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HomeMy WebLinkAbout09-13JANUARY 13, 2009 09 -13 ORDINANCE FIRST READING (CARRIED LOST LAID OVER WITHDRAWN ) PURPOSE: CREATE AN ORDINANCE TO ALLOW TAXPAYERS TO REQUEST AN EXTENSION FROM THE BOARD OF REVIEW FOR HEARING APPEALS AND TO SPECIFY THE REQUIREMENTS RELATED TO THE PRESENTATION OF EVIDENCE AT BOARD OF REVIEW PROCEEDINGS INITIATED BY: FINANCE DEPARTMENT A GENERAL ORDINANCE OF THE CITY OF OSHKOSH CREATING SECTION 2 -56(C) TO ALLOW TAXPAYERS TO REQUEST AN EXTENSION FROM THE BOARD OF REVIEW FOR HEARING APPEALS AND TO SPECIFYTHE REQUIREMENTS RELATED TO THE PRESENTATION OF EVIDENCE AT BOARD OF REVIEW PROCEEDINGS WHEREAS, the Wisconsin State Legislature pursuant to 2007 Wisconsin Act 86 has enacted legislation allowing municipalities to make certain changes to the procedures and duties of the Board of Review. The Common Council of the City of Oshkosh does ordain as follows: SECTION 1. That Section 2 -56(C) of the Oshkosh Municipal Code pertaining to Hearing Extensions for the Board of Review is hereby created to read as follows: (C) The City of Oshkosh elects to adopt the provisions of 70.47(7)(c) with review as provided in §70.47(13) of the Wisconsin Statutes. To that end, except as otherwise specifically provided, the procedures established in §70.47(7)(c) with review as provided in §70.47(13) of the Wisconsin Statutes are hereby adopted and by reference made a part of this Code as if fully set forth herein. It is the intention of this ordinance to include § §70.47(7)(c) and 70.47(13) of the Wisconsin Statutes as well as any other provisions of the Wisconsin Statutes referenced or related to the procedures set forth within these sections in effect at the time of adoption of this section together with any applicable prior revisions and all future recodifications, renumberings and amendments unless otherwise expressly provided in such references. It is the intention of this section that any act required to be performed or prohibited by these of the Wisconsin Statutes, as previously amended, presently in effect or as may be amended in the future, incorporated within this section by reference, is an act required to be performed or is an act prohibited by this section. JANUARY 13, 2009 09 -13 ORDINANCE FIRST READING SECTION 3. This ordinance shall be in full force and effect from and after its passage and publication. SECTION 4. Publication Notice. Please take notice that the City of Oshkosh enacted ordinance #09 -XXX CREATE AN ORDINANCE TO ALLOW TAXPAYERS TO REQUEST AN EXTENSION FROM THE BOARD OF REVIEW FOR HEARING APPEALS AND TO SPECIFY THE REQUIREMENTS RELATED TO THE PRESENTATION OF EVIDENCE AT BOARD OF REVIEW PROCEEDINGS, on January 27, 2009. The ordinance would adopt the optional procedures for board of review hearings available under §70.47(7)(c) with review as provided in §70.47(13) of the Wisconsin Statutes and allow taxpayers to request a 60 -day extension from the Board of Review for a hearing; require that the taxpayer and assessor present all evidence to the Board of Review to support their respective positions; and if the taxpayer receives an extension for hearing from the Board, require that the taxpayer and assessor exchange all reports, documents and exhibits that will be presented at the hearing. The adoption of this ordinance limits review of determinations by the Board of Review to a circuit court review of the administrative record. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City's website at www.ci.oshkosh.wi.us Clerk's phone 920/236-5011. CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh. Wisconsin 54903 -1130 City of Oshkosh ( 0- QIHKOlH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: January 9, 2009 RE: Ordinance 09 -13 CREATE AN ORDINANCE TO ALLOW TAXPAYERS TO REQUEST AN EXTENSION FROM THE BOARD OF REVIEW FOR HEARING APPEALS AND TO SPECIFY THE REQUIREMENTS RELATED TO THE PRESENTATION OF EVIDENCE AT BOARD OF REVIEW PROCEEDINGS BACKGROUND 2007 Wisconsin Act 86 significantly revised the statutes governing objections to property tax assessments. Although the amendments to the statutes were available for property tax assessments beginning in 2008, the timing of the passage of Act 86 and the scheduling of the City's 2008 Board of Review proceedings prevented the City from adopting the changes for the 2008 assessments due to certain notice requirements contained within the amendments. Act 86 made certain changes that are applicable to all municipalities and in addition gave municipalities the option to enact an ordinance that would have the effect of changing other assessment procedures. The proposed ordinance would adopt those optional procedures for the City of Oshkosh beginning with the 2009 property tax assessments. ANALYSIS If the Council adopts the proposed ordinance, the ordinance would have the effect of changing the methods available to a taxpayer to challenge his /her property tax assessment. Taxpayers wishing to challenge their property tax assessments must appear before the Board of Review. This requirement would not change under the proposed ordinance. However, if the proposed ordinance is adopted, then the taxpayer is limited to a review of the Board's determination upon appeal to the circuit court. 1 co Currently, the property taxpayer who is not satisfied with the determination of the Board of Review may either appeal the Board's determination through a review procedure or wait until after the taxes are paid and file a claim for excessive assessment with the City by January 31 of the following year. If the taxpayer chooses to file a claim with the City for excessive assessment and the claim is disallowed by the council, the taxpayer may file an action in circuit court. Under this procedure, the court conducts a trial without giving consideration to the evidence presented before the Board of Review or the Board's determination of value. Under the proposed changes, the Board of Review must allow a sufficient amount of time for a hearing; witnesses may be subpoenaed to testify; and the production of records and other documents may be required prior to the Board's hearing in the matter. These procedural changes give the property owner additional assurances that his /her matter may be fully presented before the Board. After the Board makes its determination in the matter, any further litigation would consist of review of the record that had been made before the Board of Review instead of a new trial. Under the new review procedure, the court must presume that the Board's valuation is correct, unless that presumption is rebutted by a sufficient showing that the valuation is incorrect. If the presumption is rebutted, then the court would determine the assessment without deference to the Board's determination but upon the record that was presented to the Board. In some circumstances the court may consider evidence that was not available at the time of the hearing, evidence that the Board refused to consider or that the court determines should be considered to determine a correct assessment for the property. If the council adopts the proposed ordinance, there are certain new procedural changes that must also be complied with. At least 60 days before the first day on which the Board of Review hears objections, the City must publish on its internet site the last day on which a taxpayer may submit an objection to the Board of Review. This information must also be included on any notices of changed assessments at least 15 days prior to the first day on which the Board hears objections. The new procedure also provides for the taking of depositions prior to the Board of Review hearings. Under the new law, the Board may, on a showing of good cause, compel the attendance of witnesses for depositions. The new law also contains a provision whereby a taxpayer may request, and the Board must grant, a 60 -day extension for a hearing if the taxpayer submits a request for an extension along with a $100 fee. This 60 -day period may be extended if the taxpayer shows good cause why it should be further extended. If the taxpayer receives an extension under this provision, at least 10 days prior to the scheduled hearing, the taxpayer and the assessor must exchange all reports, documents, and exhibits that the taxpayer and assessor will present at the hearing before the Board. Regardless of whether the taxpayer requests an extension, the taxpayer and the assessor must present all evidence on which 2 they rely to support their valuation of the property and any other evidence that they believe is relevant to determining the correct assessment to the Board. The proposed ordinance would have potential benefits for both taxpayers and the City. Potential advantages to the proposed ordinance include that the property owners may be more prepared at the Board of Review and may have better information to allow the Board to make determinations in each case. With the availability of an extension and the greater importance of the Board's decision, the property owner may be more likely to obtain an appraisal of the property prior to the Board's hearing. There may also be less opportunity for surprises at the Board of Review, because if the property owner requests an extension, the property owner and the assessor must exchange all information that will be presented at the hearing. Both parties would then also be able to review the information presented and may reach a resolution to the matter on the basis of the information provided without the need for hearing on the matter. It is much easier to review and reasonably respond to information presented prior to the hearing itself. The proposed ordinance would also, at least arguably, benefit the City from the perspective that the claim for excessive assessment procedure has been viewed as more favorable to the taxpayer. Some cities have raised concerns that taxpayers have put forward less effort at the Board of Review in favor of litigating the case in full at the circuit court, with the assessor having already laid out his /her case in the context of the Board's hearing. In relation to this, it may be anticipated that hearings before the Board of Review may take more time, since appeals are limited to the record that is made before the Board. Adopting the proposed ordinance may have the mutual benefit of allowing for the more timely resolution of property tax cases. As noted above under the current procedure, if the taxpayer chooses not to pursue the review procedure, the taxpayer must wait until the following January to file a claim with the City and then pursue court action, assuming denial of the claim. If the taxpayer pursues the review procedure, the request for circuit court review of the Board's determination must be filed within 90 days of the Board's determination. The action is then given preference by the circuit court. In addition, unlike the claims for excessive assessment, all evidence would need to be presented to the Board, limiting the time that a court must allow for gathering of evidence, depositions and discovery prior to its hearing of the matter. Resolution of cases more quickly would benefit the City by limiting the amount of interest that will accrue, should the Board's determination be overruled. A more timely resolution of these cases would also appear to benefit the taxpayers as they would receive an earlier final determination of their tax obligation. 3 FISCAL IMPACT From a cost perspective, the City Assessor's office has not typically utilized outside counsel for the preparation of cases and presentation of matters to the Board of Review, although we have hired outside counsel on an as needed basis if there were particular issues of concern. If the proposed ordinance were adopted, it is reasonable to anticipate that taxpayers may wish to present a more complete record before the Board and may rely more heavily upon attorneys and experts in those proceedings. It may, therefore, be advisable for the assessor's office to also have representation available in the preparation and /or presentation of at least some cases before the Board. Under the City's current insurance policy, appeals from the Board's determinations are currently covered for defense costs up to a limit of $50,000 regardless of the method that the taxpayer chooses to pursue. The cost of experts and attorneys for appearances before the Board of Review would not be a covered expense under the city's insurance policies. RECOMMENDATION It is recommended that the Council approve the proposed ordinance adopting the optional ordinance for Board of Review proceedings. Resvectfully Sub itted, L'yrxn . Lorens City Attorney Approved: Mark A. Rohloff City Manager in