Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Voters With Facts v. City of Eau Claire

Supreme Court of Wisconsin

June 6, 2018

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.

          Submitted on Briefs: Oral Argument: February 23, 2018

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 376 Wis.2d 479, 899 N.W.2d 706');">899 N.W.2d 706');">899 N.W.2d 706');">899 N.W.2d 706 PDC No: 2017 WI.App. 35 - Published

          Source of Appeal Circuit Court Eau Claire County No. 2015CV175 Paul J. Lenz Judge

          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 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.

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 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. 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');">899 N.W.2d 706');">899 N.W.2d 706');">899 N.W.2d 706 [hereinafter Voters], affirming the Eau Claire County circuit court's[2] 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 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 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 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, 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 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)l.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 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 [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 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 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, i_s_ 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. The court of appeals concluded, however, that these findings[11]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." 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');">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]

         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.

         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 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, 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)l.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 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 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, "[1]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 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 (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-a-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)l. 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, 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)l. 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." § 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');">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, 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]

         ¶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 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 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]

         ¶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');">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]

         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 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."
87. ... The JRB did not "review the public record, planning documents and the resolution passed by" the City Council [for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.