July/August 2017 Issue
Also in this issue: Wisconsin Supreme Court Expands Fair Dealership Law to Municipalities | Conditional Use Zoning Law in Flux | Supreme Court Decides Wisconsin Regulatory Takings Case | County’s Courthouse Access Policy Violated First Amendment | Wisconsin Supreme Court Addresses Open Meetings Law And Committees
Limitations on Interior Property Inspections for Property Tax Assessments
Brian P. Goodman | 08.06.17
In its recent decision in Milewski v. Town of Dover, 2017 WI 79, the Wisconsin Supreme Court held that requiring property owners to either consent to a tax assessor coming inside their home or give up their right to challenge a municipality’s reassessment of their property value violates the right to due process guaranteed by the Fourteenth Amendment.
The Milewskis own a home in the Town of Dover, Wisconsin. In 2013, the Town reassessed the value of all the properties in its jurisdiction. In Wisconsin, real property must be valued from actual view or from the best information that the assessor can practicably obtain, when an actual view is not feasible. When the assessor arrived at the Milewskis’ home, they allowed him to view their property’s exterior but did not allow him to inspect the interior of their home. After the assessor provided a written request to view the interior of their home, the Milewskis again refused. The assessor made no further attempts to view the interior of the property and assessed it at a value that was 12.12 percent higher than the prior year. Accordingly, their property taxes increased.
The Milewskis sought to challenge this revaluation. In order to challenge an assessor’s revaluation, a dissatisfied property owner may object to the local board of review. The property owner may do so, however, only after he meets the board of review’s filing requirements, which include allowing a tax assessor to view the property. If the property owner has refused a reasonable written request of the assessor to view the property, that property owner cannot appear before the board of review. Importantly, this requirement does not say where the assessor will be when he conducts his view of the property.
The Milewskis appeared before the Dover Board of Review in November 2013. However, because the Board of Review determined the Milewskis had refused a reasonable written request of the assessor to view their property, the Board of Review would not hear their objection. The Town told the Milewskis that they must either submit to the tax assessor’s inspection of the interior of their home or lose the right to challenge the revaluation of their property. The Milewskis subsequently brought a lawsuit against the Town claiming that requiring such a choice was unconstitutional. Specifically, the Milewskis argued that the interior inspection was an unreasonable search that violated the Fourth Amendment and their inability to challenge the revaluation violated their right to due process guaranteed by the Fourteenth Amendment.
The court found that while the requirement to allow one’s property to be viewed before challenging a valuation was not unconstitutional, the requirement was unacceptably applied in the Milewskis’ case. The court noted that if a government agent occupies private property for the purpose of obtaining information, he is conducting a search within the meaning of the Fourth Amendment. A tax assessor who enters a home to conduct an interior view occupies private property for the purpose of obtaining information and is therefore conducting a search within the meaning of the Fourth Amendment. Under these circumstances, without a warrant, consent, or other applicable exception, conducting such a search violated the Fourth Amendment.
The court further noted that while Wisconsin requires real property to be valued from actual view or from the best information that the assessor can practicably obtain, there is no preference for one over the other. Therefore, while an interior inspection may be “useful, convenient, and expedient” in developing a valuation, it is not required. A homeowner has a right to deny a tax assessor entry, and the assessor must subsequently seek the best information they can practicably obtain to conduct the valuation.
The court held that the Milewskis have a right to challenge the revaluation of their property in front of the Board of Review and a right to prevent the tax assessor from inspecting the interior of their home. The Board of Review cannot require an unconstitutional interior inspection of the property before allowing property owners to challenge a revaluation.
This case should put municipalities on notice of the requirements of the Fourth and Fourteenth Amendments as they relate to tax assessments of real property. First, homeowners have the right to refuse entry to tax assessors, and tax assessors must therefore rely on the best information they can practicably obtain. Second, so long as property owners have met a municipality’s board of review filing requirements, a municipal board of review must allow them to challenge a revaluation. Specifically, the view required by the filing requirements does not have to be a view of the property’s interior. To that end, if the filing requirements are met, the municipal board of review must allow property owners to challenge a revaluation whether the assessor was provided access to view the property’s interior or not.
— Brian P. Goodman
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