2023 WI 8

SUPREME COURT OF WISCONSIN

CASE NO.: 2019AP1987

COMPLETE TITLE: Lowe's Home Centers, LLC,

 Plaintiff-Appellant-Petitioner,

 v.

City of Delavan,

 Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 400 Wis. 2d 542, 970 N.W.2d 568

(2022 – unpublished)

OPINION FILED: February 16, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 28, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Walworth 

JUDGE: Daniel Steven Johnson 

JUSTICES:

ANN WALSH BRADLEY, J., delivered the majority opinion of the 

Court, in which ZIEGLER, C.J., ROGGENSACK, DALLET, HAGEDORN, and 

KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a 

concurring opinion, in which ROGGENSACK, J., joined. 

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-appellant-petitioner, there were briefs 

filed by Thomas R. Wilhelmy, Daniel P. Deveny and Fredrikson & 

Byron, P.A., Minneapolis. There was an oral argument by Daniel 

P. Deveny. 

For the defendant-respondent, there was a brief filed by 

Lori M. Lubinksy, Danielle Baudhuin Tierney, and Axley 

Brynelson, LLP, Madison. There was an oral argument by Danielle 

Baudhuin Tierney. 
2

An amicus curiae brief was filed by Jason P. Gehring, 

Dustin T. Woehl, and Kasdorf, Lewis & Swietlick, S.C., 

Milwaukee, on behalf of the Village of Plover, Wisconsin. 

An amicus curiae brief was filed by Misha Tseytlin, Kevin 

M. LeRoy, and Troutman, Pepper, Hamilton, Sanders LLP, Chicago, 

on behalf of the Chamber of Commerce of the United States of 

America. 

An amicus curiae brief was filed by Scott E. Rosenow and 

the WMC Litigation Center, Madison, on behalf of Wisconsin 

Manufacturers and Commerce, Inc. 

An amicus curiae brief was filed by Amy R. Seibel, Claire 

Silverman, and Seibel Law Offices, LLC, Mequon, and the League 

of Wisconsin Municipalities, Monona, on behalf of the League of

Wisconsin Municipalities. There was an oral argument by Amy R. 

Seibel. 
2023 WI 8

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2019AP1987

(L.C. No. 2016CV589 & 2017CV432)

STATE OF WISCONSIN : IN SUPREME COURT

Lowe's Home Centers, LLC,

 Plaintiff-Appellant-Petitioner,

 v.

City of Delavan,

 Defendant-Respondent.

FILED

FEB 16, 2023

Sheila T. Reiff

Clerk of Supreme Court

ANN WALSH BRADLEY, J., delivered the majority opinion of the 

Court, in which ZIEGLER, C.J., ROGGENSACK, DALLET, HAGEDORN, and 

KAROFSKY, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a 

concurring opinion, in which ROGGENSACK, J., joined. 

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

¶1 ANN WALSH BRADLEY, J. The petitioner, Lowe's Home 

Centers, LLC, seeks review of an unpublished per curiam decision 

of the court of appeals affirming the circuit court's 

determination that the City of Delavan's assessments of Lowe's' 
No. 2019AP1987 

2

property for the 2016 and 2017 tax years were not excessive.1 

Lowe's contends that the City's assessments should not have 

received a presumption of correctness and that the assessments

improperly excluded comparable properties for the sole reason 

that those properties were unoccupied.

¶2 Specifically, Lowe's contends that the City's 

assessments should not have received a presumption of 

correctness because, it argues, they were conducted in violation 

of the dictates of the Wisconsin Property Assessment Manual (the 

Manual). Further, it asserts that the vacant big-box retail 

locations it presented to the circuit court are comparable to 

the subject property and thus should have been considered in the 

City's assessments. 

¶3 The City argues to the contrary, contending that the 

presumption of correctness was appropriately afforded to its 

assessments. It additionally asserts that the unoccupied 

properties Lowe's presented as comparable properties were 

properly excluded from the analysis. 

¶4 We determine that the assessments in this case were 

properly afforded a presumption of correctness. Pursuant to 

Wis. Stat. § 70.49(2) (2019-20),2 the presumption attaches upon 

 

1 Lowe's Home Centers, LLC v. City of Delavan, No. 

2019AP1987, unpublished slip op. (Wis. Ct. App. July 28, 2021) 

(per curiam) (affirming the order of the circuit court for 

Walworth County, Daniel Steven Johnson, Judge).

2 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise indicated.
No. 2019AP1987 

3

the filing of the assessment along with the assessor's 

affidavit.

¶5 We further determine that Lowe's failed to demonstrate 

that the City's assessments were excessive. Giving deference to 

the circuit court's factual findings, including its credibility 

determinations, we conclude that Lowe's did not provide 

significant contrary evidence sufficient to overcome the 

presumption of correctness. 

¶6 Accordingly, we affirm the decision of the court of 

appeals.

I

¶7 Lowe's is the owner of property in the City of 

Delavan. The property consists of 14.525 acres on which sits a 

134,574-square-foot Lowe's Home Improvement store. Construction 

on the building was completed in 2005, and Lowe's has occupied 

the building since that time. 

¶8 In 2013, the City assessor conducted a revaluation of 

the property, and arrived at an assessed value of $8,922,300. 

No changes were made to this value for purposes of the 2016 and 

2017 assessments.

¶9 Lowe's challenged the City's assessments for 2016 and 

2017. It sought a waiver of its hearing before the City's Board 

of Review and the Board granted the waiver, thereby disallowing 
No. 2019AP1987 

4

the claim.3 After its claim was disallowed, Lowe's filed this 

action under Wis. Stat. § 74.37(3)(d),4 asserting that the 

assessments of its property for the 2016 and 2017 tax years were 

excessive and seeking to recover the excess amount it believed 

it had paid.

¶10 The circuit court held a three-day bench trial on the 

matter. At trial, City Assessor Luke Mack testified, as did the 

City's expert appraiser Scott Chapko. Lowe's offered testimony 

from two experts, Michael MaRous and Brett Harrington.5 

¶11 Mack testified regarding the method he employed for 

valuing the property for 2016 and 2017. He described those 

assessments as "maintenance" assessments, which means that the 

property was not subject to a full revaluation.6 Mack further 

 

3 See Wis. Stat. § 70.47(8m) ("The board may, at the request 

of the taxpayer or assessor, or at its own discretion, waive the 

hearing of an objection . . . . For purposes of this 

subsection, if the board waives the hearing, the waiver 

disallows the taxpayer's claim on excessive assessment under s. 

74.37(3) and, notwithstanding the time period under s. 

74.37(3)(d), the taxpayer has 60 days from the notice of the 

hearing waiver in which to commence an action under s. 

74.37(3)(d).").

4 Pursuant to Wis. Stat. § 74.37(3)(d), "[i]f the taxation 

district or county disallows the claim, the claimant may 

commence an action in circuit court to recover the amount of the 

claim not allowed."

5 The circuit court's decision did not focus on Harrington's 

testimony. Accordingly, although we briefly describe the 

testimony of the other witnesses, we do not recount that of 

Harrington.

6 See Wis. Stat. § 70.05(5)(b) ("Each taxation district 

shall assess property at full value at least once in every 5-

year period.").
No. 2019AP1987 

5

testified that the prior assessment of the property, completed 

in 2013, was done using the cost approach,7 that replacement 

costs were based on "Marshall and Swift cost data,"8 and that 

market adjustments were applied for depreciation and additional 

obsolescence. He also compared the assessments to recent 

revaluations in other communities.

¶12 Lowe's' expert, MaRous, testified that the property 

should have been valued at a much lower level than the City had 

offered. In MaRous's opinion, the subject property had a fair 

market value of $4.6 million——just over half of the City's 

assessed value. 

¶13 To arrive at this valuation, MaRous used the sales 

comparison approach. In doing so, he compared the Lowe's 

property to six other recently-sold properties that he had 

determined to be "comparable" to the Lowe's property. 

¶14 Three of the six comparable sites MaRous identified 

(what MaRous termed sales one, three, and six) were former 

American TV locations. Two of these sites were sold to 

Steinhafel's furniture and one was sold and converted into a go-

 

7 The "cost approach" to valuation "seeks to measure the 

cost to replace the property." Adams Outdoor Advert., Ltd. v. 

City of Madison, 2006 WI 104, ¶35, 294 Wis. 2d 441, 717 

N.W.2d 803.

8 Marshall and Swift "publishes materials used by appraisers 

and state and local taxing authorities." Marshall & Swift v. BS 

& A Software, 871 F. Supp. 952, 954 (W.D. Mich. 1994). The 

Marshall and Swift handbook has been described as a 

"standardized publication in the field of real estate." In Re 

Thompson, 18 B.R. 67, 69 (Bankr. E.D. Tenn. 1982). 
No. 2019AP1987 

6

kart racing track, bar, and restaurant. All three were in 

receivership9 when they were sold.

¶15 MaRous's comparable sale number two was a former KMart store that, by MaRous's testimony, had been vacant and 

marketed for "2 to 3 years" prior to being sold. Comparable 

sale number four was a former Lowe's store in Brown Deer. The 

property had been built in 2006 and vacated by Lowe's just five 

years later. It sat vacant for two years before being purchased 

by Walmart in 2013. MaRous further advanced that the "exposure 

time," or the length of time it takes a property to sell on the 

open market, for properties similar to the subject property in 

the same geographical area is two to three years.

¶16 Finally, MaRous offered comparable sale number five, a 

vacant former Target store. This property was "vacant before 

the purchase for about four years." It was ultimately purchased 

by a developer who "broke it up into two [lots] . . . because 

that's where the demand was."

¶17 The City countered Lowe's' expert with its own expert, 

Scott Chapko. Chapko valued the property at $9.2 million, 

slightly higher than the assessed value. Like MaRous, he 

arrived at this valuation using the sales comparison approach, 

although Chapko used different properties as comparables than 

MaRous used. 

¶18 Chapko testified that he did not think it was 

appropriate to use "dark" stores or "distressed" properties to 

 

9 See Wis. Stat. ch. 128.
No. 2019AP1987 

7

compare to the occupied Lowe's property.10 Accordingly, Chapko 

did not use any such properties in his analysis. All of 

Chapko's submitted comparable sales were occupied at the time of 

sale and had market-rate leases in place. None was sold under 

"duress," such as a bankruptcy or foreclosure. Chapko 

additionally testified that the exposure time for a property 

like the subject property is in the "overall range of 2 to 18 

months."

¶19 The circuit court ultimately upheld the City's 

assessments. Specifically, it determined that "the evidence 

presented by Lowe's in this case is significantly less credible 

than that presented by the City when it comes to a proper value 

to be attached to this real estate for the years 2016 and 2017." 

In discussing MaRous's appraisal, the circuit court discounted 

 

10 The Manual discourages the use of "dark" and "distressed" 

properties "as comparable sales unless the subject property is 

similarly dark or distressed." 1 Wisconsin Property Assessment 

Manual 9-12 (2016). Pursuant to the Manual, "[a] vacant store 

is considered dark when it is vacant beyond the normal time 

period for that commercial real estate marketplace and can vary 

from one municipality to another." Id. As such, "vacant" and 

"dark" are not synonyms. For further discussion on the 

distinction between "vacant" and "dark," see infra, ¶¶45-46. 

The Manual does not specifically define "distressed," but it 

counsels that "[a] recent court case stated distressed 

properties are not seen as meaningfully comparable to operating 

properties." 1 Wisconsin Property Assessment Manual 9-12 

(citing Bonstores Realty One, LLC v. City of Wauwatosa, 2013 WI 

App 131, ¶¶21, 22, 34, 35, 351 Wis. 2d 439, 839 N.W.2d 893).

All references to the Wisconsin Property Assessment Manual 

are to the 2016 version unless otherwise indicated.

 
No. 2019AP1987 

8

MaRous's claimed comparables two and five in that they "were 

both vacant beyond the 2-3 year window that Mr. MaRous 

apparently identifies as the normal exposure time for the 

Delavan area," classifying those properties as "dark" for this 

reason. It further explained: 

In that these two properties are dark they have a 

major deficiency when compared with the Lowe's store 

in question. Further, the fact that they were 

considered comparable sales at all is in apparent 

direct conflict with the [principles] outlined in the 

Manual stating not to use dark properties in 

performing an appraisal unless the subject property is 

also dark.

¶20 The circuit court also found unpersuasive MaRous's 

reliance on what it considered "distressed" properties. It 

observed:

[H]alf of the comparable sales used by Mr. MaRous were 

in receivership. The Court might be able to overlook 

one comparable sale in receivership or under possible 

duress as an outlier if it was able to put that 

outlier in the context of five other properties 

without significant flaws, not in receivership, with 

similar adjusted values. However, the Court cannot do 

so here because of the number of properties in 

receivership and the flaws of the other nonreceivership comparable sales.

¶21 Due to the "significant deficiencies" in MaRous's 

appraisal, the circuit court concluded that Lowe's had not 

provided significant contrary evidence that the City's valuation 

was excessive. Accordingly, it denied Lowe's' request for a 

refund of excessive taxes.

¶22 Lowe's appealed and the court of appeals affirmed the 

circuit court's decision. Lowe's Home Centers, LLC v. City of 
No. 2019AP1987 

9

Delavan, No. 2019AP1987, unpublished slip op. (Wis. Ct. App. 

July 28, 2021) (per curiam). Emphasizing that the circuit court 

"is the ultimate arbiter of credibility," the court of appeals 

concluded that "Lowe's has not overcome the presumption of 

correctness that attached to the City's assessments and that the 

record supports the circuit court's determinations in this 

case." Id., ¶¶43, 48. Lowe's petitioned for this court's 

review.

II

¶23 We are called upon to review the court of appeals' 

determination on an excessive assessment claim brought pursuant 

to Wis. Stat. § 74.37(3)(d). An action filed pursuant to 

§ 74.37 seeks a trial before the circuit court, and is distinct 

from a certiorari action.11 Metro. Assocs. v. City of Milwaukee, 

2018 WI 4, ¶23, 379 Wis. 2d 141, 905 N.W.2d 784. Accordingly, 

 

11 Certiorari is a mechanism by which a court may test the 

validity of a decision rendered by a municipality, 

administrative agency, or other quasi-judicial tribunal. State 

ex rel. Anderson v. Town of Newbold, 2021 WI 6, ¶11, 395 

Wis. 2d 351, 954 N.W.2d 323. Such a proceeding is "limited to 

the record before the board and addresses only whether the 

board's actions were: (1) within its jurisdiction; (2) 

according to law; (3) arbitrary, oppressive, or unreasonable and 

represented its will and not its judgment; and (4) supported by 

evidence such that the board might reasonably make the order or 

determination in question." State ex rel. City of Waukesha v. 

City of Waukesha Bd. of Rev., 2021 WI 89, ¶19, 399 Wis. 2d 696, 

967 N.W.2d 460. In contrast, an excessive assessment action 

under Wis. Stat. § 74.37 is not confined to the record before 

the board and new evidence may be presented. Trailwood 

Ventures, LLC v. Village of Kronenwetter, 2009 WI App 18, ¶7, 

315 Wis. 2d 791, 762 N.W.2d 841.
No. 2019AP1987 

10

we review the circuit court's determination, not that of the 

assessor or Board of Review. Id.

¶24 In our review, we must interpret and apply Wis. Stat. 

§§ 70.32 and 70.49 to determine whether the appraisals at issue 

followed the statutory directives. Statutory interpretation and 

application present questions of law that we review 

independently of the determinations rendered by the circuit 

court and court of appeals. Id., ¶24.

¶25 Factual findings made by the circuit court will not be 

disturbed unless they are clearly erroneous. Id., ¶25. A 

finding of fact is clearly erroneous if it is against the great 

weight and clear preponderance of the evidence. Id., ¶62. It 

is within the province of the factfinder to make determinations 

of the weight and credibility of evidence. Id., ¶25.

III

¶26 We begin by setting forth the principles and 

methodology that guide property tax assessment in Wisconsin. 

Subsequently, we discuss the presumption of correctness to which 

an assessment is entitled. Finally, we address the City's 

assessments of Lowe's' property.

A

¶27 Valuation of real estate for tax assessment purposes 

is governed by Wis. Stat. § 70.32. State ex rel. Collison v. 

City of Milwaukee Bd. of Rev., 2021 WI 48, ¶23, 397 Wis. 2d 246, 

960 N.W.2d 1. Pursuant to § 70.32(1), property shall be valued 

"in the manner specified in the Wisconsin property assessment 

manual." Subsection (1) further sets forth a hierarchical 
No. 2019AP1987 

11

valuation methodology for arriving at a property's fair market 

value.12 See State ex rel. Markarian v. City of Cudahy, 45 

Wis. 2d 683, 685-86, 173 N.W.2d 627 (1970). 

¶28 Wisconsin Stat. § 70.32(1) lists three sources of 

information that inform tax assessments. The order in which 

these sources are listed is indicative of the quality of 

information each source provides. Collison, 397 Wis. 2d 246, 

¶24. This methodology has been described as providing three 

"tiers" of analysis. Metro. Assocs., 379 Wis. 2d 141, ¶31.

¶29 An arm's-length sale of the subject property is the 

best information of a property's fair market value, and is thus 

the first source of information to which an assessor should look 

in conducting an assessment. Collison, 397 Wis. 2d 246, ¶25. 

Examination of a recent arm's-length sale is known as a tier 1 

analysis. Id. If the property has not been recently sold, then 

the appraiser moves to a tier 2 analysis, examining recent 

 

12 In full, Wis. Stat. § 70.32(1) provides:

Real property shall be valued by the assessor in the 

manner specified in the Wisconsin property assessment 

manual provided under s. 73.03(2a) from actual view or 

from the best information that the assessor can 

practicably obtain, at the full value which could 

ordinarily be obtained therefor at private sale. In 

determining the value, the assessor shall consider 

recent arm's-length sales of the property to be 

assessed if according to professionally acceptable 

appraisal practices those sales conform to recent 

arm's-length sales of reasonably comparable property; 

recent arm's-length sales of reasonably comparable 

property; and all factors that, according to 

professionally acceptable appraisal practices, affect 

the value of the property to be assessed.
No. 2019AP1987 

12

arm's-length sales of reasonably comparable properties (the 

"sales comparison" approach). Id. It is this tier 2 analysis 

that is before us in this case.

¶30 Finally, when both tier 1 and tier 2 are unavailable, 

an assessor moves to tier 3, under which the assessor may 

consider all the factors collectively that have a bearing on the 

value of the property. Id., ¶26. These factors include cost, 

depreciation, replacement value, income, industrial conditions, 

location and occupancy, sales of like property, book value, 

amount of insurance carried, value asserted in a prospectus, and 

appraisals produced by the owner. Id.; State ex rel. Mitchell 

Aero, Inc. v. Bd. of Rev. of City of Milwaukee, 74 Wis. 2d 268, 

278, 246 N.W.2d 521 (1976). 

¶31 Property owners who are dissatisfied with the assessed 

value of their property may file an objection to the assessment 

with the municipal board of review. Wis. Stat. § 70.47(7); 

State ex rel. Nudo Holdings, LLC v. Bd. of Rev. for City of 

Kenosha, 2022 WI 17, ¶9, 401 Wis. 2d 27, 972 N.W.2d 544. The 

board of review is a quasi-judicial body that hears evidence and 

decides whether the assessor's valuation is correct. State ex 

rel. City of Waukesha v. City of Waukesha Bd. of Rev., 2021 WI 

89, ¶16, 399 Wis. 2d 696, 967 N.W.2d 460. It is not an 

assessing body. Id. If a property owner remains dissatisfied 

after the board's decision, the property owner may appeal the 
No. 2019AP1987 

13

board's decision through one of three statutory avenues.13 Id., 

¶17. As relevant here, Lowe's brought an excessive assessment 

action under Wis. Stat. § 74.37. 

B

¶32 With this background in hand, we next clarify the 

operation of the presumption of correctness to which assessments 

are entitled. As a starting point to the examination of a 

property owner's challenge to a tax assessment pursuant to Wis. 

Stat. § 74.37, the assessor's valuation is presumed to be 

correct. Wis. Stat. § 70.49(2); Metro. Assocs., 379

Wis. 2d 141, ¶50. Such a presumption may be rebutted if the 

assessor did not correctly apply the Manual and Wisconsin 

statutes or if a challenger presents significant contrary 

evidence. Metro. Assocs., 379 Wis. 2d 141, ¶50; Allright 

Props., Inc. v. City of Milwaukee, 2009 WI App 46, ¶12, 317 

Wis. 2d 228, 767 N.W.2d 567.

¶33 However, Lowe's contends that the assessments in this 

case are not entitled to the presumption of correctness. 

Pointing to this court's statement that "[n]o presumption of 

correctness may be accorded to an assessment that does not apply 

the principles in the Property Assessment Manual," Walgreen Co. 

v. City of Madison, 2008 WI 80, ¶17, 311 Wis. 2d 158, 752 

 

13 The three options for property owners who wish to appeal 

a board decision are: (1) certiorari review pursuant to Wis. 

Stat. § 70.47(13), (2) a written complaint with the Department 

of Revenue to revalue the property under Wis. Stat. § 70.85, and 

(3) an excessive assessment action pursuant to Wis. Stat. 

§ 74.37. City of Waukesha, 399 Wis. 2d 696, ¶17.
No. 2019AP1987 

14

N.W.2d 687, Lowe's asserts that because the assessments here 

deviated from the Manual (an assertion which we will address 

below), the presumption does not attach in the first instance.

¶34 Lowe's misapprehends the application of the 

presumption. Its argument is incorrect as a matter of both 

statutory law and logic.

¶35 The statutory basis for the presumption, Wis. Stat. 

§ 70.49(2), provides:

The value of all real and personal property entered 

into the assessment roll to which such affidavit is 

attached by the assessor shall, in all actions and 

proceedings involving such values, be presumptive 

evidence that all such properties have been justly and 

equitably assessed in proper relationship to each 

other.

For our purposes, the key passage from the statute sets forth 

that the assessment becomes "presumptive evidence" when it is 

"entered into the assessment roll" and includes "such 

affidavit . . . attached by the assessor." § 70.49(2). The 

plain language of this provision thus compels only one 

conclusion: that the presumption of correctness attaches at the 

filing of the assessment by the assessor along with the required 

affidavit. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 

2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (setting forth 

that statutory interpretation begins with the language of the 

statute, and if the meaning is plain, "we ordinarily stop the 

inquiry"). 

¶36 Further, Lowe's' proffered analysis suffers from 

backward logic. Rather than apply the presumption and then 
No. 2019AP1987 

15

determine if significant contrary evidence overcomes the 

presumption, Lowe's would have us endorse an analysis that would 

first examine the evidence and make a determination as to 

whether the assessment complied with the Manual and only then

determine whether the presumption applies. 

¶37 This is not how a presumption works. If an assessment 

is conducted contrary to the dictates of the Manual, this does 

not merely mean that the presumption does not initially attach. 

If, in the context of a Wis. Stat. § 74.37 action, the failure 

to follow the Manual results in an excessive assessment, then 

the presumption is overcome and the assessment must be set 

aside. 

¶38 We acknowledge that this court's cases have indicated 

that "[n]o presumption of correctness may be accorded to an 

assessment that does not apply the principles in the Property 

Assessment Manual." See Walgreen Co., 311 Wis. 2d 158, ¶17; 

Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, 

¶56, 294 Wis. 2d 441, 717 N.W.2d 803. However, Walgreen Co. did 

not cite Wis. Stat. § 70.49(2) and thus provides no insight into 

its application. Although § 70.49(2) was cited in Adams Outdoor 

Advertising, it was referenced only for the premise that the 

court "must give presumptive weight to the City's assessment." 

Adams Outdoor Advert., 294 Wis. 2d 441, ¶25. Given the plain 

language of § 70.49(2), we take the court's statements in 

Walgreen Co. and Adams Outdoor Advertising to mean not that the 

presumption does not initially attach to an assessment that does 

not follow the Manual's directives, but that the presumption is 
No. 2019AP1987 

16

overcome in such a situation. Indeed, it is apparent from the 

plain text of § 70.49(2) that the presumption attaches when the 

assessment is filed along with the proper affidavit.

¶39 We thus conclude that the assessments in this case 

were properly afforded a presumption of correctness. Pursuant 

to Wis. Stat. § 70.49(2), the presumption attaches upon the 

filing of the assessment along with the assessor's affidavit.

C

¶40 Having established that the presumption of correctness 

attaches to the assessments, we turn next to address whether 

Lowe's presented significant contrary evidence sufficient to 

overcome the presumption and demonstrate that the City's 

assessments were excessive.

¶41 Although Lowe's conceded at oral argument that "all 

the [proposed comparable] stores were vacant at the time they 

sold," it contends that the assessor deviated from the Manual by 

categorically excluding "vacant" and "dark" stores from a tier 2 

sales comparison analysis. It further contends that it 

presented significant contrary evidence sufficient to overcome 

the presumption in the form of MaRous's appraisal.

¶42 In evaluating Lowe's' arguments, we examine first the 

relevant portions of the Manual. This case revolves around the 

question of what constitutes a "comparable" property in the 

context of a tier 2 sales comparison analysis. The sales 

comparison approach is "based on the premise that similar 

properties will sell for similar prices on the open market." 1 

Wisconsin Property Assessment Manual 7-24. 
No. 2019AP1987 

17

¶43 The Manual "does not leave the determination of 

whether properties are reasonably comparable wholly to the 

discretion of an appraiser." Regency W. Apartments LLC v. City 

of Racine, 2016 WI 99, ¶61, 372 Wis. 2d 282, 888 N.W.2d 611. 

Accordingly, it provides some guidance as to how assessors are 

to evaluate whether property is indeed "comparable." 

Specifically, the Manual states: "Comparable sales refer to 

properties that are similar to the subject property in age, 

condition, use, type of construction, location, design, physical 

features and economic characteristics." 1 Wisconsin Property 

Assessment Manual 7-24. "The more similar the sold property is 

to the subject, the more reliable is the sale price as an 

indicator of the value of the subject property." Id.

¶44 Providing further specific guidance in the valuation 

of commercial properties through the sales comparison approach, 

the Manual states that "[w]hen valuing properties, the assessor 

should choose comparable sales exhibiting a similar highest and 

best use and similar placement in the commercial real estate 

marketplace." Id. at 9-12. The Manual additionally sets forth 

language that is critical to the issue presented in this case 

regarding the use of "vacant" and "dark" properties in 

commercial valuation:

The assessor should avoid using sales of improved 

properties that are vacant ("dark") or distressed as 

comparable sales unless the subject property is 

similarly dark or distressed. A vacant store is 

considered dark when it is vacant beyond the normal 

time period for that commercial real estate 

marketplace and can vary from one municipality to 
No. 2019AP1987 

18

another. A recent court case stated distressed 

properties are not seen as meaningfully comparable to 

operating properties.

Id. (citing Bonstores Realty One, LLC v. City of Wauwatosa, 2013 

WI App 131, ¶¶21, 22, 34, 35, 351 Wis. 2d 439, 839 N.W.2d 893).

¶45 Before continuing in our analysis, we take a brief 

detour to discuss the terminology that we employ. Some 

confusion has arisen due to inconsistent usage of the terms 

"vacant" and "dark." Although the court of appeals in this case 

seemingly used the terms interchangeably, they have different 

meanings. 

¶46 We acknowledge that the Manual may not be a model of 

clarity on the subject, but its language does indicate that 

"vacant" and "dark" are not synonymous. The Manual states that 

"[a] vacant store is considered dark when it is vacant beyond 

the normal time period for that commercial real estate 

marketplace and can vary from one municipality to another." Id. 

Thus, "dark," as used by the Manual, is a subset of "vacant." 

In other words, all dark stores are vacant, but not all vacant 

stores are dark.

¶47 After this brief detour, we return to the parties' 

arguments. Lowe's' main argument before this court is that the 

circuit court erred in rejecting MaRous's proffered "comparable" 

properties for purposes of a tier 2 sales comparison analysis. 

Specifically, it contends that the property's vacancy status 

should not be considered, and that the property must be valued 

with respect to the owner's fee simple interest only. To 
No. 2019AP1987 

19

support this argument, Lowe's looks to Walgreen Co., 311 

Wis. 2d 158.

¶48 In Walgreen Co., the business at issue, Walgreens,

operated pursuant to a business model under which it would 

contract with a real estate developer to construct properties at 

Walgreens' direction. Id., ¶6. In return, Walgreens leased the 

properties from the developer at above-market rates to 

compensate for the developer's costs. Id. 

¶49 When assessing property values, the City of Madison

appraised the "leased fee interest," i.e., it considered the 

actual above-market contract rents in its analysis. Id., ¶10. 

In contrast, Walgreens advanced an appraisal that "appraised the 

fee simple interest in the two properties without consideration 

of the lease." Id. The court addressed the issue of "whether a 

property tax assessment of retail property leased at above 

market rent values should be based on market rents (as Walgreens 

argue[d]) or if such assessments should be based on the above 

market rent terms of Walgreens' actual leases (as the City 

argue[d])." Id., ¶2. 

¶50 This court agreed with Walgreens. It determined, 

"consistent with the nationally recognized principle that '[a] 

lease never increases the market value of real property rights 

to the fee simple estate,'" that Wis. Stat. § 70.32(1) 

"proscribes assessing real property in excess of market value." 

Id., ¶3. The Walgreen Co. court also concluded that "an income 

approach assessment of a leased retail property's fair market 

value of the fee simple interest [must] be based on market lease 
No. 2019AP1987 

20

rates, not actual contract rates, as long as encumbrances to the 

property do not cause its leased fee value to fall below a 

market rate value." Id.

¶51 Lowe's argues that consideration of the occupancy 

status of a store in a valuation necessarily means that the 

value of the business is being taken into account rather than 

just the fee simple value of the land. It highlights the 

Walgreen Co. court's statement that "the valuation of the fair 

market value of property for purposes of property taxes is by 

its nature different from business, or income tax assessment." 

Id., ¶65. "[A]n assessor's task is to value the real estate, 

not the business concern which may be using the property." Id.

(quoting Waste Mgmt. of Wis., Inc. v. Kenosha Cnty. Bd. of Rev., 

184 Wis. 2d 541, 565, 516 N.W.2d 695 (1994)). Pointing to 

language in Walgreen Co. indicating that "a property assessor's 

task is to identify the market value of a fee simple interest," 

id., ¶20, Lowe's argues that consideration of vacancy status 

takes the assessor outside of these confines. 

¶52 Walgreen Co. does not compel the outcome Lowe's seeks, 

and its holding is not as broad as Lowe's claims. The court in 

Walgreen Co. made a narrow determination regarding how abovemarket rent is to be treated for tax assessment purposes. As 

the City here argues, Walgreen Co. does not stand for the 

blanket proposition that occupancy or vacancy has no role to 

play in valuation. 

¶53 Lowe's' argument misses the mark when it advances that 

accounting for the vacant nature of a store necessarily values 
No. 2019AP1987 

21

the business concern and not just the fee simple interest in the 

land. Many factors inform the value of land, including the 

land's viability to house a business. Saying that land is 

suitable for a successful business, or that the land has a track 

record of housing a successful business, and assigning a value 

to that fact is not the same as valuing the business itself. 

Generally, a site that can sustain a business is more valuable 

than one that cannot.14 See also 1 Wisconsin Property Assessment 

 

14 This conclusion is echoed by a position paper published 

by the International Association of Assessing Officers (IAAO), 

an organization whose standards are incorporated into the 

Manual. See 1 Wisconsin Property Assessment Manual 1-3 

("Whether or not the IAAO Standards appear in the [Manual], the

most current version in effect on January 1 of a given 

assessment year is incorporated by reference in the manual."); 

State ex rel. Collison v. City of Milwaukee Bd. of Rev., 2021 WI 

48, ¶41, 397 Wis. 2d 246, 960 N.W.2d 1. 

The IAAO states:

If the subject property is occupied, that fact 

supports the premise that there is demand for the use 

for which the property was originally designed. 

Highest and best use is likely for the continued use 

of the property in its current use.

. . .

For retail properties, value is affected by size, age, 

condition, access, traffic counts, proximity to major 

employment centers, the concentration of surrounding 

properties, population size, and household purchasing 

power, to name just a few considerations. The 

competitive advantage of a property determines its 

relative position within the market. A property that 

has significant advantages over other properties of 

the same use because of location, demographics, and 

economic forces will command a higher price and rent. 

Int'l Ass'n of Assessing Officers, Commercial Big-Box Retail: A 

Guide to Market-Based Valuation at 16 (Sept. 2017).
No. 2019AP1987 

22

Manual 7-24 ("Comparable sales refer to properties that are 

similar to the subject property in age, condition, use, type of 

construction, location, design, physical features and economic 

characteristics.") (emphasis added); id. at 7-1 ("[T]he assessor 

must not consider only the physical attributes of the land and 

improvements but the intangible benefits that are associated 

with them.").

¶54 Further, a dark property is more likely to have 

characteristics that would make it less valuable than a property 

that was on the market for a shorter period of time. For 

example, if a building has been unoccupied for a long period of 

time, it is more likely to be in some kind of disrepair and in 

turn more likely to require significant investment to make it 

usable again. 

¶55 The assessments in this case were consistent with the 

above provisions of the Manual and thus the circuit court was 

not obligated to reject the assessments. The circuit court 

determined that multiple properties on which Lowe's relied were 

not just vacant, but were dark. As to the dark properties on 

which Lowe's relies, the Manual counsels against using such 

properties as comparables to properties that are not similarly 

dark. Specifically, the Manual states: "The assessor should 

avoid using sales of improved properties that are vacant 

('dark') or distressed as comparable sales unless the subject 

property is similarly dark or distressed." Id. at 9-12. 

¶56 Further buttressing the application of this directive 

is the court of appeals' decision in Bonstores Realty One, LLC 
No. 2019AP1987 

23

v. City of Wauwatosa, 351 Wis. 2d 439, ¶¶20-22. In Bonstores, 

the court of appeals affirmed the circuit court's determination 

that an expert's opinion was unreliable because the opinion 

disregarded differences in the vacancy status of proffered 

comparable properties. Id., ¶22. Here, the circuit court's 

decision was similar to and consistent with that in Bonstores.

¶57 The Manual's directive that assessors "should avoid" 

use of vacant and dark properties in assessing occupied 

properties is consistent with general principles of real estate 

assessment. Specifically, real estate must be valued at its 

highest and best use. Collison, 397 Wis. 2d 246, ¶37. The 

highest and best use of a store in an area that is conducive to 

business (and is in fact operating as a business) is different 

from the highest and best use of a property that contains a 

failed big-box store. Lowe's' argument treats these different 

things alike, which is not the "apples to apples" comparison 

contemplated in a tier 2 analysis. See Bonstores, 351 

Wis. 2d 439, ¶21.

¶58 In examining the distressed "comparable properties" in 

receivership on which Lowe's relies, Lowe's fares no better. 

Again, the Manual counsels against the use of such properties as 

comparable, and with good reason. See 1 Wisconsin Property 

Assessment Manual 9-12. A property in receivership is often 

sold under vastly different economic conditions and subject to 

vastly different incentives from a property that is not in 

receivership. 
No. 2019AP1987 

24

¶59 To explain, "[a] Wis. Stat. ch. 128 receivership 

provides a way to liquidate the assets of a business debtor in 

an orderly and controlled manner." Kristin K. Beilke et al., 

Collections and Bankruptcy in Wisconsin § 2.16 (3d ed. 2022). 

"The object and purpose of assignment law is to afford an equal 

distribution of the assignor's estate to all creditors in 

proportion to their claims." Linton v. Schmidt, 88 Wis. 2d 183, 

198, 277 N.W.2d 136 (1979). 

¶60 This court has stated that the assignee, or receiver, 

is "the trustee for both the debtor and the creditors; with the 

duty to administer the trust property so as to pay the 

creditors, as far as possible, their just claims, and then to 

account to the debtor for the surplus." Id. However, the 

receiver is "bound to look primarily to the interests of the 

creditors." Id. Given this responsibility, differing 

incentives come into play and a sale of receivership property 

may not reflect the same price as a similar property not in 

receivership would receive on the open market. For example, a 

receiver may be motivated to sell the property more quickly so 

as to secure timely payment of creditors and avoid the building 

falling into disrepair.

¶61 Receivership can thus result in a "distressed" sale. 

Although the mere fact of a receivership does not automatically 

affect a property's market value, a claim that a distressed 

property is comparable to an operating one should be subjected 

to a court's keen scrutiny. The circuit court was therefore not 
No. 2019AP1987 

25

obligated to accept MaRous's analysis that was based on an 

equivalency between distressed and operating properties.

¶62 Given the above analysis and the circuit court's 

evaluation of the evidence presented, Lowe's' contention that it 

presented significant contrary evidence sufficient to overcome 

the presumption of correctness in this case is ultimately 

unpersuasive. In evaluating comparable properties two and five, 

the former K-Mart and Target stores, the circuit court made a 

factual determination that both of these properties were "vacant 

beyond the 2-3 year window that Mr. MaRous apparently identifies 

as the normal exposure time for the Delevan area." Accordingly, 

it concluded that these properties were "dark" and determined 

that neither of these stores was comparable to the subject 

property. It observed that "[b]oth of these stores appear to 

fall within the category of 'dark' properties based on the 

extensive period of time during which they stood empty and were 

unable to be sold" given that they were "on the market for sale 

for a period of time beyond the normal exposure time needed to 

obtain market value." Thus, the circuit court concluded that 

these properties "have a major deficiency when compared with the 

Lowe's store in question." This "deficiency" was, in the 

circuit court's view, "significant," and "call[ed] into question 

the value of [MaRous's] appraisal as a whole."

¶63 Likewise, with regard to the distressed properties 

under receivership (comparables one, three, and six, the former 

American TV properties), the circuit court similarly made a 

factual determination, reaching the "inescapable conclusion" 
No. 2019AP1987 

26

that "American TV was going out of business, subject to a 

receivership, and needed to liquidate their assets." Under such 

conditions, the circuit court determined that these properties 

were not comparable to the subject property as MaRous advanced.

¶64 Lowe's contends that MaRous "exercised exceptional 

diligence in investigating the circumstances surrounding each 

sale" of properties in receivership, asserting that "each of the 

properties were sufficiently exposed to the market with high 

demand from numerous potential buyers, and that each of the 

consummated sales was an arm's length transaction reflecting 

full fee simple market value." However, after evaluating the 

evidence, the circuit court determined that MaRous's analysis 

was deficient. 

¶65 The circuit court observed that "there is no testimony 

that any of [the distressed properties] were put on the 

traditional real estate market for sale for the normal exposure 

time before they were placed as an asset into a receivership." 

Without an explanation from MaRous, the circuit court stated 

that it "simply does not know whether the amount obtained on the 

traditional non-receivership open market would have been the 

same or different if no receivership was in place and Mr. MaRous 

did not adequately explain why the receivership itself doesn't 

matter or is irrelevant as it relates to that concern." The 

circuit court further did not accept MaRous's valuation because 

of the sheer amount of weight his analysis placed on the 

distressed sales: 
No. 2019AP1987 

27

The Court might be able to overlook one comparable 

sale in receivership or under possible duress as an 

outlier if it was able to put that outlier in the 

context of five other properties without significant 

flaws, not in receivership, with similar adjusted 

values. However, the Court cannot do so here because 

of the number of properties in receivership and the 

flaws of the other non-receivership comparable sales.

¶66 In contrast, the comparable properties presented by 

the City's appraiser, Chapko, were not dark or distressed.15 

Instead, all of these properties were occupied at the time of 

sale. Additionally, Chapko testified that there was no duress 

involved in any of the sales, none were bank-owned or in 

bankruptcy, and all were exposed to the open market for a 

sufficient period of time. 

¶67 Although it recognized that "Chapko's analysis also 

has flaws," such as his "less than ideal" use of multi-tenant 

shopping centers, the circuit court found that Chapko made 

adjustments that "are reasonable, sufficient, and credible" to 

account for differences in the comparable properties and the 

 

15 These properties were all occupied and included Shopko 

stores in Madison, Monona, and West Bend; a multi-tenant big-box 

building in Grand Chute; a big-box building in Milwaukee divided 

into two units, one leased to Pick 'n Save and the other to 

Kohl's; a multi-tenant shopping center in Racine anchored by 

Hobby Lobby, DSW, Bed Bath & Beyond, and T.J. Maxx; and a Mills 

Fleet Farm store in Hudson.

Chapko did not use all of the same properties as 

comparables for his 2017 appraisal as he used for the 2016 

appraisal, instead updating the 2017 appraisal with two new 

sales that occurred in 2016 and discarding the two oldest sales 

from the 2016 appraisal. This list reflects the properties used 

in both the 2016 and 2017 appraisals without differentiating 

between the two.
No. 2019AP1987 

28

subject property. Foremost in the circuit court's determination 

of the credibility of the dueling appraisals was the experts' 

differing methodologies and specifically their differing 

reliance on dark and distressed properties: "Maybe most 

importantly, [Chapko] did not use any properties, much less half 

of his properties that were subject to a receivership or could 

otherwise be argued as being distressed. Nor did he use any 

'dark' properties." Thus, the circuit court found "[Chapko's] 

opinion credible under the circumstances."

¶68 It is in the province of the circuit court as the 

trier of fact to make determinations of the weight and 

credibility of evidence. Metro. Assocs., 379 Wis. 2d 141, ¶61; 

Lessor v. Wangelin, 221 Wis. 2d 659, 665, 586 N.W.2d 1 (Ct. App. 

1998) ("When the trial court acts as the finder of fact, it is 

the ultimate arbiter of the credibility of the witnesses and of 

the weight to be given to each witness's testimony."). On 

review, such a determination will only be overturned if it is 

clearly erroneous. Metro. Assocs., 379 Wis. 2d 141, ¶62. Here, 

the circuit court made a determination that "the evidence 

presented by Lowe's in this case is significantly less credible 

than that presented by the City when it comes to a proper value 

to be attached to this real estate for the years 2016 and 2017." 

¶69 On this record, we cannot conclude that the circuit 

court's factual findings, including its credibility 

determinations, were clearly erroneous. The circuit court 

examined MaRous's conclusions and methodology and ultimately 

determined that the City's proffered testimony and proposed 
No. 2019AP1987 

29

valuation were more credible. Such a determination was not 

"against the great weight and clear preponderance of the 

evidence." See id. Rather, the circuit court's determination 

has support in the record as explained above.

¶70 We emphasize that our determination is based on the 

facts and circumstances presented to the circuit court, and the 

circuit court's evaluation of those facts and circumstances. At 

oral argument before this court, the parties agreed that the 

Manual does not create a categorical bright-line rule against 

the use of vacant properties in the assessment of occupied 

properties. Indeed, counsel for the City advanced: "I don't 

think there is this bright-line categorical exclusion" and 

"[t]here is no bright-line rule that says vacant properties 

cannot be used." 

¶71 Consistent with the parties' agreement, we do not read 

the Manual to strictly prohibit the use of vacant properties as 

comparable to occupied properties. The language of "should 

avoid" is not mandatory. Cf. Village of Elm Grove v. Brefka, 

2013 WI 54, ¶23, 348 Wis. 2d 282, 832 N.W.2d 121 (explaining 

that the word "shall" is presumed mandatory). We acknowledge 

that the Manual does not provide specific guidance on when a 

vacant, dark, or distressed property may be meaningfully 

comparable to an occupied property. However, we take the 

"should avoid" language to mean that the comparability of vacant 

properties to occupied properties exists along a continuum 

depending upon how long the property has been vacant as compared 

to the normal exposure time for a property of that type in the 
No. 2019AP1987 

30

same geographic area. We emphasize that the Manual urges

assessors to use caution in utilizing such comparables, as the 

economics underlying a vacancy may be indicative of a meaningful 

difference in the circumstances of the properties. 

¶72 Accordingly, we determine that Lowe's failed to 

demonstrate that the City's assessments were excessive. Giving 

deference to the circuit court's factual findings, including its 

credibility determinations, we conclude that Lowe's did not 

provide significant contrary evidence sufficient to overcome the 

presumption of correctness. 

IV

¶73 In sum, we determine that the assessments in this case 

were properly afforded a presumption of correctness. Pursuant 

to Wis. Stat. § 70.49(2), the presumption attaches upon the 

filing of the assessment along with the assessor's affidavit. 

¶74 We further determine that Lowe's failed to demonstrate 

that the City's assessments were excessive. Giving deference to 

the circuit court's factual findings, including its credibility 

determinations, we conclude that Lowe's did not provide 

significant contrary evidence sufficient to overcome the 

presumption of correctness. 

¶75 Accordingly, we affirm the decision of the court of 

appeals.

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

affirmed.
No. 2019AP1987.rgb

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¶76 REBECCA GRASSL BRADLEY, J. (concurring). The

circuit court properly afforded the City of Delavan's 2016 and 

2017 property assessments a presumption of correctness under 

Wis. Stat. § 70.49(2), and Lowe's did not demonstrate the City's 

assessments were excessive under Wis. Stat. § 74.37. 

Accordingly, the court correctly affirms the decision of the 

court of appeals. I write separately because the majority melds 

the circuit court's conclusions of law and findings of fact into 

nothing more than a credibility determination to which it 

accords deference. The standard of review instead demands 

independent review of circuit courts' conclusions of law in

cases concerning property tax assessments.

¶77 In challenging the City of Delavan's property 

assessments, Lowe's submitted an alternative tier-2 salescomparison assessment conducted by Michael MaRous. That 

assessment identified six properties MaRous deemed comparable to 

the Lowe's store in Delavan. The circuit court rejected 

MaRous's assessment, determining none of the properties were 

comparable to the subject property. Of the six, the court 

deemed three distressed, two dark, and one generally 

noncomparable to the subject property. The court ultimately 

concluded Lowe's did not present "significant contrary evidence" 

to overcome the presumption of correctness afforded the City's 

assessment. 

¶78 The majority characterizes the circuit court's 

conclusion as a "credibility determination." Majority op., ¶5. 
No. 2019AP1987.rgb

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As a result, the majority gives the circuit court's conclusion 

blanket deference. The majority's characterization is incorrect 

and its deference therefore misplaced. The circuit court's 

conclusion that Lowe's did not overcome the presumption of 

correctness is grounded in law, rather than a fact-bound 

credibility determination. To reach that conclusion, the court 

deemed the properties in MaRous's assessment to be dark, 

distressed, or generally noncomparable. Whether a property is 

dark, distressed, or generally noncomparable presents a question 

of law subject to independent review, and the circuit court's 

conclusions of law are not entitled to deference on appeal. If 

appellate courts defer to circuit courts' legal conclusions in 

property tax assessment cases, taxpayers will lose any avenue 

for meaningful appeal.

¶79 "When the question on appeal is whether a statutory 

concept embraces a particular set of factual circumstances, the 

reviewing court is generally presented with a mixed question of 

fact and law." Pabst Brewing Co. v. City of Milwaukee, 125 

Wis. 2d 437, 444, 373 N.W.2d 680 (Ct. App. 1985) (citing 

Nottelson v. DILHR, 94 Wis.2d 106, 115–16, 287 N.W.2d 763

(1980)); see also Am. Fed'n of State, Cnty., & Mun. Emps. Loc. 

1901 v. Brown Cnty., 146 Wis. 2d 728, 739–40, 432 N.W.2d 571

(1988). Questions of fact address "who did what, when or where, 

how or why." U.S. Bank Nat. Ass'n ex rel. CWCapital Asset Mgmt. 

LLC v. Vill. at Lakeridge, LLC, 538 U.S. __, 138 S. Ct. 960, 966

(2018). Questions of law ask whether the facts found satisfy 

the relevant legal standard. Id. We "uphold a circuit court's 
No. 2019AP1987.rgb

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findings of fact unless they are clearly erroneous," but 

independently review questions of law. Langlade County v.

D.J.W., 2020 WI 41, ¶¶24–25, 391 Wis. 2d 231, 942 N.W.2d 277;

see also Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 236, 

517 N.W.2d 658 (1994) (explaining when reviewing mixed questions 

this court will not upset findings of fact unless they are 

clearly erroneous but will review conclusions of law 

independently).

¶80 Property assessment cases like this one typically 

involve competing valuations accompanied by testimony of the 

assessors in support of their own. "Where there is conflicting

testimony the fact finder is the ultimate arbiter of 

credibility," and this court will therefore defer to the circuit 

court's findings of fact unless they are clearly erroneous. 

Adams Outdoor Advert., Ltd. v. City of Madison, 2006 WI 104, 

¶27, 294 Wis. 2d 441, 717 N.W.2d 803. Whether property 

valuations comport with the law, however, is a question of law, 

not fact. Wisconsin Statute § 70.32(1) provides that "[r]eal 

property shall be valued by the assessor in the manner specified 

in the Wisconsin property assessment manual. . . ." Whether the 

city complied with Wis. Stat. § 70.32 "in making its assessment 

is a question of statutory interpretation that we review de 

novo." Adams Outdoor Advert., Ltd., 294 Wis. 2d 441, ¶26.

Appellate courts "independently review whether a valuation 

complied with the statutes and the Wisconsin Property Assessment 

Manual." Bonstores Realty One, LLC v. City of Wauwatosa, 2013 

WI App 131, ¶6, 351 Wis. 2d 439, 839 N.W.2d 893. Accordingly, 
No. 2019AP1987.rgb

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whether an assessor properly deemed a property "dark" within the 

meaning of the Manual presents a mixed question of fact and law. 

¶81 To decide whether a property is dark, a circuit court 

must make findings of fact regarding how long properties similar 

to the subject property typically sit vacant and how long the 

assessed property had been vacant. 1 Wisconsin Property 

Assessment Manual 9-12 (2016). After making such findings, the 

court must determine whether the property has sat vacant beyond 

the period of time similar properties remained vacant. Id. If 

it has, the relevant property is dark and therefore not likely 

to be comparable to the subject property. See id. Because 

factual findings underlie the legal determination of whether a 

property is "dark," the question is neither purely legal nor 

purely factual. It presents a mixed question of fact and law.

¶82 How long the assessed property and comparable 

properties have sat vacant are questions of fact because they 

address what has happened. We therefore reverse those findings 

only if clearly erroneous. Whether the period of vacancy for 

the assessed property renders it "dark" presents a question of 

law because it entails application of the law to the facts 

surrounding the vacancy of comparable properties compared with 

the vacancy of the assessed property. In this case, applying 

the law to the facts yielded an obvious answer. The circuit 

court needed to decide only whether four years, the length of 

time two comparable properties in MaRous's assessment sat 

vacant, is longer than three years, the length of time 

properties similar to the assessed property typically sit 
No. 2019AP1987.rgb

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vacant. However simple that analysis might be in this case, it 

should be reviewed independently. 

¶83 The majority defers to the circuit court's conclusion 

that certain properties used by MaRous are dark, even though 

that conclusion involves the application of law to the facts. 

Majority op., ¶¶68–69. While having no effect on the outcome of 

this case——the circuit court was correct that four years is 

longer than three years——such unfettered deference may deprive a 

taxpayer of the opportunity for meaningful appeal in a closer or 

more complex case.

¶84 A more complex case is bound to arise. According to 

the Manual, comparable properties are those "similar to the 

subject property in age, condition, use, type of construction, 

location, design, physical features and economic 

characteristics." 1 Wisconsin Property Assessment Manual 7-24 

(2016). Even in this relatively straightforward case, the 

circuit court deemed one of the properties on which MaRous 

relied (a former Lowe's store in Brown Deer) generally 

noncomparable. To reach that conclusion, the circuit court 

analyzed that store's sale price, financial condition, and 

contracts with the City of Brown Deer. In doing so, the circuit 

court found "financial abnormalities," based on which it deemed 

the store generally noncomparable with the subject property. 

Similar to deciding whether a property is dark, determining 

whether a property is generally noncomparable presents a 

question of law entailing the application of law to the facts. 

Such questions of law may be more challenging than deeming a 
No. 2019AP1987.rgb

6

property dark. Appellate courts must not defer to circuit 

courts' determinations on such questions. 

¶85 Given the rigor of general-comparability analyses, 

circuit courts might err in performing them. Nevertheless, the 

majority gives the circuit court's general-comparability 

analysis deference, misconstruing its conclusions of law to be 

findings of fact. In cases like this, appellate courts must 

review such questions of law independently. If the power to tax 

is the power to destroy,1 taxpayers must have access to 

meaningful appeal when challenging property tax assessments. 

¶86 I am authorized to state that Justice PATIENCE DRAKE 

ROGGENSACK joins this concurrence.

 

1 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819).
No. 2019AP1987.rgb

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