A conservative law firm is suing the Town of Buchanan for an 'unlawful tax' approved by voters in 2019
Roshaun Higgins
APPLETON - The Wisconsin Institute for Law & Liberty is suing the Town of Buchanan for adopting and implementing a voter-approved transportation utility fee that it claims is "an unlawful tax."
The conservative law firm, known for high-profile legal victories including overturning the statewide mask mandate, filed the lawsuit Thursday in Outagamie County Court on behalf of Wisconsin Property Taxpayers Inc. The suit alleges the town's transportation utility fee is an illegal tax that violates state levy limits and the uniformity clause of the Wisconsin Constitution.
WILL is asking the court to declare Buchanan’s transportation utility fee illegal and issue an injunction to prevent it from levying, enforcing or collecting the fee.
Since Buchanan voters approved the transportation utility fee in 2019, the additional money collected caused the town to exceed its property tax levy limit of $2.4 million in 2020.
Homeowners now pay $315 annually and businesses and other properties pay between $200 and $8,000 annually, per the fee. WILL claims the town is on track to collect $850,000 from residents through the transportation utility fee this year.
The Town of Buchanan did not respond immediately to a request by The Post-Crescent for an interview.
“The fee adopted by the Town of Buchanan is an unlawful tax intended to circumvent levy limits and uniformity requirements," WILL Deputy Counsel Luke Berg said in a statement. "Wisconsin municipalities cannot charge a fee, or implement a tax, without statutory authorization.”
In 2019, more than half of Buchanan voters approved the transportation utility fee over special assessments or a property tax increase to fund street improvement projects.
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The town first considered instituting the fee in 2018, when it deemed road drainage as the most significant issue facing the town. According to a town newsletter, resident complaints concerning road drainage increased by more than four times from 2014 to 2018.
According to information about the fee on the town's website, the town thought the fee would make costs more equitable among property owners since an increase in property taxes wouldn't charge property owners that are tax-exempt. It compared the fee to a water or sewer utility fee, saying that, like other public utilities, the transportation utility fee charges the users of the utility to cover its operating costs.
WILL disagrees, claiming this state statute allows for public utility fees to be charged for "heat, light, water or power." It claims the difference between roads and a public utility like water is too great for a fee for road improvements to be considered legal.
Without the transportation utility fee, the town would have to pass a referendum to increase its property tax levy, rework its budget to add money for street improvement projects or use special assessments for them.
Other Fox Cities communities have fees or special taxes to help pay for street projects. In Appleton, residents are charged $20 for a wheel tax. In Neenah, the city's transportation fee charges homeowners $23 annually.
The law group filed a notice of claim against the town in May and threatened legal action by Sept. 1. The town denied the notice of claim in late August, prompting WILL to file the case Thursday in court.
Contact Roshaun Higgins at 920-205-1154 or rhiggins@gannett.com. Follow him on Twitter at @row_yr_boat.