Voters with Facts v. City of Eau Claire

Opinion

2018 WI 63

SUPREME COURT OF WISCONSIN CASE NO.: 2015AP1858 COMPLETE TITLE: 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. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 376 Wis. 2d 479, 899 N.W.2d 706 PDC No: 2017 WI App 35 - Published

OPINION FILED: June 6, 2018 SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 23, 2018

SOURCE OF APPEAL: COURT: Circuit COUNTY: Eau Claire JUDGE: Paul J. Lenz

JUSTICES: CONCURRED: DISSENTED: R.G. BRADLEY, J., and KELLY, J., dissent (opinion filed). NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were briefs filed by Thomas C. Kamenick, Richard M. Esenberg, Brian McGrath, and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg.

For the defendants-respondents, there was a brief filed by Douglas Hoffer, assistant city attorney, and Stephen C. Nick, city attorney, with whom on the brief was Remzy D. Bitar and 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.

2 2018 WI 63 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP1858 (L.C. No. 2015CV175)

STATE OF WISCONSIN : IN SUPREME COURT

Voters with Facts, Pure Savage Enterprises, LLC, Wisconsin Three, LLC, 215 Farwell LLC, Dewloc, LLC, Leah Anderson, J. Peter Bartl, Cynthia Burton, Corinne Charlson, Maryjo Cohen, Jo Ann Hoeppner Cruz, Rachel Mantik, Judy Olson, Janeway Riley, Christine Webster, Dorothy Westermann, Janice Wnukowski, David FILED Wood and Paul Zank, JUN 6, 2018 Plaintiffs-Appellants-Petitioners, Sheila T. Reiff v. Clerk of Supreme Court

City of Eau Claire and City of Eau Claire Joint Review Board,

Defendants-Respondents.

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

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

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

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

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

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

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

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

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

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

circuit court's2 dismissal of Plaintiffs' complaint as to

declaratory judgment, but reversing and remanding as to

certiorari review.

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

four purposes: addressing blighted areas, urban rehabilitation

or conservation, industrial development, or the promotion of

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

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

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

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

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

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

real property within the district is . . . a blighted area." Id. A TID must also be approved by a joint review board

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

1 There are 19 plaintiffs total: 4 LLCs, 14 individuals, and Voters with Facts——"an unincorporated association of grassroots citizen volunteers and Eau Claire taxpayers who question the propriety of the proposed developments." 2 The Honorable Paul J. Lenz presided. 3 All references to the Wisconsin Statutes are to the 2013- 14 version unless otherwise noted.

2 No. 2015AP1858

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 3 No. 2015AP1858

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

4 No. 2015AP1858

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

Commission on August 18, 2014.

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

a resolution approving the expansion of TID 8. In its

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

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

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

'rehabilitation or conservation' within the meaning of Section

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

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

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

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

original.)

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

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

4 When a city approves tax incremental financing, the property owners within the boundaries of the tax incremental district continue to pay the same rate of property tax, and the city allocates a portion of that tax revenue to finance the approved development project. As property values rise—— presumably due to the public improvements financed by the TIDs—— property owners will pay a higher amount of property tax commensurate with the incremental increase in value of their property. This value increment——the difference between taxes paid before and taxes paid as property values rise——is what the City ultimately uses to pay for the public improvements. See City of Hartford v. Kirley, 172 Wis. 2d 191, 198-200, 493 N.W.2d 45 (1992). 5 Neither the City Common Council's resolution approving the expansion of TID 8, nor the JRB's approval of that resolution, are in the record, but the Plaintiffs' complaint alleges that these statements were contained in those documents.

5 No. 2015AP1858

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

of the real property within the amended boundary area of the

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

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

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

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

development described in the Project Plan would not occur

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

original.)

¶10 Open public hearings were held prior to the decisions

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

"numerous city residents, including many of the Plaintiffs,

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

filed a complaint seeking declaratory relief on four claims.

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

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

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

"but for" findings under Wis. Stat. § 66.1105(4m)(b)2. With regard to the City's findings, Plaintiffs alleged that the City

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

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

6 Neither the City Common Council's resolution approving the creation of TID 10, nor the JRB's approval of that resolution, are in the record, but the Plaintiffs' complaint alleges that these statements were contained in those documents. 7 The minutes from these public hearings are not in the record before the court.

6 No. 2015AP1858

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

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

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

not articulate the factual basis for this conclusory statement

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

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

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

record evidence that the development would not occur in the

[TID] without tax incremental financing." Plaintiffs thus

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

public purpose doctrine and sought a declaration that the

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

and of no force and effect."

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

disbursement of cash grants pursuant to the project plan for

TID 10. Plaintiffs alleged that "the development agreement does

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

sum payments to reimburse itself for the costs of demolishing [historic] properties," and that, "[g]iven the lump sum

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

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

argued that the cash grants violated Wis. Stat.

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

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

project plan "unlawfully reimburses the developer for

[demolishing historic properties]," and sought a declaration

7 No. 2015AP1858

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

force and effect."

¶13 The fourth claim also challenged the validity of the

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

for TID 10.8 Plaintiffs alleged that the cash grants function

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

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

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

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

Plaintiffs thus argued that the cash grants violate the

Uniformity Clause of the Wisconsin Constitution because the

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

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

and sought a declaration that the creation of TID 10 was

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

¶14 Plaintiffs asserted certiorari review as an

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

not entitled to declaratory relief." On this fifth claim, Plaintiffs argue that, "[f]or the reasons set forth above, the

8 The complaint is not clear as to whether this challenge is raised against both TIDs or just TID 10. The heading for the fourth claim states that it seeks "Declaratory Judgment relating to both TIDs," but the final paragraph requests only that "the Resolution creating TID #10 [be declared] . . . unlawful, void, and of no force and effect." Because we conclude that the claim fails to state a claim upon which relief can be granted, this discrepancy in the record does not affect our analysis.

8 No. 2015AP1858

[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

9 No. 2015AP1858

proper method for reviewing the creation or expansion of TIDs,

which is limited to certiorari.9

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

circuit court ruled from the bench and dismissed Plaintiffs'

complaint for lack of standing under the declaratory judgment

standard.10 It concluded that "none of the

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

because they "allege no particular pecuniary loss attributable

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

revenues could be affected." The circuit court further

concluded that the issue was not ripe because the alleged harms

were highly speculative, and because it concluded that "the

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

political question." In this regard, it determined that

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

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

initial policy determination of a kind that is clearly not for

judicial discretion," and "the court's undertaking an independent resolution of this matter would express a lack of

9 On June 22, 2015, Plaintiffs filed their response. On July 2, 2015, the City filed its reply. On July 16, 2015, the circuit court held a hearing on the motion. 10 There are four prerequisites a party must satisfy to seek declaratory relief: (1) a justiciable controversy must exist; (2) the controversy must be between persons whose interests are adverse; (3) the plaintiff must have a legally protectable interest in the controversy; and (4) the issue must be ripe for determination. See Loy v. Bunderson, 107 Wis. 2d 400, 410, 320 N.W.2d 175 (1982).

10 No. 2015AP1858

respect due to coordinate branches of government." On

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

Plaintiffs' complaint was filed. Plaintiffs appealed.

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

and reversed in part, remanding for further proceedings on

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

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

Plaintiffs' first four claims because it agreed that Plaintiffs

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

alleged unlawful expenditure of public funds, if otherwise

sufficient to survive a motion to dismiss, is sufficient to

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

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

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

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

claims adequately allege the unlawful expenditure of public

funds." Id., ¶18.

¶19 As to the first and second claims, the court of appeals concluded that Plaintiffs did not adequately plead the

unlawful expenditure of public funds because the plain language

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

procedural, not substantive, and therefore requires only that

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

Thus, "even assuming a neutral factfinder would conclude there

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

support [Plaintiffs'] allegation that those bodies failed to follow the statutory procedure for creating a TID." Id., ¶26. 11 No. 2015AP1858

The court of appeals concluded, however, that these findings11

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

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

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

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

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

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

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

findings.12 Id., ¶60.

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

that Plaintiffs did not adequately plead the unlawful

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

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

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

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

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

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

concluded, as a preliminary matter, that Plaintiffs' allegations "constitute[] a facial challenge to the constitutional validity

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

11 The court of appeals agreed with the circuit court that these findings are acts of legislative discretion. Voters, 2017 WI App 35, ¶30, 376 Wis. 2d 479, 899 N.W.2d 706. 12 The court of appeals noted that "[t]ypically, this court determines for itself whether a plaintiff has adequately stated a claim for certiorari relief and whether the plaintiff should prevail on the merits of his or her claim," but remanded because the parties agreed that remand was more appropriate. Id., ¶60.

12 No. 2015AP1858

because Plaintiffs assert that "in all instances, payments from

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

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

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

Plaintiffs did not adequately plead the unlawful expenditure of

public funds because limiting the cash grants to reimbursement

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

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

regarding uniformity that has not already been settled by our

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

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

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

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

court of appeals noted that Plaintiffs' "characterization of the

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

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

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

Wis. 2d 665, 849 N.W.2d 693). Thus, it concluded that Plaintiffs have "failed to state a cognizable claim." Id., ¶48.

Plaintiffs petitioned for review.

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

for review.13

13 At the same time that the petition for review was granted, motions for discovery and for disqualification of Justice Kelly were denied.

13 No. 2015AP1858

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.

14 No. 2015AP1858

A. Standing ¶26 The circuit court's and court of appeals' decisions

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

Plaintiffs' complaint to determine whether it states a claim

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

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

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

doing so, we assume without deciding that Plaintiffs had

standing to bring their claims.

B. Failure To State A Claim ¶27 "A motion to dismiss for failure to state a claim

tests the legal sufficiency of the complaint." Data Key

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

complaint depends on [the] substantive law that underlies the

claim made because it is the substantive law that drives what

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

complaint sufficiently alleges a claim upon which relief may be

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

14 This standard is derived from Wis. Stat. § 802.02(1), which states, in relevant part, as follows:

Contents of pleadings. A pleading or supplemental pleading that sets forth a claim for relief, whether an original or amended claim, counterclaim, cross claim or 3rd-party claim, shall contain all of the following:

(continued) 15 No. 2015AP1858

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

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

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

dismiss to accurately distinguish pleaded facts from pleaded

legal conclusions." Id.

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

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

as follows:

Creation of tax incremental districts and approval of project plans. In order to implement the provisions of this section, the following steps and plans are required: . . .

(gm) Adoption by the local legislative body of a resolution which: . . .

4. Contains findings that:

a. Not less than 50%, by area, of the real property within the district is at least one of the following: a blighted area . . . . § 66.1105(4)(gm)4.a. The term "blighted area" is defined, in relevant part, as follows:

An area, including a slum area, in which the structures, buildings or improvements, which by reason of dilapidation, deterioration, age or obsolescence,

(a) A short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief.

§ 802.02(1)(a).

16 No. 2015AP1858

inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which endanger life or property by fire and other causes, or any combination of these factors is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime, and is detrimental to the public health, safety, morals or welfare. § 66.1105(2)(ae)1.a.

b. The allegations in Plaintiffs' complaint ¶29 With regard to this claim, Plaintiffs' complaint

alleged the following facts:

29. The City and the JRB created TID #10 and amended and expanded TID #8 exclusively for the alleged purpose of addressing blighted areas. None of the three remaining statutory purposes for creating a TID were invoked in connection with or stated by the city or the JRB to be the basis for the creation of TID #10 or the amendment to TID #8.

51. On September 9, 2014, the City Common Council voted 8-3 to adopt a resolution approving Amendment No. 3 to TID #8.

58. [O]n October 14, 2014, the City Council voted 7-3 to adopt a Resolution approving the creation of TID #10.

72. The Resolution adopted by the City Council approving Amendment No. 3 to TID #8 contains a conclusory assertion that "not less than 50%, by area, of the real property within the amended boundary area of the District is a 'blighted area.'" The City Council did not articulate the factual basis for this conclusory statement and the record before the City Council contains no evidence to support its assertion.

83. The resolution adopted by the City Council approving TID #10 contains a conclusory assertion that "not less than 50%, by area, of the real property within the boundary area of the District is a 'blighted area' and is in need of 'rehabilitation or conservation' . . . ." The City Council did not

17 No. 2015AP1858

articulate the factual basis for this conclusory statement and the record before the City Council contains no evidence to support its assertion.[15]

c. These allegations are insufficient to state a claim upon which relief may be granted. ¶30 To determine whether the allegations are sufficient to

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

interpret the statute; specifically, we must determine what the

statute means when it requires that the local legislative body

adopt a "resolution which . . . [c]ontains findings." Wis. Stat. § 66.1105(4)(gm)4. The interpretation of a statute is a

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

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

N.W.2d 759.

¶31 Plaintiffs argue that the areas in question were not

actually blighted and that, "when the legislature established

15 These allegations span the first and second claims of Plaintiffs' complaint, which address TID 8 and TID 10, respectively. With regard to both claims, Plaintiffs' complaint also alleged several legal conclusions: (1) that, under Wis. Stat. § 66.1105(4)(gm)4.a., the City Common Council "was required to make a finding that '[n]ot less than 50%, by area, of the real property within the district is . . . a blighted area'"; (2) that "to properly make such a 'finding' the City Council is required to articulate the basis for its finding and the evidence of record that supports its action"; (3) that "the City Council could not reasonably have concluded that the area was blighted"; and (4) that, if a TID "does not actually serve to eliminate blight, it lacks a public purpose and therefore represents an unconstitutional expenditure of public funds." We disregard Plaintiffs' legal conclusions because "legal conclusions stated in the complaint are not accepted as true, and [] are insufficient to enable a complaint to withstand a motion to dismiss." Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693.

18 No. 2015AP1858

conditions for diverting tax money for the benefit of private

parties, it intended to permit such diversion only where those

conditions actually exist." In this regard, Plaintiffs argue

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

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

has ever held that declaratory judgment actions may not be used

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

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

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

determination of blight is a legislative act and that Plaintiffs

"failed to plead sufficient facts to satisfy the bedrock

separation-of-powers principle that challenges to state and

local legislative acts should not be resolved by the judicial

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

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

and the complaint "does not demonstrate the duly authorized City

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

Moreover, the complaint "does not demonstrate it is 'clear and palpable that there can be no benefit to the public'"; thus,

Plaintiffs have not stated a claim for violation of the public

16 The public purpose doctrine is the rule that "there can be no expenditure of public funds for a private purpose." State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 48, 205 N.W.2d 784 (1973) (quoting State ex rel. Singer v. Boos, 44 Wis. 2d 374, 381, 171 N.W.2d 307 (1969)). "No specific clause in the constitution establishes the public purpose doctrine. However, it is a well-established constitutional tenet." Id. at 47-48.

19 No. 2015AP1858

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

20 No. 2015AP1858

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

plain language of the statute does not require that the local

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

evidence in the record that supports its finding of blight.

¶34 This plain language interpretation is supported by the

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

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

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

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

closely-related statute, the legislature has demonstrated that

it is fully capable of specifying when findings of blight must

be explained by itemized evidence. See Wis. Stat.

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

property vis-à-vis eminent domain, including municipal

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

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

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

of acquiring blighted properties by requiring that "the condemnor shall make written findings and provide a copy of the

findings to the owner of the property. The findings shall

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

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

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

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

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

a requirement where it is not specified. See Scalia & Garner,

21 No. 2015AP1858

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

or reasonably implies.").

¶35 This interpretation is reinforced by the surrounding

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

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

requires only "the adoption of a resolution by the local

legislative body declaring the area to be a blighted area in

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

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

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

legislative body of a resolution declaring in substance that

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

clearance and urban renewal programs and projects."

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

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

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

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

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

17 In addition to chapters 32 and 66, "blight" is discussed in chapter 30, relating to the construction, repair, or maintenance of harbor improvements, see Wis. Stat. §§ 30.121(3w)(b), 30.30(3)(b); in chapter 60, relating to the miscellaneous powers of town housing authorities, see Wis. Stat. § 60.23(27); in chapter 67, relating to the procedure for issuing bonds to finance the elimination of blight, see Wis. Stat. § 67.05(5)(b); and in chapter 292, relating to exemptions for local government units from hazardous waste contamination penalties and requirements for properties acquired for the purpose of blight elimination, see Wis. Stat. §§ 292.11(9)(e)1m.(d), 292.23(2)(d), 292.26(2)(d).

22 No. 2015AP1858

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

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

specified rationale or itemization of supporting evidence.

¶36 Moreover, and perhaps more importantly, this

interpretation is reasonable because findings of blight are

legislative determinations that "do[] not raise justiciable

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

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

§ 66.1105, "blighted area" means:

An area, including a slum area, in which the structures, buildings or improvements, which by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which endanger life or property by fire and other causes, or any combination of these factors is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime, and is detrimental to the public health, safety, morals or welfare. § 66.1105(2)(ae)1.a. And this is substantially similar to the

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

"Blighted area" means any area, including a slum area, in which a majority of the structures are residential or in which there is a predominance of buildings or improvements, whether residential or nonresidential, and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which endanger life or property by fire and other causes, or any combination of these factors, is conducive to ill health, transmission of disease, infant mortality,

23 No. 2015AP1858

juvenile delinquency and crime, and is detrimental to the public health, safely, morals or welfare. Wis. Stat. § 66.1331(3)(a).

"Blighted area" means . . . [a]n area, including a slum area, in which there is a predominance of buildings or improvements, whether residential or nonresidential, which by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors id conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime, and is detrimental to the public health, safety, morals or welfare. Wis. Stat. § 66.1333(2m)(b)1.

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

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

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

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

examples of the traditional application of the police power to

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

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

traditionally been accorded deference by reviewing courts."

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

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

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

least limitable." Id.18 18 Legislative exercise of the police power is delegable, and its delegation to cities regarding matters of redevelopment has been upheld against constitutional attack on numerous occasions. See, e.g., David Jeffrey Co. v. City of Milwaukee, 267 Wis. 559, 590, 66 N.W.2d 362 (1954). (continued) 24 No. 2015AP1858

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

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

Id. The act of condemnation for the purpose of eliminating

blight is no exception: "to condemn unoffending

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

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

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

imperative necessity for [the police power] precludes any

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

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

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

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

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

project and the need for a particular tract to complete the

integrated plan rests in the discretion of the legislative

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

Here, by its enactment, the legislature has declared the policy and fixed the standards for the administration of the law. . . . It defines blighted area. It gives to cities the responsibility of determining the size of an area to be redeveloped, the costs involved and the details of the redevelopment plan, the method and mechanics of clearance, and the determination of future uses. Obviously, the legislature could not make specific provisions for all of these items, for the very reason that the size, extent, and character of the blighted areas, and the plans for redevelopment, differ in each city where the slum and blight condition exists.

Id. See also Hammermill, 58 Wis. 2d at 57-59. 19 In fact, Wis. Stat. § 66.1331 explicitly states: (continued) 25 No. 2015AP1858

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

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

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

Findings and declaration of necessity. It is found and declared that there have existed and continue to exist in citied within the state, substandard, insanitary, deteriorated, slum and blighted areas which constitute a serious and growing menace, injurious and inimical to the public health, safety, morals and welfare of the residents of the state. The existence of these areas contributes substantially and increasingly to the spread of disease and crime . . . constitutes an economic and social liability, substantially impairs or arrests the sound growth of cities, and retards the provision of housing accommodations. This menace is beyond remedy and control solely by regulatory process in the exercise of the police power and cannot be dealt with effectively by the ordinary operations of private enterprise without the aids provided in this section. The acquisition of property for the purpose of eliminating substandard, insanitary, deteriorated, slum or blighted conditions or preventing recurrence of these conditions in the area, the removal of structures and improvement of sites, the disposition of the property for redevelopment incidental to these activities, and any assistance which may be given by cities or any other public bodies, are public uses and purposes for which public money may be expended and the power of eminent domain exercised. The necessity in the public interest for the provision of this section is declared as a matter of legislative determination.

§ 66.1331(2); see also Wis. Stat. § 66.1333(2). The fact that these specific legislative findings are absent from Wis. Stat. § 66.1105 does not surprise us, or cause us concern, however, because the Tax Increment Statute simply enables municipalities to work with private parties on public improvements it would otherwise be authorized to undertake itself under §§ 66.1331 and 66.1333.

26 No. 2015AP1858

directly or through subordinate agencies to whom the exercise of

such prerogative may be entrusted.").

¶39 "Legislative determination[s] of public policy

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

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

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

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

review is limited and judicial interference restricted to cases

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

This is because de novo review of a legislative determination

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

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

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

cannot substitute its judgment for that of the zoning authority

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

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

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

the legislature to determine what regulations, restraints or prohibitions are reasonably required to protect the public

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

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

declaratory judgment because, as a legislative determination, it

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

20 We note the dissent's focus on our discussion of Joint School Dist. No. 1 v. State Appeal Bd., 56 Wis. 2d 790, 203 N.W.2d 1, and Buhler v. Racine Cty., 33 Wis. 2d 137, 146 N.W.2d 403 (1966)——which we cite for the broad proposition that legislative findings, in general, do not raise justiciable (continued) 27 No. 2015AP1858

¶40 Thus, Plaintiffs have failed to state claims upon

which relief may be granted because a court cannot issue a

declaration regarding the wisdom of a legislative determination.

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

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

determine the wisdom or rationale underpinning a particular

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

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

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

Wis. 2d at 146-47.21

issues of fact or law——and its misapprehension of our discussion of Berman v. Parker, 348 U.S. 26 (1954), David Jeffrey Co., 267 Wis. 599, and Nowell v. City of Wausau, 2013 WI 88, ¶46, 351 Wis. 2d 1, 838 N.W.2d 852——which we rely on for the proposition that a finding of blight under Wis. Stat. § 66.1105(4)(gm)4.a. is a legislative one. From this, we are compelled to conclude that the dissent does not seem to understand the significance of the difference between legislative facts/findings and judicial facts/findings. See, e.g., Ann Woolhandler, Rethinking the Judicial Reception of Legislative Facts, 41 Vand. L. Rev. 111, 113-16 (1988). 21 Because we conclude that the findings of blight are legislative determinations, we need not address Plaintiffs' coordinate claims regarding the public purpose doctrine, which assume that these determinations are reducible to judicial fact finding ("If a [TID] ostensibly created to address issues of blight does not actually serve to eliminate blight, it lacks a public purpose and therefore represents an unconstitutional expenditure of public funds.").

28 No. 2015AP1858

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

29 No. 2015AP1858

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."

30 No. 2015AP1858

87. . . . The JRB did not "review the public record, planning documents and the resolution passed by" the City Council [for creation of TID #10].[22]

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

c. These allegations are insufficient to state a claim upon which relief may be granted. ¶43 To determine whether these allegations state a claim

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

specifically, we must determine what the statute means when it

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

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

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

Wis. 2d 358, ¶25.

¶44 Plaintiffs argue that redevelopment in the areas in

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

the legislature established conditions for diverting tax money

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

diversion only where those conditions actually exist." In this

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

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

has ever held that declaratory judgment actions may not be used

22 These allegations span the first and second claims of Plaintiffs' complaint, which address TID 8 and TID 10, respectively. With regard to both claims, Plaintiffs' complaint also alleged that the JRB could not have "reasonably concluded" "that development would not occur . . . without tax incremental financing." This is a legal conclusion which we disregard because "legal conclusions stated in the complaint are not accepted as true, and [] are insufficient to enable a complaint to withstand a motion to dismiss." Data Key Partners, 356 Wis. 2d 665, ¶19.

31 No. 2015AP1858

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

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

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

assertions are legislative acts and that Plaintiffs "failed to

plead sufficient facts to satisfy the bedrock separation-of-

powers principle that challenges to state and local legislative

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

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

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

demonstrate the duly authorized . . . Joint Review Board

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

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

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

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

We conclude that Plaintiffs' complaint was properly dismissed as

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

for" assertions are legislative determinations that do not

present justiciable issues of fact or law. ¶45 "[S]tatutory interpretation begins with the language

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

statute states, in relevant part, as follows:

[N]o tax incremental district may be created and no project plan may be amended unless the board approves the resolution adopted under sub. (4)(gm) . . . . The board may not approve the resolution under this subdivision unless the board's approval contains a positive assertion that, in its judgment, the development described in the documents the board has reviewed under subd. 1. would not occur without the creation of a tax incremental district.

32 No. 2015AP1858

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

construed according to common and approved usage; but technical

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

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

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

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

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

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

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

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

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

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

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

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

that the JRB itemize the evidence in the record that supports

its "but for" assertion.

¶47 This plain language interpretation is supported by our

analysis above because, as with the City Common Council's finding of blight, "[t]he Joint Review Board's task was to look

at the TIF District as a whole and determine whether development

would occur without the use of tax incremental financing."

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

23 "Declaration" is defined: "A formal statement, proclamation, or announcement . . . ." Declaration Black's Law Dictionary 493 (10th ed. 2014). 24 "Allegation" is defined: "A declaration that something is true . . . ." Allegation id. at 90.

33 No. 2015AP1858

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

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

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

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

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

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

prevent the recurrence of blight. This determination is

holistic and wholly within the discretion of the legislature.

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

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

declaratory judgment because, as a legislative determination, it

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

¶48 Thus, Plaintiffs have failed to state claims upon

which relief may be granted because a court cannot issue a

declaration regarding the wisdom of a legislative determination.

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

determine the wisdom or rationale [of] a particular legislative

pronouncement."); Gottlieb, 33 Wis. 2d at 415 ("We are not concerned with the wisdom of what the legislature has done.");

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

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

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

part, as follows:

"Project costs" mean any expenditures made or estimated to be made or monetary obligations incurred or estimated to be incurred by the city which are listed in a project plan as costs of public works or

34 No. 2015AP1858

improvements within a tax incremental district . . . . "Project costs" include:

a. Capital costs including, but not limited to, the actual costs of the construction of public works or improvements, new buildings, structures, and fixtures; the demolition, alteration, remodeling, repair or reconstruction of existing buildings, structures and fixtures other than the demolition of listed properties as defined in s. 44.31(4) . . . . § 66.1105(2)(f)1.a. Section 44.31(4) defines "listed property"

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

historic places in Wisconsin or the state register of historic places, or both." Wis. Stat. § 44.31(4).

b. The allegations in Plaintiffs' complaint ¶50 With regard to this claim, Plaintiffs' complaint

alleges the following facts:

42. . . . The buildings that have been purchased and subsequently demolished by the developer include the Kline Department Store, which was listed on the National Register of Historic Places. Also demolished were several other buildings within the Confluence Commercial District, also on the National Register.

43. A substantial part of the development costs actually incurred by the developer thus includes the costs of demolition as well as the purchase price of the Kline Department Store building and other buildings that are listed properties pursuant to Wis. Stat. § [44.31(4)].

46. The Project Plan for TID #10 indicates that $10,400,000 of the project costs will come in the form of "contributions"——i.e. cash payments from the City—— to the Confluence developer. These contributions are to be paid in the form of cash grants to the partnership to compensate it for development costs. The funds . . . depend upon its achieving specified milestones in the project, but they are paid to the developer in a lump sum once those milestones have been reached. Neither the Project Plan for TID #10

35 No. 2015AP1858

nor the agreements with the developer clearly provide that the lump sum grants may not be used by the Confluence developer to reimburse itself for some or all of the costs of purchasing then demolishing listed properties that it had already incurred.

94. . . . Given the lump sum character of the developer payments, there is in fact no way to assure that the payments have been used as reimbursement for certain already incurred costs, and not used as reimbursement for others.[25]

c. These allegations are insufficient to state a claim upon which relief may be granted. ¶51 To determine whether these allegations state a claim

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

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

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

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

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

the acquisition and destruction of historic properties,"

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

otherwise would mean that "reimbursement for the destruction of

historic buildings can be challenged only when TID funds are expressly earmarked for demolition." The City argues that

25 With regard to this claim, Plaintiffs' complaint also alleged the following legal conclusions: (1) that, under Wis. Stat. § 66.1105(2)(f)1.a., "tax incremental funds cannot be used to compensate a developer for the costs associated with the destruction of listed properties"; and (2) that "the TID #10 project plan . . . unlawfully reimburses the developer for such costs." We disregard Plaintiffs' legal conclusions because "legal conclusions stated in the complaint are not accepted as true, and [] are insufficient to enable a complaint to withstand a motion to dismiss." Data Key Partners, 356 Wis. 2d 665, ¶19.

36 No. 2015AP1858

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

buildings in question have already been demolished, and because

the complaint "fails to plead facts demonstrating any connection

between TIF funds and historic building acquisition or

demolition." We conclude that Plaintiffs' third claim was

properly dismissed because it does not allege facts which

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

used to reimburse the developer's costs associated with

demolishing historic buildings.

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

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

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

"Project costs" include . . . [c]apital costs including . . . the demolition, alteration, remodeling, repair or reconstruction of existing buildings, structures and fixtures other than the demolition of [property which is listed on the national register of historic places in Wisconsin or the state register of historic places, or both]. § 66.1105(2)(f)1.a. The plain language of this provision

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

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

the demolition of historic buildings.

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

Although Plaintiffs alleged that the $10.4 million cash grant

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

establish that the developer in fact used the money from the

cash grant to pay for the demolition of Kline Department Store or other historic buildings. Nor did they allege facts which

37 No. 2015AP1858

demonstrate that the developer was likely to do so. Plaintiffs

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

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

of historic buildings.

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

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

they establish only the possibility that funds could be used to

pay for the demolition of historic buildings. This is not

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

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

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

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

claim, but without some further factual enhancement it stops

short of the line between possibility and plausibility of

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

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

4. Cash grants under Article VIII, Section 1 a. The substantive law ¶56 Article VIII, Section 1 of the Wisconsin Constitution

states, in relevant part, as follows:

The rule of taxation shall be uniform but the legislature may empower cities, villages or towns to collect and return taxes on real estate located therein by optional methods.

Wis. Const. art. VIII, § 1.

38 No. 2015AP1858

b. The allegations in Plaintiffs' complaint

¶57 With regard to this claim, Plaintiffs' complaint

alleges the following facts:

42. The developer purchased the properties on the Confluence Project site in three separate transactions in May, 2012, April, 2014, and June, 2014 . . . .

106. [T]he project plans provide for millions of dollars of incremental TID taxes to be paid directly to the owner of the property within the TID, with no meaningful restrictions except that the developer use them to reimburse itself for "project costs."[26]

c. These allegations are insufficient to state a claim upon which relief may be granted. ¶58 To determine whether these allegations state a claim

upon which relief may be granted we must interpret the statute

and Article VIII, Section 1 of the Wisconsin Constitution

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

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

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

constitutional provision is also a question of law that we

26 With regard to this claim, Plaintiffs' complaint also alleged that "[t]his arrangement functions as a tax rebate or tax credit, and . . . constitutes a violation of the Uniformity Clause . . . [b]ecause the developer here is being taxed at a more favorable rate than an owner of identically-assessed property elsewhere." This is a legal conclusion, which we disregard because "legal conclusions stated in the complaint are not accepted as true, and [] are insufficient to enable a complaint to withstand a motion to dismiss." Data Key Partners, 356 Wis. 2d 665, ¶19.

39 No. 2015AP1858

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

¶13, 358 Wis. 2d 1, 851 N.W.2d 337.

¶59 Plaintiffs argue that the TIDs violate the Uniformity

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

everyone else, but is getting paid a reimbursement that lowers

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

unconstitutional tax rebate." Plaintiffs argue that this is an

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

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

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

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

not plead sufficient facts to satisfy the burden necessary to

challenge the constitutional validity of a state statute"

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

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

resolved in favor of constitutionality." It also argues that

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

have not successfully distinguished Sigma Tau, where this court upheld the Tax Increment Law against such a challenge. We

conclude that Plaintiffs' fourth claim was properly dismissed

because it does not allege facts which plausibly establish that

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

of owner-developers.

¶60 As a preliminary matter, we conclude that Plaintiffs

are attempting to raise an as-applied challenge to the

constitutionality of cash grant disbursements pursuant to Wis. Stat. § 66.1105(2)(f)2.d. Our prior cases distinguish between 40 No. 2015AP1858

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

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

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

statute is unconstitutional on the facts of a particular case or

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

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

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

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

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

distinction is significant because, although the presumption

that a statute is constitutional applies in both facial and as-

applied challenges, in an as-applied challenge "there is no

presumption the statute has been applied in a constitutional

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

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

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

owner-developer violate the Uniformity Clause because they

effectively reimburse the owner-developer for property taxes paid on the project property. These allegations have some

characteristics of both a facial challenge and an as-applied

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

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

has the character of a facial challenge because, if Plaintiffs

are successful, the statute would be invalidated beyond these

particular TIDs; that is, all cash grants to all owner-

developers would be unconstitutional. On the other hand, it is more of an as-applied challenge because, if Plaintiffs are 41 No. 2015AP1858

successful, this provision of the statute would not always

operate unconstitutionally; that is, Plaintiffs' allegations do

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

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

within one or the other of the traditional, categorical

definitions for constitutional challenges.

¶62 Some have reasoned that challenges like this exist

because there is no "sharp, categorical distinction between

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

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

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

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

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

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

statutes are facially invalid properly occur only as logical

outgrowths of rulings on whether statutes may be applied to

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

Here, we conclude that Plaintiffs' claim is an as-applied challenge because, even if Wis. Stat. § 66.1105(2)(f)2.d. is

invalid as Plaintiffs claim, the constitutional infirmity would

not invalidate all applications of this provision, nor would it

render the remainder of the statute invalid.

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

against a constitutional challenge. See Sigma Tau, 93

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

Law is constitutional" on its face because "[a]ll tax payers within the territorial limits of each . . . district [] continue 42 No. 2015AP1858

to be taxed at a uniform rate based upon valuations uniformly

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

Increment Law did not incorporate the particular provision at

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

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

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

27 In doing so, we distinguished two of our prior cases. See State ex rel. La Follette v. Torphy, 85 Wis. 2d 94, 108, 270 N.W.2d 187 (1978) (concluding that the Improvements Tax Relief Law violated the Uniformity Clause because its rebate credits for certain property owners "lead[] to the indisputable conclusion that taxpayers owning equally valuable property will ultimately be paying disproportionate amounts of real estate taxes."); Gottlieb v. City of Milwaukee, 33 Wis. 2d 408, 428-29, 147 N.W.2d 633 (1967) (concluding that the Urban Redevelopment Law violated the Uniformity Clause because its suspension of property taxes for redevelopment corporations constituted a partial exemption). We do not perceive these cases to be directly applicable to the issue here presented and therefore do not analyze them further.

We note, however, that, as we pointed out in Torphy, "[t]he initial question is whether the [law] is a tax statute subject to the uniformity clause." 85 Wis. 2d at 104; see also State ex rel. Harvey v. Morgan, 30 Wis. 2d 1, 10, 139 N.W.2d 585 (1966) ("The [question of whether chapter 580 violated the uniformity clause] is relevant only if Ch. 580 is in fact a tax law."). Neither party has presented arguments regarding whether the Tax Increment Law is a tax law and, for the purposes of our analysis, we assume without deciding that it is. 28 See 2003 Wis. Act 126, § 3. 29 In this regard, we note that the legislature made numerous amendments to Wis. Stat. § 66.1105 since the 2013-14 version considered herein. See 2015 Wis. Act 60, §§ 32-36; 2015 Wis. Act 75; 2015 Wis. Act 96; 2015 Wis. Act 254, §§ 1-7; 2015 Wis. Act 255; 2015 Wis. Act 256, §§ 3-18; 2015 Wis. Act 257, §§ 7-12; 2017 Wis. Act 58, §§ 19-21.

43 No. 2015AP1858

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

undertake a de novo analysis.30

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

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

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

Notwithstanding subd. 1., none of the following may be included as project costs for any tax incremental district for which a project plan is approved . . .

d. Cash grants made by the city to owners, lessees, or developers of land that is located within the tax incremental district unless the grant recipient has signed a development agreement with the city, a copy of which shall be sent to the appropriate joint review board or, if that joint review board has been dissolved, retained by the city in the official records for that tax incremental district. Wis. Stat. § 66.1105(2)(f)2.d. Subdivision 1. lists the costs

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

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

costs, professional service costs, imputed administrative costs,

relocation costs, organizational costs, project plan implementation costs, infrastructure construction or alteration

costs, and lead contamination costs. Wis. Stat.

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

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

affirmatively permit the use of cash grants to pay property

30 Our analysis here, however, does not in any way abrogate or overrule Sigma Tau Gamma Fraternity House Corp. v. City of Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85 (1980).

44 No. 2015AP1858

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

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

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

denominates a nonexclusive list. See State v. Popenhagen,

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

plain language of the statute also does not affirmatively

prohibit use of cash grants allocated for projects costs to pay

property taxes.

¶65 The fact that a statute does not affirmatively

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

[a]ll legislative acts are presumed constitutional and we must indulge every presumption to sustain the law. Any doubt that exists regarding the constitutionality of the statute must be resolved in favor of its constitutionality. Consequently, it is insufficient for a party to demonstrate that the statute's constitutionality is doubtful or that the statute is probably unconstitutional. Instead, the presumption can be overcome only if the party establishes the statute's unconstitutionality beyond a reasonable doubt. Madison Teachers, Inc., 358 Wis. 2d 1, ¶13 (citations omitted). Thus, to establish that a statute violates the Uniformity

Clause, a plaintiff must demonstrate beyond a reasonable doubt

that the statute contravenes the rule that "taxation shall be

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

Plaintiffs alleged. Plaintiffs did not allege facts which

establish that cash grants are intended to reimburse owner-

developers for property taxes. Nor did they allege facts which

establish that owner-developers in fact use cash grants to pay property taxes, or that owner-developers are likely to do so.

45 No. 2015AP1858

Plaintiffs alleged only that a requirement that owner-developers

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

restrictions."

¶66 Similarly, although Plaintiffs alleged that "millions

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

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

which establish that the developer here in fact used that money

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

demonstrate that the developer here was likely to do so.

Plaintiffs alleged only that the project plan imposes "no

meaningful restrictions except that the developer use [the

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

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

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

they establish only that the statute does not explicitly exclude

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

words, that the statute does not preclude the possibility that

developers could use cash grants to pay property taxes. This is not sufficient to state a constitutional challenge under the

Uniformity Clause because such a possibility does not even

amount to an allegation that the statute is "probably

unconstitutional," let alone unconstitutional beyond a

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

Moreover, Plaintiffs' allegations fail to state a claim upon

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

establish only the possibility that the developer here could use the funds to pay property taxes. This is not "enough heft to 46 No. 2015AP1858

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

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

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

close to stating a claim, but without some further factual

enhancement it stops short of the line between possibility and

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

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

557).

¶68 In sum, Plaintiffs' complaint was properly dismissed

as to declaratory judgment because it fails to state claims upon

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

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

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

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

count fails because it does not allege facts which plausibly

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

reimburse the developer's costs associated with demolishing

historic buildings; and the fourth count fails because it does not allege facts which plausibly establish that cash grants are

intended or used to pay developers' property taxes.

C. Certiorari Review ¶69 We conclude, however, that Plaintiffs' first and

second claims are reviewable under certiorari. Plaintiffs argue

that a "preference for certiorari review is an abdication of

judicial responsibility," and that it is insufficient because it "would entail no discovery or other opportunity to assess

47 No. 2015AP1858

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

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

31 Plaintiffs cite three cases in support of their argument that these are determinations susceptible to judicial fact finding, none of which actually support their argument. In Fenton v. Ryan, we concluded that whether a proposed village possesses the requisite attributes is a question of judicial character because, if the attributes are not present, "the uniformity of town and county government guaranteed by the Constitution is invaded," 140 Wis. 353, 359, 122 N.W.2d 756 (1909); such questions of constitutionality are judicial questions. See, e.g., Gottlieb, 33 Wis. 2d at 415-16 ("We are not concerned with the wisdom of what the legislature has done. We are judicially concerned only when the statute clearly contravenes some constitutional provision."). In Town of Mt. Pleasant v. City of Racine, we held that a city's determination of its own boundaries was a legislative determination, and the judicial question was limited to whether the boundary lines were "reasonable in the sense that they were not fixed arbitrarily, capriciously, or in the abuse of discretion." 24 Wis. 2d 41, 46, 127 N.W.2d 757 (1964) (citing Town of Fond du Lac v. City of Fond du Lac, 22 Wis. 2d 533, 126 N.W.2d 201 (1964)). And, in Bechthold v. City of Wauwatosa, the petitioners challenged the city's adherence to the procedure for advertising bids for street repair, and the judicial questions were whether strict or substantial compliance was required, and whether the undisputed facts demonstrated that the city had complied, 228 Wis. 544, 551-58, 277 N.W. 657 (1938); Plaintiffs here do not dispute that the City adhered to the correct procedure.

Plaintiffs also claim that "in at least three published cases, TIF actions were brought as declaratory actions." Two of these cases are distinguishable on the basis that they sought a declaration of constitutionality, which, as noted above, is a proper question for the court. See Kirley, 172 Wis. 2d 191; Gottlieb, 33 Wis. 2d 408. The third case never reached the declaratory question, and thus provides no support for Plaintiffs' argument. See Town of Baraboo v. Vill. of West Baraboo, 2005 WI App 96, ¶¶31-37, 283 Wis. 2d 479, 699 N.W.2d 610. Plaintiffs' reliance on Kaiser v. City of Mauston is similarly misplaced because that case addressed the validity of an ordinance under a statute, which is not the issue here. 99 Wis. 2d 345, 354-55, 299 N.W.2d 259 (1980).

48 No. 2015AP1858

certiorari is the applicable standard of review because it is a

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

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

statutory appeal process has been created; is the proper

standard to review local legislative functions; and is

consistent with the longstanding policy that "declaratory relief

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

alternative remedy." We conclude that certiorari review is

appropriate and adequate to address Plaintiffs' claims regarding

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

because certiorari review is the mechanism by which a court

should test the validity of a municipality's legislative

determinations.

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

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

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

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

N.W.2d 306 (1971). No statutory appeal process has been created to review the formation of a TID; therefore, certiorari review

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

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

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

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

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

validity of a decision rendered by a municipality.").

49 No. 2015AP1858

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

of review, common law certiorari applies. Ottman, 332

Wis. 2d 3, ¶35.

When conducting common law certiorari review, a court reviews the record compiled by the municipality and does not take any additional evidence on the merits of the decision. The courts review is limited to: (1) whether the municipality kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. . . Id. (citation omitted). Additionally, "on certiorari review,

there is a presumption of correctness and validity to a

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

commensurate with our established deference to legislative

determinations.32 Therefore, certiorari review of the decisions

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

remedy.

¶72 The record before us, however, does not contain a "record compiled by the municipality" because the litigation

32 See, e.g., Town of Baraboo, 283 Wis. 2d 479, ¶18 (quoting Town of Campbell v. City of La Crosse, 2003 WI App 247, ¶19, 268 Wis. 2d 253, 673 N.W.2d 696) ("The doctrine known as the 'rule of reason' is applied by the courts to ascertain whether the power delegated to the cities and villages has been abused in a given case."); see also Fond du Lac, 22 Wis. 2d 533 (applying the rule of reason to annexation); Joint Sch. Dist. No. 1, 56 Wis. 2d at 797 ("The trial court properly confined its review to whether the State Appeal Board had jurisdiction and whether the order evinced arbitrary or capricious action.").

50 No. 2015AP1858

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

therefore remand the cause to the circuit court for certiorari

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

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

whether dismissal of Plaintiffs' declaratory judgment claims was

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

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

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

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

determinations that do not present justiciable issues of fact or

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

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

was used to reimburse the developer's costs associated with

demolishing historic buildings; and the fourth count fails

because it does not allege facts which plausibly establish that

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

property taxes. ¶74 Second, we consider whether certiorari review is

appropriate. We conclude that it is, because certiorari review

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

a legislative determination. The record before us, however,

does not contain a municipal record sufficient to enable our

review. Accordingly, we remand to the circuit court for

certiorari review of Plaintiffs first and second claims.

51 No. 2015AP1858

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

on the other grounds.

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

affirmed and the cause is remanded for further proceedings

consistent with this opinion.

52 No. 2015AP1858.rgb&dk

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

J. (dissenting). The court held that Plaintiffs' richly-

detailed and amply supported 25-page Complaint does not

sufficiently state a claim. It also said Plaintiffs may not

request declaratory relief on their claims that the City of Eau

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

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

Plaintiffs' assertion that developers who were reimbursed out of

TID funds for demolishing historic buildings did not plausibly

allege that TID funds were used to pay for demolishing historic

buildings.

¶78 The court's decision forecloses taxpayers from ever

seeking declaratory judgment when municipalities violate the TIF

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

complex substantive issues, incorrectly applied the law, and

deprived Plaintiffs of their rights. We write separately to

explain why: (1) Plaintiffs have standing to pursue their Complaint; (2) declaratory judgment is an appropriate avenue for

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

to support each claim, although not every claim is legally

supportable. We specifically address why the factual existence

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

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

general, and these cash grants specifically, do not implicate

the Uniformity Clause of the Wisconsin Constitution. We respectfully dissent.

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I. BACKGROUND1

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

conjunction with a development known as the Confluence Project.

Our statutes authorize municipalities to create TIDs as a

mechanism to fund any of four types of projects: blight

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

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

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

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

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

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

an area that endangers life or property and is detrimental to

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

area that consists primarily of an abandoned highway corridor or

demolished structures that substantially impair community

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

¶80 The Confluence Project engendered considerable debate,

which focused primarily on whether, as a factual matter, the TIDs actually comprised blighted areas. At public hearings

addressing the TIDs, those opposed to the project presented

evidence that the areas were not blighted, that the areas

contained historic buildings, and that redevelopment of some of

1 This section primarily recounts facts and reasonable inferences from Plaintiffs' Complaint. In reviewing a motion to dismiss, we accept as true the alleged facts and all reasonable inferences therefrom. See Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693. We draw all legal conclusions independently. See Walberg v. St. Francis Home, Inc., 2005 WI 64, ¶6, 281 Wis. 2d 99, 697 N.W.2d 36.

2 No. 2015AP1858.rgb&dk

the buildings was already underway and would occur without the

TIDs and without the Confluence Project.

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

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

resolution to that effect. Nothing in the minutes from that

meeting indicates the City Council had any evidence that the

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

not contain any specific facts documenting or explaining why the

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

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

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

Council's resolution expanding TID #8.

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

its creation presented evidence that the City's own records

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

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

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

was a blighted area in "need of rehabilitation or conservation," Plaintiffs say there is no evidence to support this finding. On

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

resolution, claiming the development would not occur without the

creation of TID #10.

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

City claiming the actions related to the TIDs were unlawful,

2 Wisconsin Stat. § 66.1105(4m) describes the role and responsibility of the Joint Review Board. The majority opinion sets forth the full text of § 66.1105(4m) in ¶41.

3 No. 2015AP1858.rgb&dk

violated the TIF statutes, and injured the taxpayers by

obligating them to pay higher taxes. The Notice advised that

disallowance of the claim would cause the taxpayers to file a

declaratory judgment action. The City did not respond.

Instead, the City Council adopted a resolution appropriating

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

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

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

TID #10.

¶84 Subsequently, Plaintiffs filed a Complaint seeking

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

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

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

the City unlawfully used TID funds to pay for demolition of

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

Uniformity Clause. The Complaint alleged an alternative fifth

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

Council and the Joint Review Board." ¶85 The City denied Plaintiffs' allegations and moved to

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

Plaintiffs did not have standing to bring a declaratory judgment

or a certiorari action; (2) the TID resolutions are non-

justiciable legislative enactments; (3) the Complaint fails to

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

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

statutes constitutional in Sigma Tau Gamma Fraternity House Corp. v. City of Menomonie, 93 Wis. 2d 392, 288 N.W.2d 85

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(1980). The circuit court granted the City's motion, holding

Plaintiffs did not have standing, declaratory judgment was

inappropriate because the case presented a political question,

and the TIF statutes are constitutional.

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

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

have standing to seek a declaratory judgment and that

declaratory judgment is an inappropriate avenue to challenge a

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

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

It held Plaintiffs did not sufficiently allege a violation of

the TIF statutes, their claim regarding illegal payment for

demolition of historic buildings was speculative, and they did

not sufficiently allege a constitutional violation. Id. It

decided, however, that Plaintiffs had the right to certiorari

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

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

for review. II. ANALYSIS

A. Standing

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

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

standing at all, and the court of appeals decided that

Plaintiffs did not have standing to seek declaratory judgment.

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

declaratory judgment claims needs some attention. We should provide guidance on this issue so it does not readily recur. We

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write to explain why Plaintiffs had standing to assert their

claims.

1. Standard of Review and Applicable Law

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

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

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

standing when the complaint alleges the taxpayer has or will

sustain some pecuniary loss as a result of an illegal

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

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

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

Id. at 22. Standing exists even when the pecuniary loss alleged

is "infinitesimal." Id. The merits of the claim have no

bearing on whether standing exists. Kaiser v. City of Mauston,

99 Wis. 2d 345, 360-61, 299 N.W.2d 259 (Ct. App. 1980),

overruled on other grounds by DNR v. City of Waukesha, 184

Wis. 2d 178, 191, 515 N.W.2d 888 (1994) (notice of claim

statute) (subsequent case limiting DNR's notice of claim holding omitted); Hart v. Ament, 176 Wis. 2d 694, 699, 500 N.W.2d 312

(1993).

2. Application

¶89 We conclude Plaintiffs have standing to pursue a claim

that the City of Eau Claire did not follow the requisite

procedures outlined in the TIF statutes when the City decided to

create TID #10 and expand TID #8. Plaintiffs' claim, if true,

necessarily means the taxpayers will suffer pecuniary harm because the City will expend funds without any legal basis.

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Plaintiffs' Complaint alleges that: (1) they are taxpayers (two

of Plaintiffs actually own property within a TID district and

assert it is not blighted); (2) the City "failed to satisfy the

statutory requirements" and did not make required statutory

findings before proceeding with the TIDs; (3) the areas within

the TIDs are in fact not blighted areas; and (4) Plaintiffs were

harmed as a result of the City's "unlawful actions as their tax

dollars will be spent in an unlawful manner, tax revenues from

the incremental growth in TID #8 will be unavailable for general

purposes such as schools, roads, and public safety, and the

incremental tax revenues from TID #8 will be unavailable for

other taxing jurisdictions." The Complaint makes the same

assertions about TID #10.

¶90 These allegations easily confer taxpayer standing.

"An allegation that the city has spent, or proposes to spend,

public funds illegally is . . . sufficient to confer standing on

a taxpayer." Kaiser, 99 Wis. 2d at 360. When we inquire into

standing, we do not evaluate a plaintiff's likelihood of success on the merits. That comes later. When the court of appeals

decided that the City's expenditure of tax funds was legal, it

improperly explored the merits of Plaintiffs' claims. See

Voters with Facts, 376 Wis. 2d 479, ¶¶18-59. The circuit court

also erred in its standing analysis by passing on the question,

believing it to be political rather than legal. This is error

both procedurally and conceptually because it requires a defense

of the merits before an opportunity to develop factual support.

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¶91 A taxpayer's complaint alleging past or future

pecuniary loss based upon an unlawful expenditure of tax

revenues has long been deemed sufficient to establish standing.

Over one hundred years ago, this court recognized that "[e]very

taxpayer, great or small, has an interest in the disposition of

county funds. Courts will not stop to balance differences or

enter into computations to ascertain just how much the taxpayer

will be likely to suffer . . . ." Mueller v. Eau Claire Cty.,

108 Wis. 304, 311, 84 N.W. 430 (1900). Rather, when a taxpayer

shows "'an active or threatened invasion or destruction of a

distinct right belonging to himself or to the body of citizens

for whom he sues . . . the taxpayer's right to sue is

recognized.'" Id. at 312 (citation omitted). See also Hart,

176 Wis. 2d at 698-99 (taxpayer challenge to transfer of a

county museum to a private organization); State ex rel. Wis.

Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988)

(taxpayer challenge to "Frankenstein" veto); City of Appleton v.

Town of Menasha, 142 Wis. 2d 870, 419 N.W.2d 249 (1988) (taxpayer challenge to statutory scheme for apportionment after

annexation of a town); Tooley v. O'Connell, 77 Wis. 2d 422, 439,

253 N.W.2d 335 (1977) (taxpayer challenge to statutory plan for

financing city schools from property taxes); Buse v. Smith, 74

Wis. 2d 550, 563, 247 N.W.2d 141 (1976) (taxpayer challenge to

negative-aid school financing); State ex rel Sundby v. Adamany,

71 Wis. 2d 118, 124, 237 N.W.2d 910 (1976) (taxpayer challenge

to constitutionality of veto); Thompson v. Kenosha Cty., 64 Wis. 2d 673, 679-81, 221 N.W.2d 845 (1974) (taxpayer challenge

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to statutory creation of countywide assessor system); Vill. of

W. Milwaukee v. Area Bd. of Vocational, Tech. and Adult Ed., 51

Wis. 2d 356, 365-66, 187 N.W.2d 387 (1971) (taxpayer challenge

to statute allowing for area vocational education districts);

Columbia Cty. v. Bd. of Trs. of Wis. Ret. Fund, 17 Wis. 2d 310,

116 N.W.2d 142 (1962) (taxpayer challenge to statute mandating

all counties join the welfare fund); Fed. Paving Corp. v.

Prudisch, 235 Wis. 527, 293 N.W. 156 (1940) (taxpayer challenge

to statute allowing certain cities to pay funds under contracts

later found void).

¶92 Despite longstanding and clear-cut law to the

contrary, the circuit court and the court of appeals ruled

Plaintiffs lack standing. Instead of correcting the error, this

court dodged it, which means it will just come back to us again.

The law of standing requires nothing more than Plaintiffs' claim

that they are harmed by the unlawful expenditure of their tax

dollars.

B. Dismissal of Counts One and Two ¶93 The first two counts of the Complaint challenge the

City's authority to amend TID #8 and create TID #10. They seek

a declaration that the City may not exercise TID authority

unless (as relevant here) the proposed districts encompass the

statutorily-prescribed minimum concentration of blighted

properties. This court dismissed these counts for failure to

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state a claim because, it said, blight is a non-justiciable

legislative determination.3

¶94 This conclusion is not possible without indulging two

foundational errors. First, the court never faced, and so did

not answer, the central question Plaintiffs raised: Whether the

statutorily-mandated preconditions to the City's exercise of TID

authority were satisfied. And second, the court made a category

error when, for purposes of justiciability, it assumed the

existence of blight is the same thing as a municipality's

response to it.

1. Controlling Legal Principles

¶95 Declaratory judgments, such as the one Plaintiffs

requested, are broadly available under our Uniform Declaratory

Judgment Act, which says: "Courts of record within their

respective jurisdictions shall have power to declare rights,

status, and other legal relations whether or not further relief

is or could be claimed. No action or proceeding shall be open

to objection on the ground that a declaratory judgment or decree is prayed for." Wis. Stat. § 806.04(1). Such declarations are

available so long as there is a justiciable controversy.

Milwaukee Dist. Council 48 v. Milwaukee Cty., 2001 WI 65, ¶37,

3 Majority op., ¶4 ("First, we consider whether dismissal of Plaintiffs' declaratory judgment claims was proper. We conclude that it was, because Plaintiffs have failed to state claims upon which relief can be granted: the first and second counts fail because the City Common Council's findings of blight . . . are legislative determinations that do not present justiciable issues of fact or law . . . .").

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244 Wis. 2d 333, 627 N.W.2d 866 ("A declaratory judgment is

fitting when a controversy is justiciable.").

¶96 We have previously said that an issue is justiciable,

for purposes of declaratory judgment actions, when there is:

(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.

(2) The controversy must be between persons whose interests are adverse.

(3) The party seeking declaratory relief must have a legal interest in the controversy——that is to say, a legally protectible interest.

(4) The issue involved in the controversy must be ripe for judicial determination. Loy v. Bunderson, 107 Wis. 2d 400, 409, 320 N.W.2d 175

(1982) (internal quotation marks and citation omitted).

Justiciability, however, does not depend on the ultimate merits

of the claim. Tooley v. O'Connell, 77 Wis. 2d 422, 434–35, 253

N.W.2d 335 (1977) ("The merits of plaintiffs' cause of action do

not determine its justiciability.").

¶97 As the court recognized, the substantive law informing Plaintiffs' claims controls what they must plead. See majority

op., ¶27 ("[T]he sufficiency of a complaint depends on [the]

substantive law that underlies the claim made because it is the

substantive law that drives what facts must be pled." (quoting

Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶31, 356

Wis. 2d 665, 849 N.W.2d 693)). It also supplies the raw

material for the justiciability analysis. ¶98 The contest with respect to Counts One and Two is

over the City's authority to expand TID #8 and create TID #10. 11 No. 2015AP1858.rgb&dk

The Tax Increment Law (Wis. Stat. § 66.1105) is the source of

that authority: "In addition to any other powers conferred by

law, a city may exercise any powers necessary and convenient to

carry out the purposes of this section, including the power to:

(a) Create tax incremental districts and define the boundaries

of the districts . . . ." § 66.1105(3). But this is not an

absolute grant of power. That is to say, the legislature did

not authorize municipalities to create TIDs whenever and

wherever they wish. To the contrary, a municipality may not

create a TID unless all of the statutorily-defined prerequisites

are satisfied. The legislature introduced the operative portion

of the Tax Increment Law with this command: "In order to

implement the provisions of this section, the following steps

and plans are required . . . ." § 66.1105(4).

¶99 One of the requirements a municipality must satisfy

before it may create a TID is adoption of a resolution finding

that:

[n]ot less than 50 percent, by area, of the real property within the district is at least one of the following: a blighted area; in need of rehabilitation or conservation work, as defined in s. 66.1337 (2m) (a); suitable for industrial sites within the meaning of s. 66.1101 and has been zoned for industrial use; or suitable for mixed-use development . . . . Wis. Stat. § 66.1105(4). An area is blighted if it meets any of

the following descriptions:

a. An area, including a slum area, in which the structures, buildings or improvements, which by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which

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endanger life or property by fire and other causes, or any combination of these factors is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency, or crime, and is detrimental to the public health, safety, morals or welfare.

b. An area which is predominantly open and which consists primarily of an abandoned highway corridor, as defined in s. 66.1333 (2m) (a), or that consists of land upon which buildings or structures have been demolished and which because of obsolete platting, diversity of ownership, deterioration of structures or of site improvements, or otherwise, substantially impairs or arrests the sound growth of the community. Wis. Stat. § 66.1105(2)(ae)1.

¶100 That is the substantive law against which we compare

Counts One and Two. Plaintiffs make three relevant allegations.

In the first, they say the City acted solely on the basis that

the property within the TIDs was blighted. In the second and

third, they say that although the City claimed the property

within TID #8 and TID #10 (respectively) was blighted, the

record before the City contained no evidence this was true.

When we consider the sufficiency of a complaint, "we accept as

true all facts well-pleaded in the complaint and the reasonable

inferences therefrom." Data Key Partners, 356 Wis. 2d 665, ¶19.

¶101 Therefore, the proper analysis accepts the truth of

the following two propositions as the starting point: (1) The

City exercised TID authority based on its assertion that

property within the districts is blighted; and (2) there is no

evidence the City's assertion is true. Counts One and Two

unmistakably challenge whether the preconditions to the City's

exercise of TID authority have been satisfied. Although the court did not say so explicitly, it appears to have concluded

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these claims are not justiciable because they do not satisfy the

third prong of the Loy formula: "The party seeking declaratory

relief must have a legal interest in the controversy——that is to

say, a legally protectible interest." Loy, 107 Wis. 2d at 409-

10 (internal quotation marks and citation omitted). In other

words, the court concluded that the people of Wisconsin have no

legally protectible interest in ensuring municipalities exercise

TID authority only when the legislature says they may. And that

brings us to the first of the court's two foundational errors.

2. The Court Assumed Away the Question

¶102 The court completely missed that Plaintiffs' challenge

goes to whether the preconditions to the City's exercise of TID

authority have been satisfied with respect to the areas defined

by TIDs #8 and #10. Steve Martin, the comic genius, once

described how to be a millionaire and never pay taxes. First,

he said, get a million dollars. The court has done something

similar in assessing the City's authority with respect to TIDS

#8 and #10. First, it said, assume the authority to create them. The court spent most of its analysis describing the

procedure by which a municipality documents that assumption.

But Plaintiffs' actionable concern is not that the City failed

to do its paperwork properly. Their Complaint alleges that the

City lacked the authority to create (or expand) the TIDs because

the statutorily-mandated factual predicate to the exercise of

that authority does not exist.

¶103 The court's analysis started with the unvoiced assumption that the City had the authority to do what it did,

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and in so doing, it assumed away Plaintiffs' actual challenge.

Here is how the court began: "To determine whether the

allegations are sufficient to state a claim upon which relief

may be granted, we must interpret the statute; specifically, we

must determine what the statute means when it requires that the

local legislative body adopt a 'resolution

which . . . [c]ontains findings.'" Majority op., ¶30. Why on

earth would we do that? No one doubts the City's resolution

contains findings. What they doubt is whether they reflect

reality. Nonetheless, the court lamented that "finding" is a

statutorily-undefined term (as if we do not know what a

"finding" is) before settling on a dictionary definition.4 Then,

without explanation, we leapt from Black's definition to the

conclusion that the City need not provide evidence for its

findings.5 Let's stipulate that this non sequitur could be saved

by some hitherto unknown logic——why would it matter? The manner

in which a municipality must document its findings says nothing

at all about whether the findings must be, not to put too fine of a point on it, true.

4 Majority op., ¶33 ("A determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record." (quoting Finding of fact, Black's Law Dictionary 749 (10th ed. 29 2014)). That's a fine definition of a finding of fact, although the court's long history with findings of fact probably makes a dictionary definition unnecessary. 5 Majority op., ¶33 ("Given this ordinary meaning of 'findings', the plain language of the statute does not require that the local legislative body——here, the City Common Council—— itemize the evidence in the record that supports its finding of blight.").

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¶104 The legislature granted municipalities the authority

to create TIDs. But it placed a gate with a combination lock in

front of that grant of authority. The gate will not swing open

unless the statutorily-prescribed combination of conditions is

fulfilled. In this case, the City is trying to access TID-

creating authority using the blight combination. Plaintiffs say

the City did not get it right, and so the gate did not open.

The court's response to Plaintiffs' claim was to consider the

nature of the record the City must make as it jumps the gate.

That is not what the court was supposed to do. It was supposed

to consider whether the people of Wisconsin may seek a

declaration that the City may not jump the gate. That, however,

was only the first of the court's foundational errors.

3. The Court's Category Error

¶105 The balance of the court's opinion on Counts One and

Two comprised its mistaken conclusion that the existence of

blight is a non-justiciable question of legislative policy.

This is a profoundly disturbing category error, inasmuch as it caused the court to conclude that facts are contingent on

municipal policies——a conclusion that obtains nowhere but in

Orwellian dystopias. So the court did not recognize that (1) a

municipality's policy, and (2) the facts on the ground to which

the policy responds, do not fall into the same category. The

first is generally not justiciable; the second is.

¶106 The court created this error when it observed that our

statutes define "blight," in part, with reference to some of the maladies that municipalities have the authority to address:

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The key language in each of these [blight- related] statutes is that the "area," in its current state, "is detrimental to the public health, safety, morals, or welfare." "Public safety, public health, [and] morality . . . are some of the more conspicuous examples of the traditional application of the police power to municipal affairs," Berman v. Parker, 348 U.S. 26, 32 (1954), and a "municipality's exercise of its police power has traditionally been accorded deference by reviewing courts." Nowell v. City of Wausau, 2013 WI 88, ¶46, 351 Wis. 2d 1, 838 N.W.2d 852. Majority op., ¶37. Because it saw similar phrases in the

description of a municipality's authority and the situations a

municipality may address, the court apparently thought they must

be in the same category for purposes of the justiciability

analysis. They are not.

¶107 The court's category error is the consequence of not

recognizing the difference between subjects and objects. The

subject is the municipality's authority; the object is the

situation to which the municipality may apply that authority.

Yes, municipalities have authority to address matters of public

health, safety, morals, and welfare. And yes, certain

properties and areas are blighted (something that affects public health, safety, morals, and welfare). This inexorably leads to

the unremarkable conclusion that municipalities have certain

authority (the subject) to remedy properties or areas that are

blighted (the object). A logically-ordered universe, however,

does not allow the conclusion that this means subjects and

objects are the same thing. Just because municipalities have

authority to address blight does not mean they have the authority to define what blight is. The legislature has already

taken care of that task. It told municipalities, in great 17 No. 2015AP1858.rgb&dk

detail, what "blighted area" means in the context of the Tax

Increment Law. See Wis. Stat. § 66.1105(2)(ae)1.6 This

conflation of subjects and objects guaranteed the court's

justiciability analysis would produce the wrong answer.

¶108 Because of that conflation, the court mistakenly

concluded that a challenge to the City's description of reality

is as non-justiciable as its policy decisions responding to that

reality. Specifically, the court said that "findings of blight

are legislative determinations that 'do[ ] not raise justiciable

issues of fact or law.'" Majority op., ¶36 (quoting Joint Sch.

Dist. No. 1 v. State Appeal Bd., 56 Wis. 2d 790, 794, 203

N.W.2d 1 (1973)). No, findings of blight are most assuredly not

legislative determinations. And the court cited not a single

6 It really could not be otherwise. If the authority to address blight encompassed the authority to define blight, there would be no end to a municipality's authority. An enterprising municipality could create authority ex nihilo through the simple expedient of calling any condition it wished to address "blighted."

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authority to explain how this could possibly be so.7 What to do

about blight (if anything) is a legislative determination. But

the existence of blight (as defined by the legislature) cannot

be a legislative determination unless, alone amongst all

governmental entities and sentient beings, municipalities have

the power to conform the world to their dictates. The first

category involves the exercise of legislative judgment and

discretion. The second category involves the legislators'

accurate apprehension of the world around them. The court's

consistent failure to distinguish between these two categories

resulted in its implied holding that municipalities are entitled

to their own facts.

¶109 Without that category error, none of the authorities

the court cited would support its position. Not one. Each of

the cases on which it relied addresses matters in the first

category——that is, the exercise of a legislative body's judgment

7 The immediately preceding quote from the court's opinion looks like it might contradict our statement, but it does not. Majority op., ¶36 (quoting Joint Sch. Dist. No. 1 v. State Appeal Bd., 56 Wis. 2d 790, 794, 203 N.W.2d 1 (1973)). The Joint Sch. Dist. No. 1 case had nothing to do with blight findings. In fact, the Joint Sch. Dist. No. 1 court concluded that the dispute had nothing to do with findings at all. It instead concerned "the wisdom and advisability of the proposed reorganization" of a school district. Id. at 795. The sentence fragment the court cherrypicked says, in full, this: "As a consequence of these holdings, we have concluded that the merits of a school district reorganization is a legislative determination of public policy questions which does not raise justiciable issues of fact or law." Id. at 794. "Public policy questions" are quintessential non-justiciable issues. The existence of a fact, at least outside Orwell's 1984, is never contingent on a public policy.

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and discretion. For example, Joint Sch. Dist. No. 1 did not say

that all legislative determinations are non-justiciable. It

said "legislative determinations[s] of public policy questions"

are not justiciable. Joint Sch. Dist. No. 1, 56 Wis. 2d 790 at

794 (emphasis added). That, of course, is indubitably true.

The issue in Joint Sch. Dist. No. 1 was the "wisdom and

advisability of the proposed reorganization" of a school

district. Id. at 795. The contest was not over objective

reality, such as whether the school district did or did not

exist. It was over the form the district ought to take, the

resolution of which necessarily rests on the legislative body's

prudential exercise of discretion. That is what made the

legislative determination non-justiciable.

¶110 Similarly, Buhler v. Racine Cty., 33 Wis. 2d 137, 146

N.W.2d 403 (1966), addressed questions of discretion and

judgment, not the reality of the world to which that discretion

and judgment would be applied. The question there was the

propriety of certain zoning classifications. The court concluded that zoning decisions are largely non-justiciable

because they are based on the "wisdom" and "desirability" of the

varying classifications when applied to the properties in

question. Id.at 146-47. If the court's decision today is

correct, then not only the wisdom of the zoning would be non-

justiciable, but also the very nature of the property to which

the zoning applied. Do we really need to say that the nature of

the property does not care about what the municipality thinks of

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it? It is what it is, notwithstanding any number of municipal

"findings" to the contrary.

¶111 The court says, in a footnote, that Berman v. Parker,

348 U.S. 26 (1954), supports its proposition that the existence

of blight is a non-justiciable legislative determination. See

majority op., ¶39, n.20. But it does not explain how. Nor

could it, because Berman recognizes the distinction between

subjects and objects we have laid out in this dissent: "Once

the object is within the authority of Congress, the right to

realize it through the exercise of eminent domain is clear. For

the power of eminent domain is merely the means to the end."

Berman, 348 U.S. at 33. As here, the "object" in Berman was

blighted property. But as Berman recognized, before the

government could act, the object had to have been "within the

authority of Congress [the subject]." The authority at issue

there was eminent domain, a power granted to the District of

Columbia without preconditions. Here, the authority in question

is the creation of a TID, an authority that does not exist unless and until certain legislatively-prescribed preconditions

have been fulfilled. Berman's lesson is that, once the

legislative body has authority (the subject) to operate on the

object (blight), the manner in which it exercises that authority

is a legislative determination committed to the legislative

body's sound discretion and prudence. Consequently, Berman can

have nothing to say here unless we confound subjects and

objects.

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¶112 For essentially the same reasons, David Jeffrey Co. v.

City of Milwaukee, 267 Wis. 559, 578, 66 N.W.2d 362 (1954), does

not support the court's assertion that the existence of blight

is a legislative determination. The issue in David Jeffrey Co.

was not whether a municipality has unreviewable power to declare

something blighted that is not; it was whether the expressed

purpose for eliminating blight in the City of Milwaukee could be

considered a "public use" of private property (as required by

Article I, sec. 13 of our State Constitution). After converting

"public use" into "public purpose," the David Jeffrey Co. court

said "[t]he determination of what constitutes a public municipal

purpose is primarily a function of the legislative body, subject

to a review by the courts, and such determination by the

legislative body will not be overruled by the courts except in

instances where that determination is manifestly arbitrary or

unreasonable." Id. at 579. This is so because the purpose for

applying the municipality's authority (the subject) to the

blighted areas (the object) is a matter of judgment, discretion, and prudence. The David Jeffrey Co. court said nothing to

suggest that the existence of blight (the object) is a

legislative determination.

¶113 The last case on which the court relies for its

proposition, Nowell v. City of Wausau, 2013 WI 88, ¶46, 351

Wis. 2d 1, 838 N.W.2d 852, provides no more support than any of

the others. There, a bar owner asked the court to review the

City of Wausau's decision to not renew its liquor license. The Nowell court observed that the decision to grant or deny a

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liquor license is committed to the municipality's unconstrained

discretion. Unsurprisingly, that court correctly concluded the

municipality's authority was legislative in nature, and subject

to only certiorari review. But Nowell can provide no

instruction here because Plaintiffs are not asking whether the

City exercised its TID authority in a prudent manner; they are

asking whether the preconditions to unlimbering that authority

have been satisfied. Nowell does not——and cannot——tell us that

the existence of blight is a non-justiciable legislative

determination. And the court has identified no case capable of

suggesting it is.

*

¶114 The proper justiciability analysis would recognize

that facts are not contingent on a municipality's prudential

exercise of its discretion. Instead, if the world is to make

any sense at all, the exact opposite must be true: The

municipality's policies must be contingent on the facts. And

that means that facts are justiciable, while policies are generally not. There is no mystery to this. Justiciability, as

the court noted, implicates the separation of powers. Baker v.

Carr, 369 U.S. 186, 217 (1962) ("It is apparent that several

formulations which vary slightly according to the settings in

which the questions arise may describe a political question,

although each has one or more elements which identify it as

essentially a function of the separation of powers."); Majority

op., ¶39 ("This is because de novo review of a legislative determination violates the doctrine of separation of powers.").

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We respect the separation of powers, in part, by not second-

guessing a legislative body's policy choices. Those choices are

generally not justiciable because they comprise the prudential

exercise of judgment and discretion, variables that by their

nature are not susceptible to judicial inquiry. But

legislatures have no monopoly on reality, and so there is no

conceivable violation of the separation of powers when we look

at facts for ourselves. That is to say, while municipalities

are entitled to their choice of policies, they are not entitled

to their own facts.8

8 Contrast this with, for example, Plaintiffs' assertion that they may have a declaration that the City did not fulfill the condition that the Confluence Project would not occur but for the creation and expansion of the TIDs. The statute says "[t]he board may not approve the resolution under this subdivision unless the board's approval contains a positive assertion that, in its judgment, the development described in the documents the board has reviewed under subd. 1. would not occur without the creation of a tax incremental district." Wis. Stat. § 66.1105(4m)(b)2. (emphasis added). Access to TID authority does not depend on whether the project, in fact, would not occur but for the TID. With respect to this precondition, authority depends on the municipality's judgment that it would not occur but for the TID. We traditionally review a municipality's exercise of judgment under common-law certiorari standards. See, e.g., Ottman v. Town of Primrose, 2011 WI 18, ¶¶34-35, 332 Wis. 2d 3, 796 N.W.2d 411 ("Certiorari is a mechanism by which a court may test the validity of a decision rendered by a municipality . . . ."). We apply the common law certiorari standard where there is no express statutory method of review, and our review is limited to the record compiled by the municipality. Moreover, we may only consider:

(1) whether the municipality kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was (continued) 24 No. 2015AP1858.rgb&dk

¶115 The United States Supreme Court's Baker opinion

provides significant guidance in describing the category of non-

justiciable questions:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217.

¶116 Nothing in this formulation is capable of making

Plaintiffs' challenge non-justiciable. The entire formula rests

on an a priori understanding that facts——the stuff of reality——

precede and are therefore outside the category of non-

justiciable questions. Thus, for example, reality (here,

whether certain property satisfies the statutory definition of

blight) has not been (nor could it be) committed to a coordinate branch of government (unless it is entitled to its own facts).

And the statute's definition of blight is so specific there is

no lack of discoverable and manageable standards for recognizing

where it might exist. Nor must the judiciary make any policy

such that it might reasonably make the order or determination in question.

Id.

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determinations as a predicate to identifying blighted

properties. And allowing Plaintiffs to assert that there is no

blight where the City says there is expresses no disrespect for

the City, just disagreement. And so on through all of the Baker

factors. Because the existence of a set of facts cannot be

contingent on a legislative body's exercise of its discretion or

judgment, the court committed an outcome-determinative error in

concluding that both subjects and objects fall in the same

category for purposes of the justiciability analysis.

¶117 In a terse footnote, the court suggests the key to its

opinion is the distinction between legislative and adjudicative

facts. Majority op., ¶39 n.20. It also says that we do not

understand the distinction, and that this failure accounts for

our dissent. Id. Although we get the difference, we do not

understand——and the court does not explain——why that means it

must conflate subjects and objects. There is no magic to

legislative facts——they simply describe the world as perceived

by legislative bodies. Municipalities cannot speak (or write) a single fact into existence (or make one disappear). The facts

either are, or they are not. And that matters because the

legislature conditioned the City's TID authority on whether the

TIDs——as a factual matter——encompass the required amount of

blight. If it did not matter——that is, if the City can create

legislative facts ex nihilo, the truth of which are beyond

questioning——then the legislature can never condition a

municipality's exercise of authority on a factual predicate. If the court is right, then the predicate can never be anything but

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a functional nullity because the municipality will always be

able to create compliance by speaking the "legislative" facts

into existence. That, of course, is not a condition. It is

surplusage. We are supposed to avoid that. See, e.g.,

Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980)

("A statute should be construed so that no word or clause shall

be rendered surplusage and every word if possible should be

given effect.").

*

¶118 The factual predicates to the exercise of a

municipality's TID authority are not legislative determinations.

They are simply facts, the existence of which is as susceptible

to determination in the context of the Tax Increment Law as in

any other setting. The court erred, profoundly, when it

concluded that Counts One and Two are non-justiciable. Our

jurisprudential world will be on tilt until we abandon this

reality-warping category error.

C. Dismissal of Counts Three and Four ¶119 The court concludes that Count Three insufficiently

states a claim because it does not allege facts plausible enough

to show TID funds were used to demolish historic buildings. And

it concludes that Count Four suffers the same infirmity because

Plaintiffs do not allege facts that plausibly show the grants

were really paying the developer's property taxes. We disagree.

1. Standard of Review and Applicable Law

¶120 Our review of the sufficiency of a complaint is a question of law reviewed de novo. See Kaloti Enterprises, Inc.

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v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis. 2d 555, 699

N.W.2d 205. Wisconsin Stat. § 802.02(1)(a) provides the

necessary requirements for a valid complaint:

(1) Contents of pleadings. A pleading or supplemental pleading that sets forth a claim for relief, whether an original or amended claim, counterclaim, cross claim or 3rd-party claim, shall contain all of the following:

(a) A short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief.

(b) A demand for judgment for the relief the pleader seeks. ¶121 Wisconsin adopted "notice pleading" "so that legal

disputes are resolved on the merits of the case" rather than

dismissed based on a technicality. See Hlavinka v. Blunt, Ellis

& Loewi, Inc., 174 Wis. 2d 381, 403, 497 N.W.2d 756 (Ct. App.

1993) (quoting Korkow v. Gen. Cas. Co. of Wis., 117 Wis. 2d 187,

193, 344 N.W.2d 108 (1984)). "The 'notice' pleading rules of

the current civil procedure code are intended to facilitate the orderly adjudication of disputes; pleading is not to become a

'game of skill in which one misstep by counsel may be decisive

of the outcome.'" Korkow, 117 Wis. 2d at 193 (quoted source

omitted).

¶122 When a court is asked to determine whether a complaint

states a claim, we accept the facts pled in the complaint as

true, as well as "all reasonable inferences that can be drawn

from those facts." Hlavinka, 174 Wis. 2d at 403. To be valid, the complaint must give notice sufficient enough "that the

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defendant, and the court, can obtain a fair idea of what the

plaintiff is complaining, and can see that there is some basis

for recovery." Id. (quoted sources and internal quotation marks

omitted). The complaint should be liberally construed in favor

of stating a claim and only dismissed when it is clear that

there are no conditions under which Plaintiffs could prevail.

See Hermann v. Town of Delavan, 215 Wis. 2d 370, 378, 572

N.W.2d 855 (1998).

2. Application

¶123 Plaintiffs' third claim seeks a declaration voiding

the City Council's TID resolution because TID funds were

unlawfully used to pay for demolition costs of historic

buildings in violation of Wis. Stat. § 66.1105(2)(f)1.a.9 The

court agrees that the plain language of Wis. Stat.

§ 66.1105(2)(f)1.a prohibits using TID money to pay for the

demolition of a historic building. See majority op., ¶53.

Nonetheless, the court concludes that Count Three failed to

9 Wisconsin Stat. § 66.1105(2)(f)1.a provides:

"Project costs" include:

a. Capital costs including, but not limited to, the actual costs of the construction of public works or improvements, new buildings, structures, and fixtures; the demolition, alteration, remodeling, repair or reconstruction of existing buildings, structures and fixtures other than the demolition of listed properties as defined in s. 44.31 (4); the acquisition of equipment to service the district; the removal or containment of, or the restoration of soil or groundwater affected by, environmental pollution; and the clearing and grading of land.

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state a claim for declaratory relief because it did not use the

right words. According to the court, (1) the Complaint "did not

allege facts which establish that the developer in fact used the

money from the cash grant to pay for the demolition of" the

historic buildings; and (2) the Complaint did not "allege facts

which demonstrate that the developer was likely to do so"; and

(3) the Plaintiffs allege only that "'there is . . . no way to

assure' that the developer did not use the cash grants to pay

for the demolition of historic buildings." Id., ¶55.

¶124 The court is mistaken because it did not account for

what everyone knows: Money is fungible. The Complaint alleges

that historic buildings on the National Register of Historic

Places within the TID district were purchased and demolished by

the developer——specifically identifying at least one of those

buildings by name, the Kline Department Store, and another by

address, "the historic property at 2 South Barstow Street." It

alleges the demolition occurred "after the project plans were

developed and, upon information and belief, with the understanding that [the developer] would be reimbursed for the

costs of development." It further alleges: "A substantial part

of the development costs actually incurred by the developer thus

includes the costs of demolition as well as the purchase price

of the Kline Department Store building and other buildings"

protected by statute as historic places. Paragraph 46 of the

Complaint alleges the City will pay the developer $10,400,000 in

the form of cash grants for project costs, without prohibiting the developer from using that money to purchase or demolish the

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historic properties. Paragraph 94 alleges "two lump-sum

'contributions' of $2.95 million to the developer" which "may be

used by the developer for any project related purpose, including

reimbursing the developer for its already-incurred costs. These

costs include acquisition and demolition" without prohibiting

the developer from using this money "for the costs of

demolishing" historic properties. Finally, the Complaint

states: "Lump sum reimbursement for already incurred costs can

properly be viewed as including any of those costs, including

the costs of demolishing historic structures within the

Confluence Commercial Historic District."

¶125 Taking these alleged facts as true, as we must,

together with any reasonable inference derived therefrom, see

Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356

Wis. 2d 665, 849 N.W.2d 693, Plaintiffs' claim survives a motion

to dismiss. The statute prohibits using TID funds to demolish

historic places. The Complaint alleges the developer bought and

demolished historic places pursuant to a development agreement under which the City pays millions of dollars in cash grants to

the developer for any project-related purpose. In essence, the

Complaint asserts the City is unlawfully transferring taxpayer

money to the developer in part to cover the developer's costs

for demolishing historic buildings; if proven, this would

constitute an illegal expenditure of public funds. The

Complaint need not track the currency's serial numbers from the

TID funds to the wrecking company's bank account.

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¶126 The court heightens pleading requirements beyond what

the law supports. It dismisses this claim even though the

Complaint conveys fair notice of Plaintiffs' grievance and even

though the Complaint's factual allegations and reasonably drawn

inferences, if true, provide a basis for recovery. If

Plaintiffs' claim proceeded, discovery would either prove or

disprove Plaintiffs' allegation that the developer used TIF

funds to cover demolition costs. If discovery shows Plaintiffs'

allegations were correct, Plaintiffs would be entitled to a

declaration that the City violated the statute. The court's

perplexing dismissal of this claim achieves what notice pleading

is supposed to prevent——dismissal on a technicality. The court

selectively ignores pivotal words in the Complaint and spurns

what is left as insufficient. It suggests that had Plaintiffs

simply chosen a few different words, this claim would have

survived dismissal. The court's analysis is unsound. The

Complaint is sufficient to withstand a motion to dismiss and

this claim should have been allowed to proceed to a decision on the merits rather than dismissed at the pleading stage on a

specious technicality.

¶127 Plaintiffs' Fourth Count alleges that the cash grants,

through which the City pays the developer millions of dollars,

violate the Uniformity Clause of the Wisconsin Constitution

because the cash grants effectively lower the developer-owners'

property taxes. The court's opinion again concludes Plaintiffs'

Complaint is factually insufficient. We disagree.

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¶128 Plaintiffs' Complaint alleges: (1) the cash grants

reimburse the developer-owner "for all or a part of the taxes

paid on its property"; (2) "the project plans provide for

millions of dollars of incremental TID taxes to be paid directly

to the owner of the property"; (3) these payments "function[] as

a tax rebate or tax credit"; (4) as a result, the developer-

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

identically-assessed property elsewhere in Eau Claire"; and (5)

this arrangement violates the Uniformity Clause.

¶129 As noted, in reviewing a sufficiency of the complaint

challenge, we accept all of its asserted facts and reasonably

drawn inferences as true. We analyze any legal assertions

independently. Plaintiffs' Complaint gives fair notice that

Plaintiffs seek a declaration regarding the constitutionality of

the cash grant part of the TIF statute. The Complaint alleges

that the cash grants operate as a tax rebate that in effect

lowers the developer's taxes, making the tax rate paid by the

developer more favorable than the rate paid by other taxpayers. The facts alleged are sufficient to withstand a motion to

dismiss. The court errs by concluding otherwise, which

prevented the court from taking the next step of reviewing the

legal basis for the claim. If the facts alleged are true, and

if the legal premises are correct, Plaintiffs could receive the

relief they seek: a declaration that the cash grants violate

the Uniformity Clause. Accordingly, the court errs in

prematurely disposing of this claim on the narrow basis that the Complaint insufficiently pleads adequate facts to support a

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Uniformity Clause claim. Although the claim suffers no fact-

related pleading inadequacy, it nonetheless fails to state a

claim for the reasons we explain below.

D. Constitutionality of TIF Cash Grants

¶130 The court's rejection of Plaintiffs' constitutional

challenge to the cash grants based on purportedly insufficient

factual allegations in the Complaint is particularly puzzling

because resolving the issue of whether the cash grants violate

the Uniformity Clause does not depend on factual findings or

require discovery.10 Rather, whether tax policy implicates the

Uniformity Clause presents a legal question, which is ripe for

resolution by this court. A statute's constitutionality

presents an issue of law, which we review de novo. State v.

Pittman, 174 Wis. 2d 255, 276, 496 N.W.2d 74 (1993).

¶131 Plaintiffs make an "as-applied" challenge.11 Although

statutes are generally presumed constitutional, when the

challenge is not to the statute itself, but to its application,

no presumption exists. Soc'y Ins. v. LIRC, 2010 WI 68, ¶27, 326 Wis. 2d 444, 786 N.W.2d 385 ("While we presume a statute is

constitutional, we do not presume that the State applies

10 We address only Plaintiffs' constitutional challenge under the Uniformity Clause. We cannot decide its constitutional challenge based on the public purpose doctrine because that analysis depends upon the blight findings. 11 We acknowledge the parties' dispute as to whether the challenge is a facial or an as-applied challenge. Like the majority, we analyze it as an as-applied challenge.

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statutes in a constitutional manner.")12 Plaintiffs argue that

cash grants to a non-tax exempt developer who also owns the

property violate the Uniformity Clause. They contend such

grants operate as a tax rebate, which effectively lowers the

property taxes the developer pays to the City. Accordingly,

Plaintiffs do not challenge all cash grants under the TIF law,

but only those made to property owners who are subject to

taxation.

¶132 The Uniformity Clause of the Wisconsin Constitution

guarantees "[t]he rule of taxation shall be uniform." Wis.

Const. art. VIII, § 1. Generally speaking, the uniformity

clause applies to property taxes, which are "direct taxes on

real estate." Columbia Cty. v. Wis. Retirement Fund, 17 Wis. 2d

310, 325, 116 N.W.2d 142 (1962). A Uniformity Clause analysis

primarily focuses on "inequality in the assessing or collecting

of a tax." State ex rel. Van Dyke v. Cary, 181 Wis. 564, 572,

191 N.W. 546 (1923). When taxes are collected or assessed

unequally, the Uniformity Clause is implicated. In Gottlieb v. Milwaukee, 33 Wis. 2d 408, 425-32, 147 N.W.2d 633 (1967), this

court held a tax law that "partially exempt[s] particular tax

property" violated the Uniformity Clause. The tax law in

Gottlieb gave decades-long tax exemptions to developers who

12 A facial challenge to a statute alleges that the statute is unconstitutional on its face——that it is unconstitutional in every circumstance. State v. Smith, 2010 WI 16, ¶10 n.9, 323 Wis. 2d 377, 780 N.W.2d 90. In contrast, an as-applied challenge asserts that a statute is unconstitutional as it relates to the facts of a particular case or a particular party. Id.

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agreed to construct or improve substandard properties in

exchange for partial freezing of tax assessments. Id. Such an

arrangement lowered the tax rate for the developers and resulted

in other taxpayers paying a higher and disproportionate share of

property taxes, in clear violation of uniformity. Id. at 429.

¶133 The statute Plaintiffs challenge here does not involve

a tax freeze or a tax exemption. The developer-owner in the

matter before us is assessed uniformly with other taxpayers and

fully pays property taxes on that assessment. Plaintiffs'

constitutional challenge targets municipal disbursement of tax

revenues after collection rather than the collection itself.

Disbursement of funds generally survives challenges under the

Uniformity Clause. In an early dispute over a surtax imposed to

fund a teachers' retirement fund, this court identified "a

substantial distinction between an inequality in the assessing

or collecting of a tax and inequality in the disbursing of its

proceeds among those who contributed," concluding that "while

the former may invalidate the tax, the latter does not . . . ." State ex rel. Van Dyke, 181 Wis. at 572. "TIF departs from

uniformity only with respect to spending," which is significant

because state courts hold that "state constitutional uniformity

requirements appl[y] only to tax assessment and tax rates, not

spending." Richard Briffault, The Most Popular Tool: Tax

Incremental Financing and the Political Economy of Local

Government, 77 U. Chi. L. Rev. 65, 75 & n.54 (2003) (citing

state court opinions from Indiana, Illinois, Colorado,

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Tennessee, Utah, and Iowa upholding TIF under their respective

uniformity clauses).

¶134 The constitutional requirement of uniform taxation

does extend, in some circumstances, to the manner of fund

disbursement. See State ex rel. La Follette v. Torphy, 85

Wis. 2d 94, 107, 108, 270 N.W.2d 187 (1978). While uniformity

does not extend to disbursement of tax revenues when paid to

counties and municipalities for use on government and public

improvements, id. at 107, when a tax statute authorizes payment

to an individual taxpayer, the Uniformity Clause applies if the

effect of the statute imposes an unequal tax burden. Id. at

108-110. "The uniformity clause is intended to protect the

citizen against unequal and unjust taxation." Id. at 198. In

Torphy, this court held the tax law giving tax credits to

residential property owners who elected to make "building and

garage improvements which result in increased property tax

assessments" had the effect of imposing an unequal tax burden on

homeowners with the same assessed valuations and therefore violated the Uniformity Clause. Id. at 98, 111.

¶135 Plaintiffs here allege that the TIF cash grants

violate the Uniformity Clause because, like the tax credits in

Torphy, they have the effect of lowering the developer's tax

rate, rendering the rate unequal among taxpayers. The

dispositive question then is whether the cash grants act as a

tax rebate, credit, or exemption that has the effect of imposing

an unequal tax burden upon other Eau Claire taxpayers. We

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conclude that the TIF cash grants do not have that effect and

therefore do not violate the Uniformity Clause.

¶136 This court has already rejected a facial and as-

applied constitutional challenge to the TIF statute in Sigma

Tau, 93 Wis. 2d at 412. Sigma Tau determined:

With respect to the question of uniformity of taxation among individual taxpayers, the Tax Increment Law is clearly distinguishable, both in form and effect, from the tax provisions struck down by the court in Gottlieb and in Torphy. In both of those cases the court based its conclusion that the provisions were unconstitutional upon its finding that taxpayers owning equally valuable property were required to pay disproportionate amounts of taxes.

Under tax increment financing, however, there is no such disproportionate impact upon taxpayers within the same territorial boundaries of the unit imposing the tax. All taxpayers . . . continue to be taxed at a uniform rate based upon valuations uniformly arrived at. No taxpayer or group of taxpayers is being singled out for preferential treatment either in the form of an exemption from taxation or a tax credit. Thus, we conclude, taxation under tax incremental financing is uniform. Id. at 412.

¶137 Plaintiffs contend the cash grant provision of the TIF

statute did not exist at the time Sigma Tau declared the TIF law

constitutional. The City disputes this, arguing cash grants

have always been a part of the TIF framework. The State, in an

amicus brief, agrees: "'Cash grants' to private developers have

always been part of the definition of 'eligible project costs'

under Wisconsin's TIF law." It is not necessary to resolve this

dispute in reaching our conclusion that the TIF cash grants do not violate the Uniformity Clause.

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¶138 The purpose of the TIF law is "to provide a mechanism

for cities to finance projects commenced" under redevelopment

statutes or to combat blighted areas. Id. at 403. Wisconsin

Stat. § 66.1105(2)(f)2.d allows the City to give cash grants to

developers if they "signed a development agreement with the

city."13 The cash grants are not a tax rebate, credit, or

exemption. They are payments pursuant to an agreement to engage

in redevelopment projects. The cash grants are not linked to

future property tax payments, do not give the developer a

property tax break, and do not operate as a tax refund. The

grants do not have the effect of creating an unequal tax burden

on similarly situated taxpayers. They do not lower the

developer's tax burden or require other taxpayers to pay more

than their fair share. Both the developer and other taxpayers

are taxed at the same rate based on the equalized value of their

property. Thus, the cash grants do not apportion the tax burden

unevenly. The City effectively pays developers to undertake a

project it would otherwise plan, manage, and pay for itself, if it had the ability to do so. The City pays for development

services using revenues the project itself will generate. See

Monroe WaterWorks Co. v. City of Monroe, 110 Wis. 11, 12-13, 85

N.W. 685 (1901) (concluding City's contract agreeing to pay for

13 Wisconsin Stat. § 1105(2)(f)2.d provides as material: " . . . none of the following may be included as project costs for any tax incremental district . . . [c]ash grants made by the city to owners, lessees, or developers of land that is located within the tax incremental district unless the grant recipient has signed a development agreement with the city . . . ."

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water services is not unlawful grant of immunity from taxes when

"the sum so stipulated to be paid is a fair and just allowance

to compensate for the actual value of the services to be

rendered, and that the stipulation is bona fide, and not in the

nature of an evasion of the law against exemption from taxes.").

The developer uses the grants to defray the costs of economic

development, not to lower or offset property tax payments.

¶139 The TIF cash grants do not alter the uniformity of tax

payments among taxpayers or impose an unequal tax burden. They

do not impose on other taxpayers a disproportionate amount of

taxes like the tax laws found unconstitutional in Gottlieb and

Torphy. Accordingly, we conclude the TIF cash grants do not

violate the Uniformity Clause.

III. CONCLUSION

¶140 Plaintiffs have standing in this matter and the law

permits them to seek both declaratory judgment and certiorari

review. Plaintiffs' Complaint alleges sufficient facts to

withstand a motion to dismiss on each of its claims. The TIF cash grants do not have the effect of imposing an unequal tax

burden; therefore, the TIF statute, as applied to developer-

owners receiving TIF grants, comports with the Uniformity Clause

of the Wisconsin Constitution, requiring dismissal of Count 4.

¶141 The court says Plaintiffs' claims must be dismissed

because "a court cannot issue a declaration regarding the wisdom

of a legislative determination." Majority op., ¶40. But it

says so only because it believes facts are contingent on municipal policy choices, a paradigm that is untenable,

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unworkable, and unintelligible. Consequently, the court

abdicated the judicial duty to decide whether a municipal body

properly applied the law. Because the court jettisons

Plaintiffs' cause of action without basis, we respectfully

dissent.

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