reality. Specifically, the court said that "findings of blight 

are legislative determinations that 'do[ ] not raise justiciable 

issues of fact or law.'" Majority op., ¶36 (quoting Joint Sch. 

Dist. No. 1 v. State Appeal Bd., 56 Wis. 2d 790, 794, 203 

N.W.2d 1 (1973)). No, findings of blight are most assuredly not

legislative determinations. And the court cited not a single 

 

6 It really could not be otherwise. If the authority to 

address blight encompassed the authority to define blight, there 

would be no end to a municipality's authority. An enterprising 

municipality could create authority ex nihilo through the simple 

expedient of calling any condition it wished to address 

"blighted."
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authority to explain how this could possibly be so.7 What to do

about blight (if anything) is a legislative determination. But 

the existence of blight (as defined by the legislature) cannot 

be a legislative determination unless, alone amongst all 

governmental entities and sentient beings, municipalities have 

the power to conform the world to their dictates. The first 

category involves the exercise of legislative judgment and 

discretion. The second category involves the legislators' 

accurate apprehension of the world around them. The court's 

consistent failure to distinguish between these two categories 

resulted in its implied holding that municipalities are entitled 

to their own facts.

¶109 Without that category error, none of the authorities 

the court cited would support its position. Not one. Each of 

the cases on which it relied addresses matters in the first 

category——that is, the exercise of a legislative body's judgment 

 

7 The immediately preceding quote from the court's opinion 

looks like it might contradict our statement, but it does not. 

Majority op., ¶36 (quoting Joint Sch. Dist. No. 1 v. State

Appeal Bd., 56 Wis. 2d 790, 794, 203 N.W.2d 1 (1973)). The 

Joint Sch. Dist. No. 1 case had nothing to do with blight 

findings. In fact, the Joint Sch. Dist. No. 1 court concluded 

that the dispute had nothing to do with findings at all. It 

instead concerned "the wisdom and advisability of the proposed 

reorganization" of a school district. Id. at 795. The sentence 

fragment the court cherrypicked says, in full, this: "As a 

consequence of these holdings, we have concluded that the merits 

of a school district reorganization is a legislative 

determination of public policy questions which does not raise 

justiciable issues of fact or law." Id. at 794. "Public policy 

questions" are quintessential non-justiciable issues. The 

existence of a fact, at least outside Orwell's 1984, is never

contingent on a public policy.
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and discretion. For example, Joint Sch. Dist. No. 1 did not say 

that all legislative determinations are non-justiciable. It 

said "legislative determinations[s] of public policy questions" 

are not justiciable. Joint Sch. Dist. No. 1, 56 Wis. 2d 790 at 

794 (emphasis added). That, of course, is indubitably true. 

The issue in Joint Sch. Dist. No. 1 was the "wisdom and 

advisability of the proposed reorganization" of a school 

district. Id. at 795. The contest was not over objective 

reality, such as whether the school district did or did not 

exist. It was over the form the district ought to take, the 

resolution of which necessarily rests on the legislative body's 

prudential exercise of discretion. That is what made the 

legislative determination non-justiciable.

¶110 Similarly, Buhler v. Racine Cty., 33 Wis. 2d 137, 146 

N.W.2d 403 (1966), addressed questions of discretion and 

judgment, not the reality of the world to which that discretion 

and judgment would be applied. The question there was the 

propriety of certain zoning classifications. The court 

concluded that zoning decisions are largely non-justiciable 

because they are based on the "wisdom" and "desirability" of the 

varying classifications when applied to the properties in 

question. Id.at 146-47. If the court's decision today is 

correct, then not only the wisdom of the zoning would be nonjusticiable, but also the very nature of the property to which 

the zoning applied. Do we really need to say that the nature of

the property does not care about what the municipality thinks of 
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it? It is what it is, notwithstanding any number of municipal 

"findings" to the contrary.

¶111 The court says, in a footnote, that Berman v. Parker, 

348 U.S. 26 (1954), supports its proposition that the existence 

of blight is a non-justiciable legislative determination. See

majority op., ¶39, n.20. But it does not explain how. Nor 

could it, because Berman recognizes the distinction between 

subjects and objects we have laid out in this dissent: "Once 

the object is within the authority of Congress, the right to 

realize it through the exercise of eminent domain is clear. For 

the power of eminent domain is merely the means to the end." 

Berman, 348 U.S. at 33. As here, the "object" in Berman was 

blighted property. But as Berman recognized, before the 

government could act, the object had to have been "within the 

authority of Congress [the subject]." The authority at issue 

there was eminent domain, a power granted to the District of 

Columbia without preconditions. Here, the authority in question 

is the creation of a TID, an authority that does not exist 

unless and until certain legislatively-prescribed preconditions 

have been fulfilled. Berman's lesson is that, once the 

legislative body has authority (the subject) to operate on the 

object (blight), the manner in which it exercises that authority 

is a legislative determination committed to the legislative 

body's sound discretion and prudence. Consequently, Berman can 

have nothing to say here unless we confound subjects and 

objects.
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¶112 For essentially the same reasons, David Jeffrey Co. v. 

City of Milwaukee, 267 Wis. 559, 578, 66 N.W.2d 362 (1954), does 

not support the court's assertion that the existence of blight 

is a legislative determination. The issue in David Jeffrey Co.

was not whether a municipality has unreviewable power to declare 

something blighted that is not; it was whether the expressed 

purpose for eliminating blight in the City of Milwaukee could be 

considered a "public use" of private property (as required by 

Article I, sec. 13 of our State Constitution). After converting 

"public use" into "public purpose," the David Jeffrey Co. court 

said "[t]he determination of what constitutes a public municipal 

purpose is primarily a function of the legislative body, subject 

to a review by the courts, and such determination by the 

legislative body will not be overruled by the courts except in 

instances where that determination is manifestly arbitrary or 

unreasonable." Id. at 579. This is so because the purpose for 

applying the municipality's authority (the subject) to the 

blighted areas (the object) is a matter of judgment, discretion, 

and prudence. The David Jeffrey Co. court said nothing to 

suggest that the existence of blight (the object) is a 

legislative determination.

¶113 The last case on which the court relies for its 

proposition, Nowell v. City of Wausau, 2013 WI 88, ¶46, 351 

Wis. 2d 1, 838 N.W.2d 852, provides no more support than any of 

the others. There, a bar owner asked the court to review the 

City of Wausau's decision to not renew its liquor license. The 

Nowell court observed that the decision to grant or deny a 
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liquor license is committed to the municipality's unconstrained 

discretion. Unsurprisingly, that court correctly concluded the 

municipality's authority was legislative in nature, and subject 

to only certiorari review. But Nowell can provide no 

instruction here because Plaintiffs are not asking whether the 

City exercised its TID authority in a prudent manner; they are 

asking whether the preconditions to unlimbering that authority 

have been satisfied. Nowell does not——and cannot——tell us that 

the existence of blight is a non-justiciable legislative 

determination. And the court has identified no case capable of 

suggesting it is.

*

¶114 The proper justiciability analysis would recognize 

that facts are not contingent on a municipality's prudential 

exercise of its discretion. Instead, if the world is to make 

any sense at all, the exact opposite must be true: The 

municipality's policies must be contingent on the facts. And 

that means that facts are justiciable, while policies are 

generally not. There is no mystery to this. Justiciability, as 

the court noted, implicates the separation of powers. Baker v. 

Carr, 369 U.S. 186, 217 (1962) ("It is apparent that several 

formulations which vary slightly according to the settings in 

which the questions arise may describe a political question, 

although each has one or more elements which identify it as 

essentially a function of the separation of powers."); Majority 

op., ¶39 ("This is because de novo review of a legislative 

determination violates the doctrine of separation of powers."). 
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We respect the separation of powers, in part, by not secondguessing a legislative body's policy choices. Those choices are 

generally not justiciable because they comprise the prudential 

exercise of judgment and discretion, variables that by their 

nature are not susceptible to judicial inquiry. But 

legislatures have no monopoly on reality, and so there is no 

conceivable violation of the separation of powers when we look 

at facts for ourselves. That is to say, while municipalities 

are entitled to their choice of policies, they are not entitled 

to their own facts.8

 

8 Contrast this with, for example, Plaintiffs' assertion 

that they may have a declaration that the City did not fulfill 

the condition that the Confluence Project would not occur but 

for the creation and expansion of the TIDs. The statute says 

"[t]he board may not approve the resolution under this 

subdivision unless the board's approval contains a positive 

assertion that, in its judgment, the development described in 

the documents the board has reviewed under subd. 1. would not 

occur without the creation of a tax incremental district." Wis. 

Stat. § 66.1105(4m)(b)2. (emphasis added). Access to TID 

authority does not depend on whether the project, in fact, would 

not occur but for the TID. With respect to this precondition, 

authority depends on the municipality's judgment that it would 

not occur but for the TID. We traditionally review a 

municipality's exercise of judgment under common-law certiorari 

standards. See, e.g., Ottman v. Town of Primrose, 2011 WI 18, 

¶¶34-35, 332 Wis. 2d 3, 796 N.W.2d 411 ("Certiorari is a 

mechanism by which a court may test the validity of a decision 

rendered by a municipality . . . ."). We apply the common law 

certiorari standard where there is no express statutory method 

of review, and our review is limited to the record compiled by 

the municipality. Moreover, we may only consider: 

(1) whether the municipality kept within its 

jurisdiction; (2) whether it proceeded on a correct 

theory of law; (3) whether its action was arbitrary, 

oppressive, or unreasonable and represented its will 

and not its judgment; and (4) whether the evidence was 

(continued)
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¶115 The United States Supreme Court's Baker opinion 

provides significant guidance in describing the category of nonjusticiable questions:

Prominent on the surface of any case held to involve a 

political question is found a textually demonstrable 

constitutional commitment of the issue to a coordinate 

political department; or a lack of judicially 

discoverable and manageable standards for resolving 

it; or the impossibility of deciding without an 

initial policy determination of a kind clearly for 

nonjudicial discretion; or the impossibility of a

court's undertaking independent resolution without 

expressing lack of the respect due coordinate branches 

of government; or an unusual need for unquestioning 

adherence to a political decision already made; or the 

potentiality of embarrassment from multifarious 

pronouncements by various departments on one question.

Baker, 369 U.S. at 217.

¶116 Nothing in this formulation is capable of making 

Plaintiffs' challenge non-justiciable. The entire formula rests 

on an a priori understanding that facts——the stuff of reality——

precede and are therefore outside the category of nonjusticiable questions. Thus, for example, reality (here, 

whether certain property satisfies the statutory definition of 

blight) has not been (nor could it be) committed to a coordinate 

branch of government (unless it is entitled to its own facts). 

And the statute's definition of blight is so specific there is 

no lack of discoverable and manageable standards for recognizing 

where it might exist. Nor must the judiciary make any policy 

 

such that it might reasonably make the order or 

determination in question.

Id.
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determinations as a predicate to identifying blighted 

properties. And allowing Plaintiffs to assert that there is no 

blight where the City says there is expresses no disrespect for 

the City, just disagreement. And so on through all of the Baker 

factors. Because the existence of a set of facts cannot be 

contingent on a legislative body's exercise of its discretion or 

judgment, the court committed an outcome-determinative error in 

concluding that both subjects and objects fall in the same 

category for purposes of the justiciability analysis.

¶117 In a terse footnote, the court suggests the key to its 

opinion is the distinction between legislative and adjudicative 

facts. Majority op., ¶39 n.20. It also says that we do not 

understand the distinction, and that this failure accounts for 

our dissent. Id. Although we get the difference, we do not 

understand——and the court does not explain——why that means it 

must conflate subjects and objects. There is no magic to 

legislative facts——they simply describe the world as perceived 

by legislative bodies. Municipalities cannot speak (or write) a 

single fact into existence (or make one disappear). The facts 

either are, or they are not. And that matters because the 

legislature conditioned the City's TID authority on whether the 

TIDs——as a factual matter——encompass the required amount of 

blight. If it did not matter——that is, if the City can create 

legislative facts ex nihilo, the truth of which are beyond 

questioning——then the legislature can never condition a 

municipality's exercise of authority on a factual predicate. If 

the court is right, then the predicate can never be anything but 
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a functional nullity because the municipality will always be 

able to create compliance by speaking the "legislative" facts 

into existence. That, of course, is not a condition. It is 

surplusage. We are supposed to avoid that. See, e.g., 

Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980) 

("A statute should be construed so that no word or clause shall 

be rendered surplusage and every word if possible should be 

given effect.").

*

¶118 The factual predicates to the exercise of a 

municipality's TID authority are not legislative determinations. 

They are simply facts, the existence of which is as susceptible 

to determination in the context of the Tax Increment Law as in 

any other setting. The court erred, profoundly, when it 

concluded that Counts One and Two are non-justiciable. Our 

jurisprudential world will be on tilt until we abandon this 

reality-warping category error.

C. Dismissal of Counts Three and Four

¶119 The court concludes that Count Three insufficiently 

states a claim because it does not allege facts plausible enough 

to show TID funds were used to demolish historic buildings. And 

it concludes that Count Four suffers the same infirmity because 

Plaintiffs do not allege facts that plausibly show the grants 

were really paying the developer's property taxes. We disagree.

1. Standard of Review and Applicable Law

¶120 Our review of the sufficiency of a complaint is a 

question of law reviewed de novo. See Kaloti Enterprises, Inc. 
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v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis. 2d 555, 699 

N.W.2d 205. Wisconsin Stat. § 802.02(1)(a) provides the 

necessary requirements for a valid complaint:

(1) Contents of pleadings. A pleading or supplemental 

pleading that sets forth a claim for relief, whether 

an original or amended claim, counterclaim, cross 

claim or 3rd-party claim, shall contain all of the 

following: 

(a) A short and plain statement of the claim, 

identifying the transaction or occurrence or series of 

transactions or occurrences out of which the claim 

arises and showing that the pleader is entitled to 

relief. 

(b) A demand for judgment for the relief the

pleader seeks.

¶121 Wisconsin adopted "notice pleading" "so that legal 

disputes are resolved on the merits of the case" rather than 

dismissed based on a technicality. See Hlavinka v. Blunt, Ellis 

& Loewi, Inc., 174 Wis. 2d 381, 403, 497 N.W.2d 756 (Ct. App. 

1993) (quoting Korkow v. Gen. Cas. Co. of Wis., 117 Wis. 2d 187, 

193, 344 N.W.2d 108 (1984)). "The 'notice' pleading rules of 

the current civil procedure code are intended to facilitate the 

orderly adjudication of disputes; pleading is not to become a 

'game of skill in which one misstep by counsel may be decisive 

of the outcome.'" Korkow, 117 Wis. 2d at 193 (quoted source 

omitted).

¶122 When a court is asked to determine whether a complaint 

states a claim, we accept the facts pled in the complaint as 

true, as well as "all reasonable inferences that can be drawn 

from those facts." Hlavinka, 174 Wis. 2d at 403. To be valid, 

the complaint must give notice sufficient enough "that the 
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defendant, and the court, can obtain a fair idea of what the 

plaintiff is complaining, and can see that there is some basis 

for recovery." Id. (quoted sources and internal quotation marks 

omitted). The complaint should be liberally construed in favor 

of stating a claim and only dismissed when it is clear that 

there are no conditions under which Plaintiffs could prevail. 

See Hermann v. Town of Delavan, 215 Wis. 2d 370, 378, 572 

N.W.2d 855 (1998).

2. Application

¶123 Plaintiffs' third claim seeks a declaration voiding 

the City Council's TID resolution because TID funds were 

unlawfully used to pay for demolition costs of historic 

buildings in violation of Wis. Stat. § 66.1105(2)(f)1.a.9 The 

court agrees that the plain language of Wis. Stat. 

§ 66.1105(2)(f)1.a prohibits using TID money to pay for the 

demolition of a historic building. See majority op., ¶53. 

Nonetheless, the court concludes that Count Three failed to 

 

9 Wisconsin Stat. § 66.1105(2)(f)1.a provides: 

"Project costs" include:

a. Capital costs including, but not limited to, the 

actual costs of the construction of public works or 

improvements, new buildings, structures, and fixtures; 

the demolition, alteration, remodeling, repair or 

reconstruction of existing buildings, structures and 

fixtures other than the demolition of listed 

properties as defined in s. 44.31 (4); the acquisition 

of equipment to service the district; the removal or 

containment of, or the restoration of soil or 

groundwater affected by, environmental pollution; and 

the clearing and grading of land.
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state a claim for declaratory relief because it did not use the 

right words. According to the court, (1) the Complaint "did not 

allege facts which establish that the developer in fact used the 

money from the cash grant to pay for the demolition of" the 

historic buildings; and (2) the Complaint did not "allege facts 

which demonstrate that the developer was likely to do so"; and 

(3) the Plaintiffs allege only that "'there is . . . no way to 

assure' that the developer did not use the cash grants to pay 

for the demolition of historic buildings." Id., ¶55.

¶124 The court is mistaken because it did not account for 

what everyone knows: Money is fungible. The Complaint alleges 

that historic buildings on the National Register of Historic 

Places within the TID district were purchased and demolished by 

the developer——specifically identifying at least one of those 

buildings by name, the Kline Department Store, and another by 

address, "the historic property at 2 South Barstow Street." It 

alleges the demolition occurred "after the project plans were 

developed and, upon information and belief, with the 

understanding that [the developer] would be reimbursed for the 

costs of development." It further alleges: "A substantial part 

of the development costs actually incurred by the developer thus 

includes the costs of demolition as well as the purchase price 

of the Kline Department Store building and other buildings" 

protected by statute as historic places. Paragraph 46 of the 

Complaint alleges the City will pay the developer $10,400,000 in 

the form of cash grants for project costs, without prohibiting 

the developer from using that money to purchase or demolish the 
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historic properties. Paragraph 94 alleges "two lump-sum 

'contributions' of $2.95 million to the developer" which "may be 

used by the developer for any project related purpose, including 

reimbursing the developer for its already-incurred costs. These 

costs include acquisition and demolition" without prohibiting 

the developer from using this money "for the costs of 

demolishing" historic properties. Finally, the Complaint 

states: "Lump sum reimbursement for already incurred costs can 

properly be viewed as including any of those costs, including 

the costs of demolishing historic structures within the 

Confluence Commercial Historic District."

¶125 Taking these alleged facts as true, as we must, 

together with any reasonable inference derived therefrom, see

Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 

Wis. 2d 665, 849 N.W.2d 693, Plaintiffs' claim survives a motion 

to dismiss. The statute prohibits using TID funds to demolish 

historic places. The Complaint alleges the developer bought and 

demolished historic places pursuant to a development agreement 

under which the City pays millions of dollars in cash grants to 

the developer for any project-related purpose. In essence, the 

Complaint asserts the City is unlawfully transferring taxpayer 

money to the developer in part to cover the developer's costs 

for demolishing historic buildings; if proven, this would 

constitute an illegal expenditure of public funds. The 

Complaint need not track the currency's serial numbers from the 

TID funds to the wrecking company's bank account.
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¶126 The court heightens pleading requirements beyond what 

the law supports. It dismisses this claim even though the 

Complaint conveys fair notice of Plaintiffs' grievance and even 

though the Complaint's factual allegations and reasonably drawn 

inferences, if true, provide a basis for recovery. If 

Plaintiffs' claim proceeded, discovery would either prove or 

disprove Plaintiffs' allegation that the developer used TIF 

funds to cover demolition costs. If discovery shows Plaintiffs' 

allegations were correct, Plaintiffs would be entitled to a 

declaration that the City violated the statute. The court's 

perplexing dismissal of this claim achieves what notice pleading 

is supposed to prevent——dismissal on a technicality. The court 

selectively ignores pivotal words in the Complaint and spurns 

what is left as insufficient. It suggests that had Plaintiffs 

simply chosen a few different words, this claim would have 

survived dismissal. The court's analysis is unsound. The 

Complaint is sufficient to withstand a motion to dismiss and 

this claim should have been allowed to proceed to a decision on 

the merits rather than dismissed at the pleading stage on a 

specious technicality.

¶127 Plaintiffs' Fourth Count alleges that the cash grants, 

through which the City pays the developer millions of dollars, 

violate the Uniformity Clause of the Wisconsin Constitution 

because the cash grants effectively lower the developer-owners' 

property taxes. The court's opinion again concludes Plaintiffs' 

Complaint is factually insufficient. We disagree.
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¶128 Plaintiffs' Complaint alleges: (1) the cash grants 

reimburse the developer-owner "for all or a part of the taxes 

paid on its property"; (2) "the project plans provide for 

millions of dollars of incremental TID taxes to be paid directly 

to the owner of the property"; (3) these payments "function[] as 

a tax rebate or tax credit"; (4) as a result, the developerowner is "being taxed at a more favorable rate than an owner of 

identically-assessed property elsewhere in Eau Claire"; and (5) 

this arrangement violates the Uniformity Clause.

¶129 As noted, in reviewing a sufficiency of the complaint 

challenge, we accept all of its asserted facts and reasonably 

drawn inferences as true. We analyze any legal assertions 

independently. Plaintiffs' Complaint gives fair notice that 

Plaintiffs seek a declaration regarding the constitutionality of 

the cash grant part of the TIF statute. The Complaint alleges 

that the cash grants operate as a tax rebate that in effect 

lowers the developer's taxes, making the tax rate paid by the 

developer more favorable than the rate paid by other taxpayers. 

The facts alleged are sufficient to withstand a motion to 

dismiss. The court errs by concluding otherwise, which 

prevented the court from taking the next step of reviewing the 

legal basis for the claim. If the facts alleged are true, and 

if the legal premises are correct, Plaintiffs could receive the 

relief they seek: a declaration that the cash grants violate 

the Uniformity Clause. Accordingly, the court errs in 

prematurely disposing of this claim on the narrow basis that the 

Complaint insufficiently pleads adequate facts to support a 
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Uniformity Clause claim. Although the claim suffers no factrelated pleading inadequacy, it nonetheless fails to state a 

claim for the reasons we explain below.

D. Constitutionality of TIF Cash Grants

¶130 The court's rejection of Plaintiffs' constitutional 

challenge to the cash grants based on purportedly insufficient 

factual allegations in the Complaint is particularly puzzling 

because resolving the issue of whether the cash grants violate 

the Uniformity Clause does not depend on factual findings or 

require discovery.10 Rather, whether tax policy implicates the 

Uniformity Clause presents a legal question, which is ripe for 

resolution by this court. A statute's constitutionality 

presents an issue of law, which we review de novo. State v. 

Pittman, 174 Wis. 2d 255, 276, 496 N.W.2d 74 (1993).

¶131 Plaintiffs make an "as-applied" challenge.11 Although 

statutes are generally presumed constitutional, when the 

challenge is not to the statute itself, but to its application, 

no presumption exists. Soc'y Ins. v. LIRC, 2010 WI 68, ¶27, 326 

Wis. 2d 444, 786 N.W.2d 385 ("While we presume a statute is 

constitutional, we do not presume that the State applies 

 

10 We address only Plaintiffs' constitutional challenge 

under the Uniformity Clause. We cannot decide its 

constitutional challenge based on the public purpose doctrine 

because that analysis depends upon the blight findings.

11 We acknowledge the parties' dispute as to whether the 

challenge is a facial or an as-applied challenge. Like the 

majority, we analyze it as an as-applied challenge.
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statutes in a constitutional manner.")12 Plaintiffs argue that 

cash grants to a non-tax exempt developer who also owns the 

property violate the Uniformity Clause. They contend such 

grants operate as a tax rebate, which effectively lowers the 

property taxes the developer pays to the City. Accordingly, 

Plaintiffs do not challenge all cash grants under the TIF law, 

but only those made to property owners who are subject to 

taxation.

¶132 The Uniformity Clause of the Wisconsin Constitution 

guarantees "[t]he rule of taxation shall be uniform." Wis. 

Const. art. VIII, § 1. Generally speaking, the uniformity 

clause applies to property taxes, which are "direct taxes on 

real estate." Columbia Cty. v. Wis. Retirement Fund, 17 Wis. 2d 

310, 325, 116 N.W.2d 142 (1962). A Uniformity Clause analysis 

primarily focuses on "inequality in the assessing or collecting 

of a tax." State ex rel. Van Dyke v. Cary, 181 Wis. 564, 572, 

191 N.W. 546 (1923). When taxes are collected or assessed 

unequally, the Uniformity Clause is implicated. In Gottlieb v. 

Milwaukee, 33 Wis. 2d 408, 425-32, 147 N.W.2d 633 (1967), this 

court held a tax law that "partially exempt[s] particular tax 

property" violated the Uniformity Clause. The tax law in 

Gottlieb gave decades-long tax exemptions to developers who 

 

12 A facial challenge to a statute alleges that the statute 

is unconstitutional on its face——that it is unconstitutional in

every circumstance. State v. Smith, 2010 WI 16, ¶10 n.9, 323 

Wis. 2d 377, 780 N.W.2d 90. In contrast, an as-applied 

challenge asserts that a statute is unconstitutional as it 

relates to the facts of a particular case or a particular party. 

Id.
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agreed to construct or improve substandard properties in 

exchange for partial freezing of tax assessments. Id. Such an 

arrangement lowered the tax rate for the developers and resulted 

in other taxpayers paying a higher and disproportionate share of 

property taxes, in clear violation of uniformity. Id. at 429.

¶133 The statute Plaintiffs challenge here does not involve 

a tax freeze or a tax exemption. The developer-owner in the 

matter before us is assessed uniformly with other taxpayers and 

fully pays property taxes on that assessment. Plaintiffs'

constitutional challenge targets municipal disbursement of tax 

revenues after collection rather than the collection itself. 

Disbursement of funds generally survives challenges under the 

Uniformity Clause. In an early dispute over a surtax imposed to 

fund a teachers' retirement fund, this court identified "a 

substantial distinction between an inequality in the assessing 

or collecting of a tax and inequality in the disbursing of its 

proceeds among those who contributed," concluding that "while 

the former may invalidate the tax, the latter does not . . . ."

State ex rel. Van Dyke, 181 Wis. at 572. "TIF departs from 

uniformity only with respect to spending," which is significant 

because state courts hold that "state constitutional uniformity 

requirements appl[y] only to tax assessment and tax rates, not 

spending." Richard Briffault, The Most Popular Tool: Tax 

Incremental Financing and the Political Economy of Local 

Government, 77 U. Chi. L. Rev. 65, 75 & n.54 (2003) (citing 

state court opinions from Indiana, Illinois, Colorado, 
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Tennessee, Utah, and Iowa upholding TIF under their respective 

uniformity clauses).

¶134 The constitutional requirement of uniform taxation 

does extend, in some circumstances, to the manner of fund 

disbursement. See State ex rel. La Follette v. Torphy, 85 

Wis. 2d 94, 107, 108, 270 N.W.2d 187 (1978). While uniformity 

does not extend to disbursement of tax revenues when paid to 

counties and municipalities for use on government and public 

improvements, id. at 107, when a tax statute authorizes payment 

to an individual taxpayer, the Uniformity Clause applies if the 

effect of the statute imposes an unequal tax burden. Id. at 

108-110. "The uniformity clause is intended to protect the 

citizen against unequal and unjust taxation." Id. at 198. In 

Torphy, this court held the tax law giving tax credits to 

residential property owners who elected to make "building and 

garage improvements which result in increased property tax 

assessments" had the effect of imposing an unequal tax burden on 

homeowners with the same assessed valuations and therefore 

violated the Uniformity Clause. Id. at 98, 111.

¶135 Plaintiffs here allege that the TIF cash grants 

violate the Uniformity Clause because, like the tax credits in 

Torphy, they have the effect of lowering the developer's tax 

rate, rendering the rate unequal among taxpayers. The 

dispositive question then is whether the cash grants act as a 

tax rebate, credit, or exemption that has the effect of imposing 

an unequal tax burden upon other Eau Claire taxpayers. We 
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conclude that the TIF cash grants do not have that effect and 

therefore do not violate the Uniformity Clause.

¶136 This court has already rejected a facial and asapplied constitutional challenge to the TIF statute in Sigma 

Tau, 93 Wis. 2d at 412. Sigma Tau determined:

With respect to the question of uniformity of taxation 

among individual taxpayers, the Tax Increment Law is 

clearly distinguishable, both in form and effect, from 

the tax provisions struck down by the court in 

Gottlieb and in Torphy. In both of those cases the 

court based its conclusion that the provisions were 

unconstitutional upon its finding that taxpayers 

owning equally valuable property were required to pay 

disproportionate amounts of taxes.

Under tax increment financing, however, there is no 

such disproportionate impact upon taxpayers within the 

same territorial boundaries of the unit imposing the 

tax. All taxpayers . . . continue to be taxed at a 

uniform rate based upon valuations uniformly arrived 

at. No taxpayer or group of taxpayers is being 

singled out for preferential treatment either in the 

form of an exemption from taxation or a tax credit. 

Thus, we conclude, taxation under tax incremental 

financing is uniform.

Id. at 412.

¶137 Plaintiffs contend the cash grant provision of the TIF 

statute did not exist at the time Sigma Tau declared the TIF law 

constitutional. The City disputes this, arguing cash grants 

have always been a part of the TIF framework. The State, in an 

amicus brief, agrees: "'Cash grants' to private developers have 

always been part of the definition of 'eligible project costs' 

under Wisconsin's TIF law." It is not necessary to resolve this 

dispute in reaching our conclusion that the TIF cash grants do 

not violate the Uniformity Clause.
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¶138 The purpose of the TIF law is "to provide a mechanism 

for cities to finance projects commenced" under redevelopment 

statutes or to combat blighted areas. Id. at 403. Wisconsin 

Stat. § 66.1105(2)(f)2.d allows the City to give cash grants to 

developers if they "signed a development agreement with the 

city."13 The cash grants are not a tax rebate, credit, or 

exemption. They are payments pursuant to an agreement to engage 

in redevelopment projects. The cash grants are not linked to 

future property tax payments, do not give the developer a 

property tax break, and do not operate as a tax refund. The 

grants do not have the effect of creating an unequal tax burden 

on similarly situated taxpayers. They do not lower the 

developer's tax burden or require other taxpayers to pay more 

than their fair share. Both the developer and other taxpayers 

are taxed at the same rate based on the equalized value of their 

property. Thus, the cash grants do not apportion the tax burden 

unevenly. The City effectively pays developers to undertake a 

project it would otherwise plan, manage, and pay for itself, if 

it had the ability to do so. The City pays for development 

services using revenues the project itself will generate. See

Monroe WaterWorks Co. v. City of Monroe, 110 Wis. 11, 12-13, 85 

N.W. 685 (1901) (concluding City's contract agreeing to pay for 

 

13 Wisconsin Stat. § 1105(2)(f)2.d provides as 

material: " . . . none of the following may be included as 

project costs for any tax incremental district . . . [c]ash 

grants made by the city to owners, lessees, or developers of 

land that is located within the tax incremental district unless 

the grant recipient has signed a development agreement with the 

city . . . ."
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water services is not unlawful grant of immunity from taxes when 

"the sum so stipulated to be paid is a fair and just allowance 

to compensate for the actual value of the services to be 

rendered, and that the stipulation is bona fide, and not in the 

nature of an evasion of the law against exemption from taxes."). 

The developer uses the grants to defray the costs of economic 

development, not to lower or offset property tax payments.

¶139 The TIF cash grants do not alter the uniformity of tax 

payments among taxpayers or impose an unequal tax burden. They 

do not impose on other taxpayers a disproportionate amount of 

taxes like the tax laws found unconstitutional in Gottlieb and 

Torphy. Accordingly, we conclude the TIF cash grants do not 

violate the Uniformity Clause.

III. CONCLUSION

¶140 Plaintiffs have standing in this matter and the law 

permits them to seek both declaratory judgment and certiorari 

review. Plaintiffs' Complaint alleges sufficient facts to 

withstand a motion to dismiss on each of its claims. The TIF 

cash grants do not have the effect of imposing an unequal tax 

burden; therefore, the TIF statute, as applied to developerowners receiving TIF grants, comports with the Uniformity Clause 

of the Wisconsin Constitution, requiring dismissal of Count 4.

¶141 The court says Plaintiffs' claims must be dismissed 

because "a court cannot issue a declaration regarding the wisdom 

of a legislative determination." Majority op., ¶40. But it 

says so only because it believes facts are contingent on 

municipal policy choices, a paradigm that is untenable, 
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unworkable, and unintelligible. Consequently, the court 

abdicated the judicial duty to decide whether a municipal body 

properly applied the law. Because the court jettisons 

Plaintiffs' cause of action without basis, we respectfully 

dissent.
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