Does a city or village have authority to charge property owners a fee for the cost of providing fire department services to their property and extend the fee onto the tax roll if not paid?

Unlike towns (see sec. 60.55(2)(b), Stats.), cities and villages do not have express authority to charge property owners a fee for the cost of fire protection services provided for their property. However, also unlike towns, Wisconsin cities and villages have broad statutory home rule powers. Statutory home rule (see Wis. Stat.  secs. 61.34(1) and 62.11(5)) gives city and village governing bodies broad authority to, among other things, manage and control municipal property, finances “and the public service,” and to “act for the government and good order of the [municipality], for its commercial benefit and for the health, safety, welfare and convenience of the public.” The statutes allow the governing body to carry its powers into effect by taxation, special assessment “and other necessary or convenient means.” Moreover, the statute states that these powers are in addition to all other grants and can be limited only by express language.  A Wisconsin Supreme Court decision following the grant of statutory home rule interpreted sec. 62.11(5), Stats., as granting cities “all the powers the legislature could by any possibility confer upon it.” Hack v. City of Mineral Point, 203 Wis. 215, 233 N.W. 82 (1931).

Nothing in the statutes prohibits cities and villages from charging property owners a fee for the cost of providing fire department services to their property. In addition, an ordinance imposing a fee on property owners for the cost of fire department services provided to their property would not logically conflict with or defeat the purpose of any state law. From this we can reasonably conclude that the state has not preempted municipalities from adopting such an ordinance. See Anchor Savings and Loan Assn. v. Madison Equal Opportunities Commission, 120 Wis.2d 391, 355 N.W.2d 234 (1984).  In our opinion, therefore, cities and villages may rely on their broad statutory home rule  powers  to adopt an ordinance imposing a fee on property owners for the cost of fire department services, which they have received.

Section 66.0627(2), Stats., authorizes municipalities to impose special charges against real property for current services provided to it. Although fire fighting is not one of the current services expressly listed in the definition of “service” set forth in sec. 66.0627(1), Stats., the list is not exclusive and fire fighting is certainly a public service to real property. In our opinion, therefore, a city or village may also rely on sec. 66.0627(2), Stats., to impose a special charge on a property for the cost of providing fire department services to that property. Under sec. 66.0627(4), Stats., any such charge not paid by the time fixed by the governing body, becomes a lien as of the date of delinquency and is automatically extended upon the tax roll as a delinquent tax against the property and all proceedings in relation to the collection of delinquent real estate taxes apply to such a special charge.

It should be noted that prior League opinions (see Fire Protection #175, #182, #183, and #190) advise municipalities against charging property owners a fee for the cost of fire department services provided to their property. The rationale offered in the opinions is that fire protection in cities and villages is a general government service that benefits the entire community and the cost of that service should therefore be borne by all taxpayers. The opinions suggest that when a fire department extinguishes a fire it benefits not only the owner of the property, but also the community as a whole because the fire is prevented from spreading to other properties and doing further damage. In towns, most development is not as dense as is found in villages and cities and the benefits of fire suppression are more particular to each property since the risk of fire spreading to other properties is significantly lower.

Consequently, the older opinions suggest that it may be more appropriate to impose the cost of fire services on each property owner in a town when the service is provided. These are of course policy, not legal, reasons for not charging property owners a fee for fire protection services. If the basic question is whether a city or village has the authority to impose such a fee, it is the League’s opinion that they do.

There is another important policy consideration for establishing a fire protection fee. The state legislature now requires a negative adjustment to the property tax levy for fee revenues used to pay for a “covered service” such as fire protection if the service was funded in 2013 by property tax revenues. Wis. Stat. sec. 66.0602(2m)(b). So, switching to fee revenues to pay for a “covered service” will not free up property tax revenues for other purposes.

(rev. 3/17)