2014 WI 9
SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP3015
COMPLETE TITLE: Frank J. Sausen,
Petitioner-Appellant-Petitioner,
v.
Town of Black Creek Board of Review,
Respondent-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(No cite)
OPINION FILED: February 19, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 4, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Michael W. Gage
JUSTICES:
CONCURRED: PROSSER, J., concurs. (Opinion filed.)
ROGGENSACK, J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-appellant-petitioner, there were briefs
by R. George Burnett, T. Wickham Schmidt, and Conway, Olejniczak
& Jerry, S.C., Green Bay, and oral argument by R. George
Burnett.
For the respondent-respondent, there was a brief by Michael
C. Menghini and Herrling Clark Law Firm Ltd., Appleton, and oral
argument by Michael C. Menghini.
2014 WI 9
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP3015
(L.C. No. 2010CV396)
STATE OF WISCONSIN : IN SUPREME COURT
Frank J. Sausen,
Petitioner-Appellant-Petitioner,
FILED
v.
FEB 19, 2014
Town of Black Creek Board of Review,
Diane M. Fremgen
Respondent-Respondent. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, C.J. This is a review of an
unpublished decision of the court of appeals affirming an order
of the circuit court for Outagamie County, Michael W. Gage,
Judge.1 In a certiorari review, the circuit court affirmed the
Town of Black Creek Board of Review's assessment of taxpayer
Frank J. Sausen's real property for purposes of real estate
1
Sausen v. Town of Black Creek Bd. of Review, No.
2010AP3015, unpublished slip op. (Wis. Ct. App. Nov. 6, 2012).
No. 2010AP3015
taxation.2 The court of appeals summarily affirmed the order of
the circuit court. We affirm the decision of the court of
appeals.
¶2 The issue presented is whether the town board of
review erred in refusing to lower the assessment of the
taxpayer's real property. The town assessor valued the property
at $27,500, classified the property as "productive forest land,"
and assessed the property at $27,500. The taxpayer does not
challenge the assessor's valuation of the property. The
taxpayer challenges the assessment on the ground that the
assessor's classification of the property is erroneous.
¶3 The assessor's classification of the property directly
affects the assessment in the present case: Property classified
as "productive forest land" under Wis. Stat. § 70.32(2)(a) and
(c)2. (2011-12)3 is assessed at full value; property classified
as "undeveloped land" is assessed at 50 percent of its full
value.4 The taxpayer claims that the board should change the
2
Wis. Stat. § 70.47(13) ("Except as provided in this
subsection and in ss. 70.85 and 74.37, appeal from the
determination of the board of review shall be by an action for
certiorari . . . .").
3
All subsequent references to the Wisconsin Statutes are to
the 2011-2012 version unless otherwise noted.
4
Wis. Stat. § 70.32(4) ("[U]ndeveloped land shall be
assessed at 50% of its full value . . . .").
The Wisconsin Property Assessment Manual at 12-2 (rev. eff.
1/09) advises: "After determining the full value of the
'Undeveloped land' in accordance with sec. 70.32(1), state case
law, and professionally accepted appraisal practices, the value
is reduced by 50% under sec. 70.32(4)."
2
No. 2010AP3015
classification of the property to "undeveloped land" under Wis.
Stat. § 70.32(2)(c)4. and that the property, properly classified
as undeveloped land, should be assessed at $13,750, that is, at
50 percent of the full value of $27,500.
¶4 The taxpayer in the present case appeals a
determination of the board of review under Wis. Stat.
§ 70.47(13), which provides that an "appeal from the
determination of the board of review shall be for an action for
certiorari . . . ."5 Accordingly, this court's review of the
The Manual is relevant to our discussion because the
legislature has instructed that the Manual sets forth
"guidelines" and is published by the Department of Revenue to
"discuss and illustrate accepted assessment methods, techniques
and practices with a view to more nearly uniform and more
consistent assessments of property at the local level." Wis.
Stat. § 73.03(2a).
The Manual is cited for its persuasive value; it cannot
supersede the statute.
5
A taxpayer may challenge an assessment under other
statutes.
Section 70.85 allows a taxpayer to challenge an assessment
by filing with the Department of Revenue. "Appeal of a
determination of the department of revenue shall be by an action
for certiorari in the circuit court . . . ." Wis. Stat.
§ 70.85(4)(c).
Section 74.37 governs a taxpayer's claim in court to
recover a general property tax imposed because the assessment of
property was excessive. The court proceeding is not a
certiorari review; it is a de novo proceeding. In a Wis. Stat.
§ 74.37 court proceeding, "the assessor's assessment is presumed
correct if the challenging party does not present significant
contrary evidence." Bloomer Housing Ltd. P'ship v. City of
Bloomer, 2002 WI App 252, ¶11, 257 Wis. 2d 883, 653 N.W.2d 309.
3
No. 2010AP3015
board's determination of the assessment and classification of
the property is by certiorari review.
¶5 In certiorari review, this court reviews a decision of
the board of review under Wis. Stat. § 70.47(13), not the
decisions of the circuit court or court of appeals. This court
reviews a decision of the board of review in the same manner as
the circuit court and court of appeals, benefiting from their
analyses. Waste Mgmt. of Wis., Inc. v. Kenosha Cty. Bd. of
Review, 184 Wis. 2d 541, 554, 516 N.W.2d 695 (1994).
¶6 In a certiorari review, the court is confined to
determining whether the board's actions were:
(1) within its jurisdiction;
(2) according to law;
(3) arbitrary, oppressive, or unreasonable and represented
its will and not its judgment; and
(4) supported by evidence such that the board might
reasonably make the order or determination in
question.6
¶7 The taxpayer's argument in the present case centers on
the fourth element of certiorari review, namely that the board's
determination to adopt the assessor's classification of the
property is not supported by evidence such that the board might
reasonably make the determination in question.
6
State ex rel. Stupar River LLC v. Town of Linwood Portage
Cnty. Bd. of Review, 2011 WI 82, ¶16, 336 Wis. 2d 562, 800
N.W.2d 468.
4
No. 2010AP3015
¶8 The taxpayer argues that he does not have the burden
to prove the classification and by extension, the assessment,
erroneous; that the board, the circuit court, and the court of
appeals imposed that burden of proof on him, erroneously
according a presumption of correctness to the assessor's
classification of the property; and that the board erroneously
concluded that the taxpayer did not carry his burden at the
board hearing. The taxpayer asks the court to remand the matter
to the board so that it can determine the correct assessment
without imposing on the taxpayer the burden of proving the
classification erroneous.
¶9 The statutes do not state whether the taxpayer
challenging an assessment (or classification) has the burden of
proving at the board hearing that the assessment (or
classification) is incorrect.
¶10 Upon considering the general rule of law regarding
burden of proof, the statutes, and the case law, we conclude
that the taxpayer challenging an assessment and classification
has the burden of proving at the board hearing that the
assessment and classification of property are erroneous; that
the taxpayer did not meet his burden of proof; and that the
board's determination to maintain the assessment is supported by
a reasonable view of the evidence. We therefore affirm the
decision of the court of appeals.
¶11 The following facts are not in dispute for purposes of
this review. Frank Sausen, the taxpayer, owned a 10-acre plot
5
No. 2010AP3015
of property at W5930 County Road A, parcel number 010064400, in
the Town of Black Creek, Outagamie County, Wisconsin. He used
the property for occasional hunting. The property has not been
used to produce commercial forest products.
¶12 In early November 2009, the taxpayer was notified that
the assessment of his property had increased from $11,000 in
2008 to $27,500 in 2009. The increase in assessment in 2009
resulted from an increase in the assessor's valuation of the
property, not a change in classification.7
¶13 Pursuant to Wis. Stat. § 70.32, the 2009 assessment
roll included the assessor's valuation of the property at
$27,500 as well as the assessor's classification of the property
as "low grade woods."
¶14 According to the Wisconsin Property Assessment Manual,
"low grade woods" is a permissible subset of "productive forest
land."8 "Productive forest land" is defined in Wis. Stat.
7
The assessment notice sent to the taxpayer states that the
"reason for change" was "[i]ncrease due to revaluation." Town
of Black Creek Board of Review, Notice of Assessment——Frank
Sausen, W5930 County Rd A, Black Creek WI 54106 (Nov. 4, 2009).
Additionally, the prior assessment of $11,000 is congruent with
the prior Town of Black Creek Land Values, which valued low-
grade forest at $1,100 per acre. The 2009 Town of Black Creek
Land Values valued low-grade forest at $2,750 per acre.
8
Within the classification of "productive forest land," as
provided by Wis. Stat. § 70.32(2)(c)2., the Wisconsin Property
Assessment Manual advises assessors to further create
subclassifications of productive forest land based on the
species, size, volume, and stocking density of trees on the
property. See 1 Wisconsin Property Assessment Manual at 12-3 to
12-10 (rev. eff. 1/09).
6
No. 2010AP3015
§ 70.32(2)(c)2. as "land that is producing or is capable of
producing commercial forest products and is not otherwise
classified under this subsection."9
¶15 Before we examine the issues of burden of proof and
the presumption of the correctness of the assessor's
classification of the property, we describe the statutory
methodology for creating an assessment for real estate taxation.
Wisconsin Stat. § 70.32 establishes a three-part methodology for
creating an assessment: First, an assessor assigns the property
a "valuation"——a value of the property to be assessed based on
the statutory requirements in Wis. Stat. § 70.32 and the
Wisconsin Property Assessment Manual.10 The Wisconsin Property
Assessment Manual at 7-7 through 7-8 explains that the
legislature has established value standards for different
classes of properties. Value may thus be affected by the
classification of the property.11
9
The Wisconsin Property Assessment Manual notes that
"[f]orested areas primarily held for hunting, trapping, or in
the operation of game preserves, should be classified as forest
unless clearly operated as commercial enterprise or exempt." 1
Wisconsin Property Assessment Manual, 5-45 (rev. eff. 1/09).
10
"Real property shall be valued by the assessor in the
manner specified in the Wisconsin property assessment manual
provided under s. 73.03(2a) . . . ." Wis. Stat. § 70.32(1).
11
For example, the value standard for agricultural land is
use value. 1 Wisconsin Property Assessment Manual 7-6 to 7-7
(rev. eff. 1/09).
7
No. 2010AP3015
¶16 Second, "the assessor, having fixed a value,"
"segregates" the property into a "class" under the statutes.12
The legislature has established eight classes: residential,
commercial, manufacturing, agricultural, undeveloped,
agricultural forest, productive forest land, and other. See
Wis. Stat. § 70.32(2).
¶17 Third, certain classes, notably agricultural forest
land and undeveloped land, are assessed at a percentage of full
value. Undeveloped land "shall be assessed at 50% of its full
value," with the value determined as set forth in the first step
described above. See Wis. Stat. § 70.32(4).
¶18 This case involves a challenge to an assessment, based
on a challenge to classification. Although Wis. Stat. § 70.32
sets forth a methodology for determining an assessment and uses
the word "assessment" often, the word is not defined. The words
"assessment" and "assessed value" are set forth in the glossary
of terminology in the Wisconsin Property Assessment Manual to
mean "a dollar amount assigned to the taxable property . . . by
the assessor for the purpose of taxation." The Manual states
that "the levy is applied directly against it [the assessment]
to determine the tax due."13
¶19 We begin our discussion of whether the taxpayer has
the burden of proof regarding the classification of property by
12
Wis. Stat. § 70.32(2)(a).
13
1 Wisconsin Property Assessment Manual G-1 (rev. eff.
1/09).
8
No. 2010AP3015
enunciating the general rule of law that "a party seeking
judicial process to advance his position carries the burden of
proof."14 A board of review is a quasi-judicial body to which
this general rule governing burden of proof applies.15 Applying
this rule to the present case means the taxpayer has the burden
of proof.
¶20 The taxpayer argues that this general rule governing
the burden of proof does not apply to him because the statute is
silent about the burden of proof and the statutes accord a
presumption of correctness only to the assessor's valuation, not
to the assessor's classification or assessment. The taxpayer
recognizes, as we do, that the concepts of burden of proof and
presumption of correctness are intertwined. "The concept of a
'presumption' is very familiar in the law, and it is closely
related to the concept of a 'burden.'" Ottman v. Town of
Primrose, 2011 WI 18, ¶50, 332 Wis. 2d 3, 796 N.W.2d 411.
¶21 Although our initial impression is that the general
rule assigning the challenging party the burden of proof applies
in the present case, we examine the statutes and the case law to
inform us further.
14
Loeb v. Bd. of Regents, 29 Wis. 2d 159, 164, 138
N.W.2d 227 (1965).
15
"A Board of Review is a quasi-judicial body that hears
evidence to adduce whether an assessor's valuation is correct."
Metro. Assocs. v. City of Milwaukee, 2011 WI 20, ¶7, 332
Wis. 2d 85, 796 N.W.2d 717 (2011) (citing Nankin v. Vill. of
Shorewood, 2001 WI 92, ¶18, 245 Wis. 2d 86, 630 N.W.2d 141).
9
No. 2010AP3015
¶22 Support for applying this general rule allocating the
burden of proof to the taxpayer challenger is found in Wis.
Stat. § 70.47(7). The statute places a burden on a taxpayer who
objects to a valuation to present evidence to the board in
support of the objection. This provision adopts the general
rule placing the burden of proof on the taxpayer to put on an
affirmative case in his or her favor before the board:
Wis. Stat. § 70.47(7)(a) Objections to
valuations. . . . No person shall be allowed in any
action or proceedings to question the amount16 or
valuation of property unless such written objection
has been filed and such person in good faith presented
evidence to such board in support of such objections
and made full disclosure before said board, under oath
of all of that person's property liable to assessment
in such district and the value thereof (footnote
added).
¶23 We acknowledge that the title of Wis. Stat.
§ 70.47(7)(a) is "Objections to valuations" and that (7)(a)
addresses a taxpayer's objection to a valuation. Nevertheless,
several subsections of § 70.47(7) refer to and govern challenges
to assessments. It is apparent from reading § 70.47(7) in its
entirety that the words "valuation" and "assessment" are being
used interchangeably in several instances.
¶24 Section 70.47 is a long statute with many subsections.
The section is entitled "Board of review proceedings" and
addresses board proceedings that involve both objections to the
16
The word "amount" has been interpreted to refer to the
amount of property, that is, part or all of the property. Clear
Channel Outdoor, Inc. v. City of Milwaukee, 2011 WI App 117, ¶8,
336 Wis. 2d 707, 805 N.W.2d 582.
10
No. 2010AP3015
valuation and objections to the assessment. Nothing in
§ 70.47(7) specifically addresses a board's proceedings when an
objection is made to a classification of property. Because an
assessment involves a classification as well as a valuation, it
makes sense to treat § 70.47(7) as governing a board's
proceedings regarding challenges to the valuation,
classification, or assessment unless the substance of a
provision requires a different approach. There is no apparent
reason to treat the taxpayer's burden of proof in a challenge to
classification differently from the taxpayer's burden of proof
in a challenge to a valuation or an assessment.
¶25 Furthermore, Wis. Stat. § 70.47(8) governing a hearing
before the board "in relation to the assessment" informs our
decision about the taxpayer's burden of proof on the issue of
classification. Section 70.47(8)(b) provides that the taxpayer
shall be heard first at the board hearing. The party with the
burden of proof ordinarily presents first. Because an
assessment is based on the classification, this provision in
§ 70.47(8) applying to a challenge to an assessment should be
read to apply to an objection to a classification.
¶26 In addition, § 70.47(8)(i) explicitly provides that a
board shall presume that the assessor's valuation is correct but
that the presumption may be rebutted by a sufficient showing by
the objector that the valuation is incorrect. Again the
statutory language is limited to valuations and is silent about
a presumption of correctness regarding the assessor's
11
No. 2010AP3015
classification: "The board shall presume that the assessor's
valuation is correct. That presumption may be rebutted by a
sufficient showing by the objector that the valuation is
incorrect." Wis. Stat. § 70.47(8)(i).
¶27 This presumption language was added to Wis. Stat.
§ 70.47(8)(i) in 1997.17 Although the presumption language in
Wis. Stat. § 70.47(8)(i) limits the presumption of correctness
to the assessor's valuation, we must read § 70.47(8)(i) in the
context of the contemporaneous amendment adding § 70.47(8)(h)
requiring the assessor to "provide to the board specific
information about the validity of the valuation . . . and
information that the assessor used to determine that valuation."
The presumption in § 70.47(8)(i) reinforces the burden of proof
imposed in § 70.47(7) on the taxpayer who objects to valuation
to show at the board hearing that the valuation is erroneous.
Even though the assessor must provide specific information to
the board regarding the valuation, the burden of proof to show
error in the assessor's valuation remains on the taxpayer.
¶28 Our interpretation of Wis. Stat. § 70.47(7) and (8) to
support imposing the burden of proof on the taxpayer challenging
the assessment or classification at the board is reinforced by
§ 70.47(9), which directs the board how and when to correct an
assessment. Section 70.47(9) provides that a board shall raise
or lower an assessment "if the assessment is too high or too
low" and "shall state on the record the correct assessment and
17
1997 Wis. Act 237, § 279m.
12
No. 2010AP3015
that that assessment is reasonable in light of all the relevant
evidence the board received." Wis. Stat. § 70.47(9)(a).
¶29 Although Wis. Stat. § 70.47(9)(a) is silent about
whether the taxpayer has the burden of proof in challenging the
correctness of the classification, Wis. Stat. § 70.47(9)(a)
explicitly states that if the vote at the board is a tie vote on
the objection to the assessment, the assessment will be
sustained. The legislature has thus declared that if the party
who seeks to raise or lower the assessment fails to persuade a
majority of the board that the assessment is incorrect, that
party loses. In this way, § 70.47(9)(a) makes it absolutely
clear that the burden of persuasion is on the taxpayer to show
that an assessor's assessment is erroneous. Because an
assessment depends on a valuation and a classification, it makes
sense to apply the same burden of proof to a taxpayer's
challenge to a classification as is applied to a taxpayer's
challenge to an assessment.
¶30 Finally, our position is supported by Wis. Stat.
§ 74.37. Under this statute, when a taxpayer uses this
procedure in circuit court to challenge an assessment as
excessive, the circuit court reviews the board's determination
de novo, giving "no deference to the Board of Review's
decision."18 Nevertheless, "the underlying assessment still
18
Metro. Assocs. v. City of Milwaukee, 2011 WI 20, ¶10, 332
Wis. 2d 85, 796 N.W.2d 717.
13
No. 2010AP3015
carries a presumption of correctness."19 When the legislature
provides that an underlying assessment carries a presumption of
correctness when the board's determination is reviewed de novo
by a court, it seems logical to infer that when a more limited
certiorari judicial review of a board's determination takes
place, the burden is on the taxpayer to prove that an assessor's
assessment is erroneous.
¶31 The historical understanding of earlier, similar
versions of the statutes bolsters our interpretation of the
present statutes as placing the burden of proof on the taxpayer
to prove that the assessor's classification is erroneous.
¶32 As far back as 1883, the court declared that under the
statutes then in effect a person objecting to an assessment had
to take the initiative and produce testimony showing that the
assessment was too high. See Shove v. City of Manitowoc, 57
Wis. 5, 7, 8, 14 N.W. 829 (1883). Furthermore, the court noted
that the statute provided that a board of review was authorized
to increase or lessen the assessment "only upon being 'satisfied
from the evidence taken' that it is too high or too low."
Shove, 57 Wis. at 8. The Shove court concluded that the statute
was enacted to prevent the board from arbitrarily increasing or
decreasing an assessment "without evidence or testimony and
merely to satisfy their own notions of justice or some opinions
based, perchance, upon some casual statement made by some
citizen in good faith or otherwise." Shove, 57 Wis. at 8.
19
Id. (citing Wis. Stat. § 70.49(2)).
14
No. 2010AP3015
¶33 The Shove case has since been cited for the
proposition that, absent sufficient evidence, a board cannot
change an assessment.
¶34 State ex rel. Giroux v. Lien, 108 Wis. 316, 317-18, 84
N.W. 422 (1900), cited Shove as supporting the proposition that
an assessor's valuation stands before the board as prima facie
correct and declared that "the assessment needs no support by
evidence in the first instance, but must stand, unless shown to
be incorrect by reasonably direct and unambiguous evidence"
(emphasis added).
¶35 Subsequently, State ex rel. Foster v. Williams, 123
Wis. 73, 75, 100 N.W. 1052 (1904), cited Giroux for the
proposition that an objecting taxpayer "had no right to have
[the true assessment] reduced, except upon evidence reasonably
tending to show that it was excessive . . . ."20
¶36 The court has stated that a landowner must overcome
"the prima facie presumption in favor of the original
assessment." State ex rel. Vilas v. Wharton, 117 Wis. 558, 562,
94 N.W. 359 (1903) (emphasis added). In State ex rel. Kimberly-
Clark Co. v. Williams, 160 Wis. 648, 651, 152 N.W. 450 (1915),
the court declared that "[t]he assessment of the relator's
20
Shove v. City of Manitowoc, 57 Wis. 5, 14 N.W. 829
(1883), and State ex rel. Foster v. Williams, 123 Wis. 73, 75,
100 N.W. 105 (1904), involved a tax on personal property, but
the principles stated therein are applicable to taxation of real
property. Fond du Lac Water Co. v. City of Fond du Lac, 82 Wis.
322, 52 N.W. 439 (1892) (holding that, both as to real and
personal property, a board of review cannot arbitrarily increase
the valuation of the assessor without proof being furnished).
15
No. 2010AP3015
property made by the assessor was prima facie correct and was
binding on the board of review in the absence of evidence
showing it to be incorrect" (emphasis added). The court has
also noted that "it is . . . the law that the assessment made by
the local assessor is prima facie correct." Peninsular Power
Co. v. Wisconsin Tax Comm'n, 195 Wis. 231, 234, 218 N.W. 371
(1928).
¶37 Thus, on the basis of the general principle regarding
which party has the burden of proof; the text of Wis. Stat.
§§ 70.47(7)(a), 70.47(8)(i), 70.47(9), and 74.32; and the case
law, we conclude that a taxpayer who objects to an assessment on
the basis of the classification of the property has the burden
of proving that the classification is erroneous.
¶38 We now examine the record before the board to
determine whether the board erred in refusing to reduce the
assessment. In reviewing a determination of a board of review,
"[t]he presumptions are all in favor of the rightful action of
the board." Darcel v. Manitowoc Bd. Of Review, 137 Wis. 2d 623,
626, 405 N.W.2d 344 (1987) (quoting State ex rel. Boostrom v.
Bd. of Review, 42 Wis. 2d 149, 155, 166 N.W.2d 184 (1969)).21
21
In reviewing a municipality's decision on certiorari,
Wisconsin courts have repeatedly stated that there is a
presumption of correctness and validity to a municipality's
decision. Nowell v. City of Wausau, 2013 WI 88, ¶24, 351
Wis. 2d 1, 838 N.W.2d 852.
The person challenging the municipality's decision, here
the taxpayer, bears the burden to overcome the presumption of
correctness of the board's decision. Ottman v. Town of
Primrose, 2011 WI 18, ¶50, 332 Wis. 2d 3, 796 N.W.2d 411.
16
No. 2010AP3015
¶39 To support his argument that the board erred in
refusing to reduce the assessment and his contention that the
classification of the property should be changed from
"productive forest land" to "undeveloped land," the taxpayer
produced and relied on two maps: one issued by the Wisconsin
Department of Natural Resources (DNR) and the other issued by
the United States Department of the Interior Geological Survey.
"Undeveloped land" is defined by Wis. Stat. § 70.32(2)(c)4. as
"bog, marsh, lowland brush, uncultivated land zoned as
shoreland . . . or other nonproductive lands not otherwise
classified under this section."
¶40 The DNR map shows an aerial view of the property in
question with different shading for different geographical
descriptions; the property at issue is described as "forested
wetlands."
¶41 On the basis of these maps, the taxpayer argued that
the assessor's classification was erroneous and that the maps
supported his view that the property's being "marsh," "swamp,"
or "wetlands" prevented the property from being classified as
"productive forest land." He asserted that the maps more
accurately described his property as "undeveloped land" than as
"productive forest land."
¶42 The town assessor disputed the taxpayer's assertions
at the hearing, claiming that the aerial map showed that the
property was "pretty much all trees." The town assessor stated
that both maps described the property as "forested" or "wooded,"
17
No. 2010AP3015
supporting the classification of the property as "low-grade
woods."
¶43 The burden fell on the taxpayer to show that the board
erred and that the property was undeveloped land and not
"productive forest land." The taxpayer failed to submit
evidence that the property is not capable of producing
commercial forest products or that the property failed to
qualify as low-grade woods. The taxpayer relied entirely on the
two maps to show that the property was "undeveloped land." The
maps supported none of the taxpayer's contentions. The maps did
not support the taxpayer's contentions that the board erred;
that the property was improperly classified as productive forest
land; or that the property should be reclassified as undeveloped
land. The Wisconsin Property Assessment Manual notes that an
aerial photograph showing the presence of trees can indicate
forest classification and the presence of constantly wet soil
can indicate undeveloped land classification.22 The taxpayer
thus furnished no evidence that the assessment was not fixed
upon the statutory basis.
¶44 In their discussion, members of the board noted that
some of the property was "swampland," but that the property had
"a lot of trees on it." The members of the board concluded that
the classification should be maintained as-is.
22
1 Wisconsin Property Assessment Manual at 11-33 (eff.
1/09).
18
No. 2010AP3015
¶45 The circuit court held that the evidence provided by
the taxpayer was insufficient to meet his burden of proof.
Rather, the totality of the evidence was such "that it might
reasonably sustain the Board's determination." The court of
appeals also held that the taxpayer failed to make a record
showing that the classification was incorrect.
¶46 On certiorari review, a court does not retry the facts
and an assessment must be upheld if it can be supported by any
reasonable view of the evidence.23 This court "will review the
evidence only so far as to ascertain if there is reasonable
ground for belief that the decision [of the board of review] is
the result of honest judgment, in which case it will not be
disturbed."24
¶47 The taxpayer's argument in the present case centers on
the fourth element of certiorari review, namely that the board's
determination to adopt the assessor's classification of the
property is not supported by evidence such that the board might
reasonably make the determination in question. We conclude that
the board's determination is supported by a reasonable view of
the evidence. The taxpayer here failed to meet his burden to
present evidence justifying the board's overturning the
assessment. In light of all relevant evidence that the board
23
ABKA Ltd. P'ship v. Bd. of Review, 231 Wis. 2d 328, 335,
603 N.W.2d 217 (1999).
24
State ex rel. Boostrom v. Bd. of Review, 42 Wis. 2d 149,
155, 166 N.W.2d 184 (1969) (quoting State ex rel. N.C. Foster
Lumber Co. v. Williams, 123 Wis. 61, 64, 100 N.W. 1048 (1904)).
19
No. 2010AP3015
received, the board could reasonably conclude that the taxpayer
did not demonstrate that the classification was incorrect and
that the assessment should be lowered.
¶48 For the reasons set forth, we affirm the decision of
the court of appeals.
¶49 By the Court.——The decision of the court of appeals is
affirmed.
20
No. 2010AP3015.dtp
¶50 DAVID T. PROSSER, J. (concurring). I join the
majority opinion but write separately to provide additional
background and analysis for disputes about the classification of
real property.
I
¶51 In this case, the taxpayer appeared before the Town of
Black Creek Board of Review (the Board). He testified about his
position, and he supported his position with "two maps: one
issued by the Wisconsin Department of Natural Resources (DNR)
and the other issued by the United States Department of the
Interior Geological Survey." Majority op., ¶39. When the
taxpayer did not prevail before the Board, he filed for
certiorari review in the Outagamie County Circuit Court. See
Wis. Stat. § 70.47(13). He lost in the circuit court and on
appeal.
¶52 When a taxpayer appears before a board of review, the
taxpayer should proffer all the evidence available because he
will ordinarily be limited to that evidence on certiorari
review. If the taxpayer is able to gather additional evidence
after the board of review——often with the assistance of an
attorney——he should seek de novo review under Wis. Stat.
§ 74.37. De novo review will not shift the burden of proof from
the taxpayer to the board, but it will permit the taxpayer to
buttress his case with more and different evidence challenging
the correctness of the board's decision, which is normally based
on the assessor's determination.
1
No. 2010AP3015.dtp
¶53 In this case, the taxpayer did not dispute the
assessor's revaluation of his property. Rather, the taxpayer
contended that his property was improperly classified.1
¶54 In my view, the taxpayer would have been in a stronger
position with the board if the assessor had reclassified the
property and the resulting reclassification had produced a
higher assessment. In that case, the taxpayer could at least
point to the classification prior to the change to support his
position. Here, it was the taxpayer, not the assessor, who was
seeking to reclassify the property. Surely the taxpayer had the
burden in these circumstances.
¶55 This court does not know when the taxpayer's property
was first classified as "productive forest land" because that
evidence was never offered. The record shows that the taxpayer
acquired the property in 1977 with a farm, but it does not show
how the property was classified over the ensuing decades. The
taxpayer did not provide evidence of how his land had changed,
if at all, during his ownership.2 For instance, did he plant
trees on the property? Did he ever harvest trees from the
property for "commercial forest products"? If he never
harvested trees, was his failure to do so (1) because he did not
1
All reviewing courts concluded that he did not meet his
burden to accomplish this objective.
2
The record contains an "Objection Form For Real Property
Assessment." The form includes the following question: "Have
you improved, remodeled, added to, or changed this property
since acquiring it?" The taxpayer answered "No." The question
is sufficiently general that it does not really explore whether
the taxpayer did anything to the trees on the property.
2
No. 2010AP3015.dtp
want to harvest trees; (2) because the trees were of such poor
quality that they could not produce "commercial forest
products"; or (3) because the law would not allow him to harvest
trees from land designated as wetlands? Detailed information on
these matters might have helped or hurt the taxpayer's case, but
the absence of detailed information did not help his case.
¶56 This justice would have liked to have had a better
explanation of "low grade woods" than what was provided and
evidence of whether the "low grade woods"——here "low grade
cedar"——were capable of producing "commercial forest products."
This justice would have liked to have known whether all ten
acres of the taxpayer's property were designated "wetlands," as
well as when they were so designated and by whom. Finally, this
justice would have liked information on whether environmental
law prevents the harvesting of trees from officially designated
wetlands so that the forested land was not able to produce
"commercial forest products." On certiorari review, of course,
this court is not able to consider information that was not part
of the record of proceedings before the Board.
¶57 In sum, the taxpayer failed to offer sufficient
evidence to establish that his property required
reclassification. Because the Town of Black Creek (the Town)
had classified similar property the same way, the taxpayer was
effectively seeking a reclassification that could affect the
classification of other property in the Town. The taxpayer
should have realized that the Board would be disinclined to
3
No. 2010AP3015.dtp
adopt the taxpayer's position on anything less than compelling
evidence. The taxpayer did not provide such evidence.
II
¶58 Wisconsin Stat. § 70.32(2) establishes the procedure
for the classification of property:
(2) The assessor, having fixed a value, shall
enter the same opposite the proper tract or lot in the
assessment roll, following the instruction prescribed
therein.
(a) The assessor shall segregate into the
following classes on the basis of use and set
down separately in proper columns the values of
the land, exclusive of improvements, and, except
for subds. 5., 5m., and 6., the improvements in
each class:
1. Residential.
2. Commercial.
3. Manufacturing.
4. Agricultural.
5. Undeveloped.
5m. Agricultural forest.
6. Productive forest land.
7. Other.
¶59 Paragraph (c) in Wis. Stat. § 70.32(2) lists
definitions of "agricultural forest land," "agricultural land,"
"other," "productive forest land," "residential," and
"undeveloped land."
¶60 For purposes of this case, the definitions of
"agricultural forest land," "productive forest land," and
"undeveloped land" are relevant:
1d. "Agricultural forest land" means land that
is producing or is capable of producing commercial
forest products, if the land satisfies any of the
following conditions:
4
No. 2010AP3015.dtp
a. It is contiguous to a parcel that has been
classified in whole as agricultural land under this
subsection, if the contiguous parcel is owned by the
same person that owns the land that is producing or is
capable of producing commercial forest products. In
this subdivision, "contiguous" includes separated only
by a road.
b. It is located on a parcel that contains land
that is classified as agricultural land in the
property tax assessment on January 1, 2004, and on
January 1 of the year of assessment.
c. It is located on a parcel at least 50
percent of which, by acreage, was converted to land
that is classified as agricultural land in the
property tax assessment on January 1, 2005, or
thereafter.
. . . .
2. "Productive forest land" means land that is
producing or is capable of producing commercial forest
products and is not otherwise classified under this
subsection.
. . . .
4. "Undeveloped land" means bog, marsh, lowland
brush, uncultivated land zoned as shoreland under s.
59.692 and shown as a wetland on a final map under s.
23.32 or other nonproductive lands not otherwise
classified under this subsection.
Wis. Stat. § 70.32(2)(c).
¶61 As noted above, the taxpayer did not offer any
evidence of how the classification of his property had changed——
if it had——since the property was acquired in 1977.
III
¶62 Wisconsin did not require assessors to classify
property, in the manner described in Wis. Stat. § 70.32(2),
until 1931. See § 2, ch. 427, Laws of 1931.
5
No. 2010AP3015.dtp
¶63 There were several reasons for the development of
classifications at that time. First, Article VIII, § 1 of the
Wisconsin Constitution——the so-called uniformity clause——was
amended in 1927. This constitutional provision had read in
part, "The rule of taxation shall be uniform, and taxes shall be
levied upon such property as the legislature shall prescribe."
Wis. Const. art. VIII, § 1 (amended 1927). The 1927 amendment
changed this sentence to read, "The rule of taxation shall be
uniform, and taxes shall be levied upon such property with such
classifications as to forests and minerals, including or
separate or severed from the land, as the legislature shall
prescribe."3
¶64 Second, the legislature followed up the 1927 amendment
by creating Chapter 77 of the statutes relating to forest crop
lands. Ch. 454, Laws of 1927. The original law permitted the
owner of a tract of land that was at least 160 acres to petition
3
Wis. Const. art. VIII, § 1 (amended 1941) (emphasis
added). In the 1941 amendment, the language changed slightly
but remained largely the same:
The rule of taxation shall be uniform but the
legislature may empower cities, villages or towns to
collect and return taxes on real estate located
therein by optional methods. Taxes shall be levied
upon such property with such classifications as to
forests and minerals including or separate or severed
from the land, as the legislature shall prescribe.
Wis. Const. art. VIII, § 1.
In 1974 the people approved another constitutional
amendment adding the following sentence to Article VIII, § 1:
"Taxation of agricultural land and undeveloped land, both as
defined by law, need not be uniform with the taxation of each
other nor with the taxation of other real property."
6
No. 2010AP3015.dtp
the "conservation commission" to designate the land as "forest
crop land," "more useful for growing timber and other forest
crops than for any other purpose." Wis. Stat. § 77.02(1)
(1927). Approval of the petition by the commission subjected
the property to certain "forestry" practices as well as
substantial tax benefits. See generally Wis. Stat. ch. 77
(1927). The constitutional amendment contemplated that at least
some forest land would be classified differently from other
land,4 but it did not require that all forest land be classified
differently.
¶65 Third, the legislature was in the midst of giving
municipalities extensive planning and zoning authority. See,
for example, Wis. Stat. § 59.97 (1929), setting out the "zoning
power" of counties, which read in part, "(1) The county board of
any county may by ordinance regulate, restrict and determine the
areas within which agriculture, forestry and recreation may be
conducted, the location of roads, schools, trades and
industries, and the location of buildings designed for specified
uses . . . ."5 Zoning and the classification of property for
4
The "Woodland Tax Law," set out in Wis. Stat. § 77.16, was
not created until 1953. See § 2, ch. 384, Laws of 1953. The
Woodland Tax Law stated that "the owner of any tract of land of
less than 40 acres may file with the conservation director an
application setting forth a description of the property which he
desires to place under the woodland tax law and on which land he
will practice forestry." Id. If the conservation director
determined that the land was suitable for growing trees of
commercial quality, the application would be approved. Id. The
woodland would then be taxed at 20 cents per acre, and the owner
would be obligated to "promote the growth of trees." Id.
5
See also chs. 279 and 356, Laws of 1929; ch. 375, Laws of
1927; ch. 388, Laws of 1923.
7
No. 2010AP3015.dtp
taxation appear to overlap, even if that overlap may not be
wholly consistent.
¶66 The 1931 legislature6 repealed the existing Wis. Stat.
§ 70.32(2) and replaced it with the following:
(2) The assessor, having fixed a value, shall
enter the same opposite the proper tract or lot in the
assessment roll, following the instructions prescribed
therein. In cities and villages, he shall segregate
into the following classes on the basis of use and set
down separately in proper columns the values of the
land, exclusive of improvements, and the improvements
in each class:
A. Residential,
B. Mercantile,
C. Manufacturing,
D. Agricultural.
In towns, he shall segregate into the following
classes on the basis of use and set down separately in
proper columns the acreage and the value of the parts
of land, exclusive of improvements, and the
improvements which fall within each class:
D. Agricultural,
E. Marsh, cut-over, or waste,
F. Timber,
A. Residential, including also mercantile and
manufacturing.
Wis. Stat. § 70.32(2) (1931). The listed classes contained no
statutory definitions.
¶67 Wisconsin Stat. § 70.32(2) remained intact until 1959,
when the legislature amended § 70.32(2), relating to towns, to
include the following classes of property in Wis. Stat.
§ 70.32(2)(b):
A. Residential,
6
Ch. 427, Laws of 1931.
8
No. 2010AP3015.dtp
B. Mercantile,
C. Manufacturing,
D. Agricultural,
E. Marsh, cut-over, or waste,
F. Timber.7
¶68 Chapter 213, Laws of 1963 changed the listing in
§ 70.32(2)(b) to read:
A. Residential,
B. Mercantile,
C. Manufacturing,
D. Agricultural,
E. Swamp, or waste,
F.1 Productive forest land,
F.2 Nonproductive forest land.
¶69 Chapter 213 then added paragraph (c) containing
several definitions:
70.32(2)(c) For the purpose of this subsection
"swamp or waste" means bog, marsh, lowland brush or
other nonproductive lands not otherwise classified
under this subsection; "productive forest land" means
land which is producing or is capable of producing
commercial forest products and is not otherwise
classified under this subsection; "nonproductive
forest land" means land which because of soil or site
conditions is not producing or is not capable of
producing commercial forest products and which is not
otherwise classified under this subsection.
§ 2, ch. 213, Laws of 1963.
¶70 In 1981 the legislature deleted "Nonproductive forest
land" from § 70.32(2)(b) as well as its definition in (2)(c), so
that "Swamp, or waste" and "Productive forest land" were the
classifications that remained at the bottom of the list.
§§ 1059-60, ch. 20, Laws of 1981. The deletion was not
accompanied by any change in the definitions. "Swamp, or waste"
7
§ 27, ch. 19, Laws of 1959.
9
No. 2010AP3015.dtp
continued to be defined, in part, as "other nonproductive lands
not otherwise classified." Id.
¶71 In 1984 the legislature changed the word "mercantile"
to "commercial," 1983 Wis. Act 275, § 15(8), explaining in a
Note that "'[c]ommercial' is more readily understood and clearly
indicates that this classification includes all property devoted
to business uses."
¶72 In 1986 the legislature modified the definitions in
Wis. Stat. § 70.32(c), especially "Swampland or wasteland,"
which was defined to mean "bog, marsh, lowland brush,
uncultivated land zoned as shoreland under s. 59.971 and shown
as a wetland on a final map under s. 23.32 or other
nonproductive lands not otherwise classified under this
subsection." 1985 Wis. Act 153, § 12 (emphasis added).
¶73 In 1995 the legislature added "other" to the list.
1995 Wis. Act 27, § 3362d. However, "other" was not defined
until 2002. 2001 Wis. Act 109, § 156d.
¶74 Finally, 2003 Wis. Act 33 created a new category in
the listing, "Agricultural forest land," and it changed
"Swampland or wasteland" to "Undeveloped land." See 2003 Wis.
Act 33, §§ 1536h-1536i. The legislature created the following
definition of "Agricultural forest land":
"Agricultural forest land" means land that is
producing or is capable of producing commercial forest
products and is included on a parcel that has been
classified in part as agricultural land under this
subsection or is contiguous to a parcel that has been
classified in whole or in part as agricultural land
under this subsection, if the contiguous parcel is
owned by the same person that owns the land that is
producing or is capable of producing commercial forest
10
No. 2010AP3015.dtp
products. In this subdivision, "contiguous" includes
separated only by a road.
2003 Wis. Act 33, § 1536h.
¶75 The underlined words were vetoed by the governor.
However, 2003 Wis. Act 230 was devoted entirely to the
definition of "agricultural forest land" and created the
definition, quoted above in paragraph 60, that exists today.
See Wis. Stat. § 70.32(2)(c)1d.
IV
¶76 In this case, the taxpayer had the burden of proving
that his ten acres were not properly classified as "productive
forest land." The obvious argument to be made was that even
though the taxpayer's ten acres were forested, his land was not
producing and was not capable of producing commercial forest
products. If the taxpayer had succeeded with this argument, he
could then have argued that his land was "undeveloped land,"
defined in part as "other nonproductive lands not otherwise
classified under this subsection." See Wis. Stat.
§ 70.32(2)(c)4.
¶77 If the taxpayer had made the argument above but not
succeeded with it, he could have explored whether the land
qualified as "agricultural forest land" under Wis. Stat.
§ 70.32(2)(a)5m., as defined in § 70.32(2)(c)1d., because
11
No. 2010AP3015.dtp
"agricultural forest land" includes land capable of producing
commercial forest products.8
¶78 The fact that the taxpayer's land was designated as
wetlands did not necessarily mean that it met the definition for
undeveloped land, which is "uncultivated land zoned as shoreland
under 59.692 and shown as wetland on a final map under s.
23.32." Wis. Stat. § 70.32 (2)(c)4. (emphasis added). The land
would have to be "bog, marsh, lowland brush . . . or other
nonproductive land not otherwise classified under this
subsection" to be classified as "Undeveloped land." Id.
(emphasis added). The land would have been "otherwise
classified" if the land were "capable of producing commercial
forest products."
¶79 Forest land "capable of producing commercial forest
products" will likely be classified as either "agricultural
forest land" or "productive forest land." However, if
environmental law somehow prevents the trees from ever being
harvested so that the land is not actually "capable of producing
commercial forest products," it would seem that the "productive
forest land" or "agricultural forest land" classifications would
be improper. The latter point poses an unanswered statutory
interpretation question.
8
Although the record is unclear as to the precise nature of
the taxpayer's total property, the "Objection Form For Real
Property Assessment" indicates that the parcel at issue was
purchased with a farm and that the parcel is "land locked."
Thus, it is possible that the "farm" was agricultural land, and
the taxpayer might have been able to claim that the parcel at
issue was "agricultural forest land."
12
No. 2010AP3015.dtp
¶80 To sum up, the taxpayer may, in fact, have been
entitled to reclassification of his property, but not on the
evidence he provided.
¶81 For the foregoing reasons, I respectfully concur.
13
No. 2010AP3015.pdr
¶82 PATIENCE DRAKE ROGGENSACK, J. (concurring). The
majority opinion correctly upholds the Town of Black Creek Board
of Review's assessment of Frank Sausen's real property for
purposes of real estate taxation. I write in concurrence to
complete the certiorari review that applies when a board of
review's decision is examined on appeal.
I. BACKGROUND
¶83 Sausen owns real property in the Town of Black Creek,
Outagamie County, Wisconsin. He filed an objection to the
assessment of his property with the Town's board of review when
his assessment increased from $11,000 in 2008 to $27,500 in
2009. He claimed that his property had been incorrectly
classified as "productive forest land." He asserted that the
correct property classification was "undeveloped land," as
defined in Wis. Stat. § 70.32(2)(c)4., which would then be
assessed at 50 percent of its value pursuant to § 70.32(4). The
board of review denied his request to reclassify his property,
thereby affirming the $27,500 valuation for his assessment.
¶84 Pursuant to Wis. Stat. § 70.47(13), Sausen petitioned
for a writ of certiorari in regard to the board of review's
classification of his property as "productive forest land."1
1
If he had paid the taxes assessed, Sausen could have
appealed the assessment pursuant to Wis. Stat. § 74.37(3)(d)
wherein he would have commenced an independent action in circuit
court subsequent to the board of review's decision. See Nankin
v. Vill. of Shorewood, 2001 WI 92, ¶3, 245 Wis. 2d 86, 630
N.W.2d 141 (explaining that with real property located outside
Milwaukee County, a property owner could employ § 74.37(3)(d) to
recover taxes paid on an excessive assessment).
1
No. 2010AP3015.pdr
Upon certiorari review, the circuit court affirmed the board of
review. The court of appeals affirmed as well.2
II. DISCUSSION
A. Standard of Review
¶85 Petitions under Wis. Stat. § 70.47(13) proceed by
certiorari review, wherein we independently review the board of
review's decision while benefitting from the analyses of the
circuit court and court of appeals. State ex rel. Stupar River
LLC v. Town of Linwood Portage Cnty. Bd. of Review, 2011 WI 82,
¶16, 336 Wis. 2d 562, 800 N.W.2d 468. We look for "any error in
the proceedings of the board which renders the assessment or the
proceedings void." § 70.47(13); Northland Whitehall Apartments
Ltd. P'ship v. City of Whitehall Bd. of Review, 2006 WI App 60,
¶13, 290 Wis. 2d 488, 713 N.W.2d 646.
B. Certiorari Review
¶86 The scope of certiorari review under Wis. Stat.
§ 70.47(13) is limited to considering whether the board of
review's actions were: (1) within its jurisdiction; (2)
according to law; (3) arbitrary, oppressive or unreasonable and
represented its will, not its judgment; and (4) supported by
evidence such that the board might reasonably make the
determination under review. Joyce v. Town of Tainter, 232
Wis. 2d 349, 353, 606 N.W.2d 284 (Ct. App. 1999). "Certiorari
review under [] § 70.47(13) is limited to [] the record made
2
Sausen v. Town of Black Creek Bd. of Review, No.
2010AP3015, unpublished slip op. (Wis. Ct. App. Nov. 6, 2012).
2
No. 2010AP3015.pdr
before the board of review."3 Nankin v. Vill. of Shorewood, 2001
WI 92, ¶20, 245 Wis. 2d 86, 630 N.W.2d 141.
¶87 I note that the board of review had jurisdiction to
hear Sausen's objection to the classification of his property.
The classification of real property bears on the amount of the
property's assessment. Wis. Stat. § 70.32(4). The board of
review has statutory authority to review and evaluate the
assessor's decision and other evidence submitted to it when an
objection is made. Wis. Stat. § 70.47(7). Accordingly, the
decision of the board of review was within its jurisdiction.
See Anic v. Bd. of Review of the Town of Wilson, 2008 WI App 71,
¶19, 311 Wis. 2d 701, 751 N.W.2d 870 (explaining that the board
of review kept within its jurisdiction when it determined the
"probity and credibility of the witnesses").
¶88 In order for the board of review's decision to be made
according to law, the board's denial of Sausen's objections to
the assessment of his property would have involved consideration
of whether appropriate statutory criteria were followed in
arriving at the assessment. Johnson v. City of Greenfield Bd.
of Review, 2005 WI App 156, ¶6, 284 Wis. 2d 805, 702 N.W.2d 460.
The assessment includes the valuation of the real estate, as
well as its classification. Wis. Stat. § 70.32. Valuation is
governed by § 70.32(1), (1g) and (1m). Section § 70.32(1) is
3
Under Wis. Stat. § 74.37(3)(d), the action proceeds as do
other civil actions. Nankin, 245 Wis. 2d 86, ¶22. Such an
action permits a full trial on the assessment, unlike the
limited review accorded in certiorari review. Id., ¶24.
3
No. 2010AP3015.pdr
most relevant to the assessment of Sausen's property. It
provides that valuation shall proceed:
in the manner specified in the Wisconsin property
assessment manual provided under s. 73.03(2a) from
actual view or from the best information that the
assessor can practicably obtain, at the full value
which could ordinarily be obtained therefor at private
sale. In determining the value, the assessor shall
consider recent arm's–length sales of the property to
be assessed if according to professionally acceptable
appraisal practices those sales conform to recent
arm's—length sales of reasonably comparable property;
. . . and all factors that, according to
professionally acceptable appraisal practices, affect
the value of the property to be assessed.
¶89 The board of review considered recent arm's—length
sales of other property that were reasonably comparable to
Sausen's property. The board noted, "We have wood swampland
that was sold in the township parcel number 260 that was sold
for $2,750 per acre and also section 13 parcel 249 was also sold
for $2,750, they are very similar, similar type of woods on the
map."
¶90 Sausen's parcel contained ten acres. With a per acre
value of $2,750, the assessed value of $27,500 is consistent
with other comparable property that had a recent sale.
¶91 The board of review also considered Sausen's argument
that the property should be classified as "undeveloped land" and
decided that the assessor's description of low grade woods was
more appropriate due to all the trees. "Forested areas
primarily held for hunting" are generally given a forested
classification such as "[p]roductive forest land" described in
Wis. Stat. § 70.32(2)(c)2. See Wisconsin Dep't of Revenue,
4
No. 2010AP3015.pdr
Wisconsin Property Assessment Manual 2013, 5-55 – 5-56 (rev'd
12/11). The board of review then affirmed the classification of
"productive forest land" and the valuation of $27,500 given by
the assessor. In so doing, the board of review followed the
directive of § 70.32(1) and acted "according to law." See
Johnson, 284 Wis. 2d 805, ¶6 (explaining that assessments made
according the statutory criteria are made according to the law).
¶92 The board of review did not approach Sausen's
objection to the classification of his property in an arbitrary,
oppressive or unreasonable manner. It excluded no evidence that
Sausen sought to present. Rather, it considered the maps that
he submitted, his argument that his property should be
classified as "undeveloped land," other wooded hunting lands and
how they were assessed, and the assessor's professional opinion
that the property was correctly classified as "productive forest
land" because it contained low grade woods. See Whitecaps
Homes, Inc. v. Kenosha Cnty. Bd. of Review, 212 Wis. 2d 714,
722-23, 569 N.W.2d 714 (Ct. App. 1997) (concluding that so long
as there is a reasonable ground for the exercise of the board of
review's judgment, it will not be held to be arbitrary or
oppressive).
¶93 Sausen provided two maps as evidence: one from the
Wisconsin Department of Natural Resources (DNR map) and one from
the United States Department of the Interior Geological Survey
(US Survey map). Both maps are aerial photographs of Sausen's
property, and both maps described the property in ways other
than as "productive forest land," the classification the
5
No. 2010AP3015.pdr
assessor assigned to Sausen's property. However, neither map
described the land depicted as "undeveloped land." The DNR map
described the property as "forested" and "wetlands." The US
Survey map does not use descriptive labels for Sausen's
property.
¶94 Sausen represented himself before the board of review
and argued that the descriptions on the two maps confirmed his
belief that his property should have been classified as
"undeveloped land." However, Sausen did not provide expert
testimony from a real estate appraiser who may have been able to
link the descriptions on the maps to the statutory
classifications set out in Wis. Stat. § 70.32(2)(a)5. and 6.
Sausen did not have the expertise to make the necessary
connection. Accordingly, the assessor's opinion that the
property was correctly classified as "productive forest land"
pursuant to § 70.32(2)(a)6. was uncontroverted before the board
of review. Therefore, the evidence was such that the board of
review might reasonably make the determination that it made.
See Stupar River, 336 Wis. 2d 562, ¶¶25-27 (concluding that the
board of review's decision must be upheld if it is reasonable
under the evidence submitted).
III. CONCLUSION
¶95 Certiorari review of the board of review's decision
shows that the board: kept within its jurisdiction; acted
according to law; was not arbitrary, oppressive or unreasonable
in its decision-making; and heard evidence that reasonably
supported its decision. Accordingly, I concur with the majority
6
No. 2010AP3015.pdr
opinion and conclude that the board of review's decision must be
upheld.
7
No. 2010AP3015.pdr
1