A Waukesha County judge has struck down fire and EMS charges levied by the villages of Dousman and Pewaukee, ruling they are both invalid special charges and unlawful property taxes, and permanently barring the villages from collecting them.
Circuit Judge Zachary Wittchow issued the decision Sept. 4 in Hawthorne Place LLC v. Village of Dousman, granting summary judgment to a group of property owners represented by the WMC Litigation Center, the legal arm of Wisconsin Manufacturers & Commerce. The suit was filed in 2024.
After last week’s decisions, Scott Manley, WMC Executive VP of Government Relations, stated: “This case was about protecting taxpayers from unlawful taxation schemes, and the ruling sends a clear message that the government must follow the law when seeking additional revenue.”
The Village of Dousman first asked voters in August 2022 for permission to exceed state levy limits to fund fire protection. The referendum failed. The village then enacted Ordinance 419, billing every parcel in the village, including undeveloped land, using a formula built on acreage and building square footage. The Village of Pewaukee weighed a referendum too, but council members raised concerns it might fail, and adopted Chapter 93 instead, charging developed properties through an “Emergency Service Equivalents” formula printed on annual tax bills.
State law lets municipalities impose special charges “for current services rendered,” and Wittchow, leaning on a 1989 appeals court decision, held that phrase means services actually performed, not services standing by. Since the fee was assessed regardless of use of fire and EMS services, Wittchow held the special charges were illegal. The two villages had built “village-wide funding formulas,” he wrote, spreading costs across the tax roll without tying any charge to service delivered.
He went further, finding the charges were also property taxes regardless of the label. Fire protection is a governmental function benefiting the whole community, including visitors who pay nothing. “The purpose, and not the name it is given, determines whether a government charge constitutes a tax,” the ruling notes, quoting prior case law. This ruling comes as property taxes continue to rise, largely in part because of Governor Evers’ 400-year property tax hike.
Records in the case show the charges reached tens of thousands of dollars annually for some commercial properties, and applied even to tax-exempt parcels. Several other Wisconsin municipalities have adopted or considered similar structures.
