Wisconsin Legislature: oag1-15

¶ 1. You ask for an opinion about whether a town can assess a fire protection special charge in the absence of an actual fire call, and whether it can assess a special charge against a county, a tax-exempt entity.

¶ 2. I conclude that, pursuant to Wis. Stat. § 60.55(2)(b), a town may assess a fire protection special charge for making fire protection services generally available, and not based on the incidence of fire calls at a property. I further conclude that the special charge is a fee, not a tax. Its primary purpose is to recover costs for fire protection services, supervision or regulation, not to obtain general revenue for the government. Therefore, the special charge may be assessed against the county. I decline to answer your third question concerning the purpose for which the town may use the special charge funds because you have provided no facts to indicate that the town is using these funds for an improper purpose.

¶ 3. You explain that a town in Clark County has adopted an ordinance that charges all real property within the town a fire protection special charge using a fee schedule based on the size and type of property (called a domestic user equivalent). The ordinance was adopted pursuant to Wis. Stat. §§ 60.55, 66.0301, and 66.0627 to provide funding for fire protection within the town. The annual charge varies depending on the town’s annual obligation to the fire commission. The ordinance also indicates that delinquent special charges will became a lien on the real property. The fire commission charges a fire call fee in addition to the fire protection special charge. You note that Clark County has received bills for fire protection pursuant to the ordinance.

¶ 4. The ordinance at issue was adopted, in part, pursuant to Wis. Stat.
§ 60.55(2)(b), which allows a town to fund fire protection by charging all property owners a fee:

The town board may:

….

(b) Charge property owners a fee for the cost of fire protection provided to their property under sub. (1)(a) according to a written schedule established by the town board.

Wis. Stat. § 60.55(2)(b). The cross reference to subsection (1)(a) refers to the town board’s authority to “provide for fire protection for the town.” You ask if this provision allows a town to assess a special charge against a property owner if it makes no fire call to that property. I conclude that it does.

¶ 5. Statutory interpretation begins with the text of the statute, and if the meaning of the text is clear, the inquiry generally ends there. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. Because the phrase “fire protection” is not defined in the statute, we accord the phrase its common, ordinary and accepted meaning by consulting a dictionary. See Xcel Energy Servs., Inc. v. Labor & Indus. Review Comm’n, 2013 WI 64, ¶ 30, 349 Wis. 2d 234, 833 N.W.2d 665 (determining ordinary meaning of undefined words, appropriate to consult dictionary to aid in statutory construction). Statutory language should be read “to give reasonable effect to every word, in order to avoid surplusage.” See Kalal, 271 Wis. 2d 633, ¶ 46.

¶ 6. “Protection” is defined as “the act of protecting,” “the state or fact of being protected,” and “shelter from danger or harm.” Webster’s Third New International Dictionary 1822 (1986). The legislature’s use of the term “protection” in the statute suggests that it was contemplating the assessment of fees for general fire safety rather than for individual fire calls actually made.

¶ 7. The mechanism created by the legislature to assess each property owner’s charge confirms that a town may charge for fire protection services regardless of whether a fire call is made. The statute provides for fire protection “according to a written schedule established by the town board.” Wis. Stat.
§ 60.55(2)(b). A “written schedule” contemplates a list of graduated fees, as opposed to a per-use fee. See Webster’s Third New International Dictionary 2028 (1986) (defining “schedule” as a “list”). Here, the town’s fee schedule is based on the size and type of real property. If the statute were intended to allow a charge only for fire calls actually made, the town would not have an ability to calculate the charges based on “a written schedule.” The “written schedule” language would be superfluous.

¶ 8. This interpretation of the statutory language is consistent with the statutory history. The current language of Wis. Stat. § 60.55(2)(b) was created by 1987 Wis. Act 399, made effective May 17, 1988. 1987 Wis. Act 399, § 200j. Before that time, section 60.55(2)(b) allowed a town to fund fire protection by charging property owners a “fee for the cost of fire calls made to their property.” Wis. Stat.
§ 60.55(2)(b) (1985-86).

¶ 9. In Town of Janesville v. Rock County, 153 Wis. 2d 538, 451 N.W.2d 436 (Ct. App. 1989), a town sought to collect fire protection charges from a county under the previous version of Wis. Stat. § 60.55(2)(b) (1985-86). The Town of Janesville argued that the statute authorized it to collect fees based on property owned, regardless of fire calls made. By the time the case reached the appellate court, the new statute had been passed. Although the new statute did not apply to the charges at issue, the Town argued that it was merely a clarification of the old law. Id. at 541 n.2.

¶ 10. The court concluded that the former version of Wis. Stat. § 60.55(2)(b) permitted the town to charge the county only for fire calls made. In so concluding, the court rejected the notion that the “fire protection” language in the new statute was merely a clarification of the old “fire calls made.” The court indicated that the new provision removed the limitation to charge only for fire calls actually made: “The present language regarding a schedule of fees and the removal of the ‘per call’ limitation are substantive changes with no retroactive effect.” Id. Town of Janesville supports the conclusion that, when the legislature changed the law, it intended to permit a town to assess a fee for the costs of fire protection services generally, even if no fire calls have been made to that property.

¶ 11. The statute’s legislative history confirms that plain-meaning interpretation. See Kalal, 271 Wis. 2d 633, ¶ 51 (legislative history may be consulted to confirm a plain-meaning interpretation). I have reviewed the drafting records for the relevant statutory change. The analysis by the Legislative Reference Bureau, which is included in the drafting records, reads in relevant part:

Under current law, towns may charge property owners a fee for fire calls made to their property. This bill authorizes towns to charge property owners a fee for fire protection provided to their property.

Analysis by the Legislative Reference Bureau, LRB-2980/1, LRB Drafting File to 1987 Wis. Act 399. This analysis emphasizes that the new statute is more than just a clarification of the old statute. The analysis treats the term “fire protection” as permitting charges related to the costs of fire protection as distinct from the cost of a fire call at a particular property.