HomeMy WebLinkAbout18. 22-365AUGUST 23, 2022 22-365 RESOLUTION
(CARRIED___7-0_____LOST________LAID OVER________WITHDRAWN________)
PURPOSE: APPROVE SETTLEMENT WITH WALMART FOR PROPERTY TAX
ASSESSMENTS FOR TAX YEARS 2020, 2021, 2022 AND 2023 FOR
PROPERTY LOCATED AT 351 SOUTH WASHBURN STREET
INITIATED BY: LEGAL DEPARTMENT
WHEREAS, Wal-Mart Real Estate Business Trust filed suit challenging the
property tax assessment for its property, Walmart, located at 351 South Washburn Street
in the City of Oshkosh; and
WHEREAS, the parties have reached a tentative settlement of this matter
contingent upon the approval of the Common Council compromising the claims for tax
years 2020, 2021, 2022 and 2023.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are hereby authorized to enter into an appropriate
settlement agreement with Wal-Mart Real Estate Business Trust pertaining to property
located at 351 South Washburn Street in the City of Oshkosh in resolution of current
litigation between the parties, 20-CV-481, 2021-CV-433 and 22-CV-486 in Winnebago
County Circuit Court, according to the terms and conditions as shown on the attachment
to this Resolution.
BE IT FURTHER RESOLVED that the proper City Officials are hereby authorized
and directed to execute and deliver an agreement substantially in compliance with the
terms listed above, any changes in the execution copy being deemed approved by their
respective signatures, and said City officials are authorized and directed to take those
steps necessary to implement the terms and conditions of the Agreement.
TO: Mayor and Members of the Common Council
FROM: Lynn A. Lorenson, City Attorney
DATE: August 18, 2022
RE: Approve Settlement with Walmart for Property Tax Assessments for Tax Years
2020, 2021, 2022 and 2023 for Property Located at 351 South Washburn Street
Walmart filed suits claiming excessive assessment for property occupied by a Walmart store
located at 351 South Washburn Street in the City of Oshkosh seeking a refund of taxes paid in
2020 and 2021 and a reduction in assessment for this year. The Walmart building itself is 208,278
square feet and located on close to 23 acres of land. It was built in 2002. There has been no recent
sale of the property.
Representatives for the City and Walmart met on August 10th with a mediator and were able to
reach a proposed settlement. The City was represented by outside counsel Attorney Ryan
Braithwaite with the Stafford Rosenbaum firm in this case under the City’s insurance policy.
The mediator was former Wisconsin Circuit Court Judge Jeff Conen.
Council is being asked to approve the proposed settlement.
BACKGROUND
The Walmart property is currently assessed at $13,017,400. Walmart has been actively
challenging their assessments, both in the City of Oshkosh and elsewhere over the past several
years. Walmart had previously challenged their assessment for this property in the City of
Oshkosh for 2017-2019 and that case was settled in 2019. The current $13,017,400 value was
carried forward from the agreed upon value for 2019 in that settlement.
In their challenges Walmart tends to focus on the assessed value of the property on a square
foot basis and that was the basis that the parties used for settlement discussions. The current
assessment of $13,017,400 equates to a value of $62.50 per square foot using the assessed value.
Walmart hired an appraiser who valued the property at $7,200,000, which corresponds to an
assessed value of $6,403,680 in 2020 and $5,966,640 in 2021. The appraiser also used a slightly
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
small number for his measurement of square footage. His value conclusion equated to $34.99
per square foot, using his measurement of 205,781 square feet.
ANALYSIS
Valuation of large box stores is somewhat complicated by the tendency of the market to value
on a per square foot basis for the main retail center only, not taking into consideration other
structures on the property or site amenities as is done in the general property assessment process
as well as the tendency for large retail stores to sell only after they are no longer used for their
original purpose. These “dark sales” do not provide ideal comparable properties on which to
rely and must be significantly adjusted for various differences in age, location and other factors;
making precise valuation of a site more difficult. Some cities have recently experienced some
success in challenging the “dark store” theories in court and currently there is pending before
the Wisconsin Supreme Court a case in relation to a tax assessment by Lowe’s that will likely
resolve this issue, though a decision will likely not be issued for several months.
When reviewing this case, city staff and outside counsel considered the condition of this
particular Walmart property as well as reviewing the assessments of similar Walmart stores in
other cities, in particular, the assessments of Walmart stores in our nearest neighbors – Fond du
Lac, Neenah and Appleton. The Oshkosh Assessment was higher than Neenah and Appleton
and in the experience of the City’s contract assessor higher than some other similar Walmart
stores throughout the state. Fond du Lac reported a higher assessment but it is our
understanding that there are issues with the configuration of the property in relation to that
particular store as well as current or recent litigation, so while the Fond du Lac store was
considered, it was given less weight in the mediation by the parties for those reasons.
The proposed settlement would use the City’s estimated square footage and would step down
the assessed value for the Walmart store as follows:
Year $/sq ft assessment
(208,278 sq ft)
Assessed Value - Round
to nearest $100
Current assessment $62.50 $13,017,400
Settlement 2020 $58.00 $12,080,100
Settlement 2021 $58.00 $12,080,100
Settlement 2022 $56.00 $11,663,600
Settlement 2023 $56.00 $11,663,600
Stepping the assessment down over the term of the settlement minimizes the impact on taxing
jurisdictions which will refund through the chargeback process the amounts previously paid.
The settlement amounts are more in line with the regional values for comparable properties.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
The 2020 assessment ratio was approximately 0.8894, which leads to an estimated fair market
value of $13,582,500. The 2021 assessment ratio was approximately 0.8287, which leads to an
estimated fair market value of approximately $14,577,000.
Based upon a review of the property; the appraisal done by Walmart; the review by an expert
retained by the City of the assessment and Walmart appraisal; recent settlements and other
relevant information; the reduction in value appears reasonable and equitable in this case. The
City’s Commercial Assessor reviewed the property and recognizing that property valuation is
a range of value, believes that the proposed settlement is fair and equitable given the nature of
the building, its condition and the condition and structure of the outbuildings and other
improvements and the assessment of other similar properties both in Oshkosh and elsewhere
within the State of Wisconsin.
Walmart has approved the settlement.
FISCAL IMPACT
The Finance Department will calculate the final amount of the refunds and that information will
be provided with the resolution on the council agenda. The appropriate amounts will also be
calculated for chargebacks to each of the taxing jurisdictions. The property tax roll for this tax
year will be adjusted prior to tax bill printing to reflect the agreed upon settlement value.
RECOMMENDATION
Staff and Outside Counsel recommend approval of the Settlement.
Respectfully Submitted, Approved:
Lynn A. Lorenson John Fitzpatrick
City Attorney Assistant City Manager /
Director of Administrative Services
1 of 2
Winnebago County Case Numbers 2020CV000481 & 2021CV000433 Wal-
Mart Real Estate Business Trust vs. City of Oshkosh
This matter has been resolved under the following terms and conditions:
1. The parties agree to the following square foot assessment value for the property
located at 351 Washburn Street, Oshkosh, WI (Parcel No. 0616030000):
a. Tax year 2020=$58 per square foot
b. Tax year 2021=$58 per square foot
c. Tax year 2022=$56 per square foot
d. Tax year 2023=$56 per square foot
2. That said settlement shall be subject to the approval of the City of Oshkosh,
City Council at their August 26, 2022, meeting.
3. That said settlement shall also be subject to language agreed upon by the
parties regarding any material change to the condition of the property for the
tax year 2023.
4. That the refunds due to the Plaintiff shall be paid by September 30, 2022.
5. Within 10 days of the payment of such refunds, a Stipulation and Order for
Dismissal with Prejudice shall be filed with the Circuit Court for Winnebago
County.
Dated at Milwaukee, Wisconsin, this 21st day of December 2021.
_________________________________________
Christopher Strohbehn
Gimbel. Reilly, Guerin, and Brown LLP
Attorney for the Plaintiff
2 of 2
Winnebago County Case Number 2021CV000433 Wal-Mart Real Estate
Business Trust vs. City of Oshkosh
__________________________________________
Ryan Braithwaite
Stafford Rosenbaum LLP
Attorney for the Defendant
__________________________________________
Lynn Lorenson
City Attorney
City of Oshkosh
Drafted by:
Attorney Jeffrey A. Conen
Hansen Reynolds, LLC
301 North Broadway
Suite 400
Milwaukee, Wi 53202
414-455-0056
jconen@hansenreynolds.com
Property
Parcel
Year
Assessed
Rate Original Settlement Difference
Total FMV 14,636,400 13,582,500
Assessment Ratio 0.889387532 0.889387532
Total Assessed Value 13,017,400 12,080,100
State - - - -
County 5.362 69,804.89 64,778.68 5,026.21
City 11.141 145,031.42 134,588.63 10,442.79
School District 10.034 130,620.15 121,215.03 9,405.12
School Credit (1.677) (21,825.83) (20,254.29) (1,571.54)
Net School District 108,794.32 100,960.74 7,833.58
Tech College 1.117 14,545.58 13,498.25 1,047.33
Total 25.979 338,176.21 313,826.30 24,349.91
WALMART
351 S Washburn St
06-1603-0000
2020
Property
Parcel
Year
Assessed
Rate Original Settlement Difference
Total FMV 14,636,400 13,582,500
Assessment Ratio 0.889387532 0.889387532
Total Assessed Value 13,017,400 12,080,100
State - - - -
County 5.362 69,804.89 64,778.68 5,026.21
City 11.141 145,031.42 134,588.63 10,442.79
School District 10.034 130,620.15 121,215.03 9,405.12
School Credit (1.677) (21,825.83) (20,254.29) (1,571.54)
Net School District 108,794.32 100,960.74 7,833.58
Tech College 1.117 14,545.58 13,498.25 1,047.33
Total 25.979 338,176.21 313,826.30 24,349.91
WALMART
351 S Washburn St
06-1603-0000
2020
Property
Parcel
Year
Assessed
Rate Original Settlement Difference
Total FMV 15,708,100 14,577,000
Assessment Ratio 0.8287072 0.8287072
Total Assessed Value 13,017,400 12,080,100
State - - - -
County 5.407 70,379.98 65,312.37 5,067.61
City 11.608 151,109.31 140,228.89 10,880.42
School District 11.350 147,749.69 137,111.18 10,638.51
School Credit (1.660) (21,603.85) (20,048.29) (1,555.56)
Net School District 126,145.84 117,062.89 9,082.95
Tech College 1.090 14,182.93 13,161.70 1,021.23
Total 27.795 361,818.06 335,765.85 26,052.21
Total Refund 50,402.12
WALMART
351 S Washburn St
06-1603-0000
2021