Donald J. Thoma v. Village of Slinger

2018 WI 45

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1970 & 2016AP2528
COMPLETE TITLE: Donald J. Thoma and Polk Properties LLC,
Petitioners-Appellants-Petitioners,
v.
Village of Slinger,
Respondent-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS
(2015AP1970) AND ON BYPASS FROM THE COURT OF
APPEALS (2016AP2528)
Reported at 373 Wis. 2d 766, 895 N.W.2d 854
(2017 – Unpublished)

OPINION FILED: May 10, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 21, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washington
JUDGE: Andrew T. Gonring

JUSTICES:
CONCURRED:
DISSENTED: ROGGENSACK, C.J., dissents, joined by ZIEGLER,
J. (opinion filed).
NOT PARTICIPATING: KELLY, J., did not participate.

ATTORNEYS:

For the petitioners-appellants-petitioners, there were
briefs filed by Erik S. Olsen, Andrew D. Weininger, and Eminent
Domain Services, LLC, Madison. There was an oral argument by
Erik S. Olsen.

For the respondent-respondent, there was a brief filed by
Dustin T. Woehl, Thomas A. Cabush, and Kasdorf Lewis & Swietlik,
SC, Milwaukee. There was an oral argument by Thomas A. Cabush.

There was an amicus curiae brief filed on behalf of
Wisconsin Farm Bureau Federation by H. Dale Peterson, John J.
Laubmeier, and Stroud, Willink, & Howard, LLC, Madison. There
was an oral argument by H. Dale Peterson.

There was an amicus curiae brief filed on behalf of the
Wisconsin REALTORS Association, Wisconsin Builders Association,
and NAIOP-WI by Thomas D. Larson and Wisconsin REALTORS
Association, Madison.

2
 2018 WI 45
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1970 & 2016AP2528
(L.C. No. 2014CV700)

STATE OF WISCONSIN : IN SUPREME COURT

Donald J. Thoma and Polk Properties LLC,

Petitioners-Appellants-Petitioners, FILED
v. MAY 10, 2018
Village of Slinger, Sheila T. Reiff
Clerk of Supreme Court
Respondent-Respondent.

REVIEW of a decision of the Court of Appeals and APPEAL

from an order of the Circuit Court for Washington County, Andrew

T. Gonring, Judge. Affirmed.

¶1 REBECCA GRASSL BRADLEY, J. We accepted review in
these cases1 to decide whether an injunction prohibiting

1
This is a consolidated review of two cases: The first
case, 2015AP1970, came to us via a petition for review of Thoma
v. Village of Slinger, No. 2015AP1970, unpublished slip op.
(Wis. Ct. App. Jan. 18, 2017), and the second case, 2016AP2528,
came to us via a petition to bypass the court of appeals' review
of the Hon. Andrew T. Gonring's order denying a Wis. Stat.
§ 806.07 motion to vacate. These two cases share the same
circuit court case number as they both arise from the same
underlying matter.
 No. 2015AP1970 & 2016AP2528

agricultural use of a residentially-zoned property controls the

property's tax assessment classification. As it turns out, all

parties agree that the classification of real property for tax

purposes is based on the actual use of the property, and that an

injunction obtained based on a restrictive covenant does not

control tax assessment classification. This is in fact the law

in Wisconsin. See Wis. Stat. § 70.32(2)(a) (2013-14).2

¶2 What remains to be determined in this consolidated

appeal is: (1) whether Donald J. Thoma and Polk Properties LLC

(Thoma) presented sufficient evidence to the Village of Slinger

Board of Review to overturn the 2014 tax assessment, and (2)

whether the circuit court erroneously exercised its discretion

when it denied Thoma's Wis. Stat. § 806.07(1)(h) motion asking

the circuit court to vacate its original order affirming the

Board's decision and remand to the Board for a new hearing.

Because the record before the Board contains no evidence that

Thoma used the property agriculturally within the meaning of

Wisconsin tax law, we hold the Board's decision upholding the
tax assessment was lawful, supported by a reasonable view of the

evidence, and therefore cannot be disturbed. We further hold

that the circuit court did not erroneously exercise its

discretion when it denied Thoma's request to vacate the original

order. Accordingly, we affirm the decision of the court of

2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

2
 No. 2015AP1970 & 2016AP2528

appeals in 2015AP1970, and we affirm the order of the circuit

court in 2016AP2528.

I. BACKGROUND

¶3 This case centers on Thoma's challenge to the

Village of Slinger's 2014 property tax assessment for property

he purchased in 2004 and has attempted to develop into a

residential subdivision known as Pleasant Farm Estates.

Before Thoma purchased the land, it operated as a farm and

received an agricultural classification for tax assessment

purposes. The Village of Slinger continued to classify Thoma's

property as agricultural until the 2014 assessment.

¶4 In attempting to develop Pleasant Farm Estates, Thoma

worked with the Village of Slinger to rezone the area to

residential so individual lots could be sold for construction of

single family homes. Other lots were intended for construction

of condominiums. Thoma and the Village of Slinger entered into

a Developer's Agreement, which set forth three phases of

development. The Agreement also contained restrictive
covenants, one of which prohibited Thoma from using the land for

agriculture——Thoma's use had to be residential.3 Only two lots

were actually sold and the property remains mostly vacant land.

3
The exact language of the restrictive covenant is unknown
because this document is not in the record. Nevertheless, for
purposes of our review, there is no dispute that the Village of
Slinger obtained an injunction based on a restrictive covenant
requiring Thoma to limit the property to residential use and
cease engaging in any agricultural activity on the property.

3
 No. 2015AP1970 & 2016AP2528

The vacant land has ground cover, which is maintained by regular

mowing.

¶5 In 2011, the Village of Slinger filed suit against

Thoma to enforce the restrictive covenant and in 2012

successfully obtained an injunction prohibiting Thoma from using

the land for agricultural purposes. See Vill. of Slinger v.

Polk Prop. LLC, Washington Cty. Circuit Ct. Case No. 2011CV1224.

The injunction lawsuit occurred contemporaneously with Thoma's

tax assessment challenge, and Thoma's appeal in the injunction

lawsuit is currently pending in the court of appeals. See Vill.

of Slinger v. Polk Prop. LLC, 2017AP2244 (Record transmitted to

court of appeals on Feb. 27, 2018).

¶6 In order to contest his 2014 tax assessment, Thoma and

his counsel appeared before the Village of Slinger Board of

Review for a hearing in June 2014. Three witnesses were sworn

to testify: Thoma; his counsel; and the Village of Slinger's

assessor, Michael Grota. Thoma testified that he thought the

property should be classified as agricultural because that was
the classification it carried the prior year. Thoma contended

the 62 acres had zero value. Thoma urged the Board to apply the

agricultural classification because nothing had changed on the

property from the previous year, he maintained ground cover on

the vacant land, and he was having trouble selling the lots. He

shared with the Board vague information about a few other

residential development projects that were also struggling and

claimed that market value for these projects had dropped
substantially. Thoma did not present any documentation to
4
 No. 2015AP1970 & 2016AP2528

support these statements, and he offered no testimony or

evidence that the property was being used for farming or that he

was harvesting crops for food or fiber. Although Thoma left the

hearing early to attend a funeral, his counsel remained and

reaffirmed several times that Thoma was not farming the

property; rather, he was "just maintaining the ground cover," as

well as "maintain[ing] the property, to try to sell the lots,"

and "keeping the ground cover maintained and – and making sure

that they're appropriate for – for sale . . . it's not farming,

it's just kind of maintaining the – the property."

¶7 Assessor Grota testified that he changed the use

classification from agricultural to residential because it was

his understanding that the injunction prohibiting any

agricultural use on the property required the property to be

classified as residential for tax assessment purposes. Grota

said his opinion was based on his conversation with Patrick

Chaneske, "the Regional Supervisor for the Department of

Revenue, in charge of Equalization in Southeastern Wisconsin."
Grota submitted comparable sales of similar properties to

support the numbers he used to reach his assessment.

¶8 The Board's attorney advised the Board members that

maintaining ground cover was not sufficient to obtain an

agricultural use classification: "Well, let me clarify. If it

is simply maintaining ground cover, it's not an ag[ricutural]

use." Ultimately, the Board voted 2-1 to uphold the assessor's

assessment because Thoma failed to submit sufficient evidence to
prove the assessor's number (or classification) was wrong:
5
 No. 2015AP1970 & 2016AP2528

"There's a motion on the table to uphold the assessor's

assessment of the property values. Since the objector did not

provide adequate evidence in rebuttal and we will now take a

roll call vote." Two of the Board's members voted

affirmatively. The third Board member voted against the motion

because she believed, based on her personal observation, that

Thoma was using the property for what she believed qualified as

agricultural use——"I've seen the guy on the tractor with the

bailer."4

4
This court is troubled by the peculiarities in the Board
of Review's record in this matter. First, the Board of Review's
Transcript notes that only two documents were marked: The
"Developer's Agreement" was marked as Exhibit 31 and the
"Assessor's Presentation" was marked as Exhibit 51. The
transcript contains testimony regarding the Developer's
Agreement. Yet, the record the Board sent with the return of
the Writ does not contain any exhibit marked 31 or 51. The
Board's record does contain a CD marked as "Exhibit 7" which
contains "Polk Property Assessor's records" but does not contain
anything purporting to be the Developer's Agreement. There is a
nine-page document labeled "Amended Developers' Agreement for
Pleasant Farm Estates," but only page one of this document is
part of the Developer's Agreement. Disturbingly, the second
page of this record item is from an entirely different and
unrelated case, and the other pages are not the Developers'
Agreement. Second, the parties stipulated to the removal of
Exhibit 7 from the record, and the circuit court so ordered its
removal; the reason for its removal is absent from the record.
Third, a DVD-R disk marked "Exhibit 1" and "Slinger BOR June 23,
2014," is not an audio recording of the Board hearing even
though, according to the Village of Slinger's Treasurer/Deputy
Clerk's sworn "Return on Writ of Certiorari," it is supposed to
be. This exhibit instead contains 96 pictures of a dilapidated
home taken on September 2, 2013, which has nothing to do with
Thoma's case. Fourth, the document the Board holds out to be
its "Findings of Fact, Determinations and Decision dated June
23, 2014" is a form document partially filled in with only the
number "1" circled in the "Decision" section and no further
(continued)
6
 No. 2015AP1970 & 2016AP2528

¶9 Thoma petitioned for a writ of certiorari pursuant to

Wis. Stat. § 70.47(13), and the circuit court affirmed the

decision of the Board in July 2015.5 Thoma appealed to the court

of appeals, which also affirmed the decision of the Board.

Thoma v. Village of Slinger, No. 2015AP1970, unpublished slip

op. (Wis. Ct. App. Jan. 18, 2017). In October 2016, while

Thoma's appeal was pending in 2015AP1970, he filed a motion in

the circuit court to vacate the circuit court's first decision

affirming the Board, claiming that Assessor Grota gave faulty

testimony at the Board of Review Hearing. Specifically, Thoma

claimed that Grota misrepresented to the Board that the

Wisconsin Department of Revenue required him to classify Thoma's

property as residential because of the injunction. Thoma

asserted that the Board's decision erroneously relied on Grota's

faulty testimony; therefore, Thoma argued, the circuit court

should vacate its original order affirming the Board and send it

back for a new Board hearing. The circuit court entered an

order denying Thoma's motion to vacate. Thoma filed a new
appeal, 2016AP2528, and petitioned this court to bypass the

explanation given as to the Board's decision outside of the
hearing transcript. We remind the Village of Slinger that its
Board of Review is a quasi-judicial body bearing the
responsibility to keep accurate records, in part so that courts
can engage in a meaningful and complete review of the
proceedings. See Darcel, Inc. v. City of Manitowoc Bd. of Rev.,
137 Wis. 2d 623, 626, 405 N.W.2d 344 (1987).
5
We note that the circuit's order refers to the Village of
Slinger Board of Review as the "Board of Appeals." This
scrivener's error does not affect our analysis.

7
 No. 2015AP1970 & 2016AP2528

court of appeals so that review of this circuit court order

could be consolidated with review of the court of appeals

decision. We granted Thoma's bypass petition and consolidated

these cases.6

II. STANDARD OF REVIEW

¶10 In certiorari review under Wis. Stat. § 70.47(13), we

review the Board of Review's decision, not the decisions of the

circuit court or court of appeals, although we benefit from

their analyses. See Sausen v. Town of Black Creek Bd. of Rev.,

2014 WI 9, ¶¶4-5, 352 Wis. 2d 576, 843 N.W.2d 39. Review is

limited to "the record made before the board of review." Saddle

Ridge Corp. v. Bd. of Rev., 2010 WI 47, ¶36, 325 Wis. 2d 29, 784

N.W.2d 527. Our review is confined to deciding "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." Sausen, 352 Wis. 2d 576, ¶6
(footnote omitted). The taxpayer challenging an assessment

based on improper classification bears the burden of proving the

classification is erroneous. Id., ¶10. If the taxpayer does

not meet his burden of proof and "the board's determination to

6
The document Thoma filed with this court was labeled a
"Motion to Consolidate." We construed it as a petition to
bypass.

8
 No. 2015AP1970 & 2016AP2528

maintain the assessment is supported by a reasonable view of the

evidence," we will affirm the Board's decision. Id.

¶11 In reviewing a circuit court's order denying relief

under Wis. Stat. § 806.07(1)(h), we apply the erroneous exercise

of discretion standard. See Miller v. Hanover Ins. Co., 2010 WI

75, ¶29, 326 Wis. 2d 640, 785 N.W.2d 493. If the circuit court

based its decision on the pertinent facts in the record, applied

the correct legal standard, and reached a reasonable

determination, it properly exercised its discretion and we will

uphold its decision. See Larry v. Harris, 2008 WI 81, ¶15, 311

Wis. 2d 326, 752 N.W.2d 279.

III. DISCUSSION

¶12 Thoma wants his land classified as agricultural for

tax assessment purposes. His arguments before this court rest

on three basic propositions: (1) Thoma and Grota previously

agreed that ground cover counted as agricultural use; (2)

Grota's testimony that the injunction controlled over actual use

caused the Board to reach the wrong decision; and (3) the hay
and alfalfa being cut on his property falls under subsector 111,

Crop Production, of the North American Industry Classification

System (NAICS), which satisfies the legal tax definition of

agricultural use.7

7
Thoma also argued that public policy supports maintaining
an agriculture classification for land undergoing economic
development. The Wisconsin Farm Bureau Federation submitted an
amicus brief refuting Thoma's claim. The court appreciates the
Farm Bureau's thoughtful recitation explaining the history of
the use-value assessment legislation enacted to protect
(continued)
9
 No. 2015AP1970 & 2016AP2528

¶13 Our review is limited both by the applicable standard

of review in certiorari actions and by the evidence presented to

the Board at the hearing "no matter how incomplete or inadequate

it may be." See State ex el. Hemker v. Huggett, 114

Wis. 2d 320, 323, 338 N.W.2d 335 (Ct. App. 1983). These two

constraints lead us to a simple conclusion: Thoma did not

present sufficient evidence to the Board to support an

agricultural classification of his property under the tax

assessment law. To the contrary, the evidence presented to the

Board supports the assessor's residential classification. Thus,

we must affirm the Board's decision upholding the assessment.

See Dempze Cranberry Co., Inc. v. Bd. of Rev., 143 Wis. 2d 879,

884, 422 N.W.2d 902 (Ct. App. 1988); Northland Whitehall Apts.

Ltd. P'ship v. City of Whitehall Bd. of Rev., 2006 WI App 60,

¶24, 290 Wis. 2d 488, 713 N.W.2d 646. We must affirm even if

Thoma and Grota wrongly believed that ground cover qualified as

agricultural use and even if Grota classified the property as

residential based on the injunction, because our decision
depends on the evidence before the Board and what the law is,

not on off-the-record conversations or an assessor's

misunderstanding of the law. Although Grota erred both in

basing his classification solely on the injunction and

testifying that the injunction determined classification,

neither error impacts our conclusion. Thoma's failure to submit

Wisconsin's farmland.

10
 No. 2015AP1970 & 2016AP2528

any evidence to prove agricultural activity was taking place on

his property leaves the residential classification unrebutted,

supported by the evidence, consistent with applicable law, and

therefore correct.

A. Tax Assessment Agricultural Classification

¶14 Before addressing the merits of this case, we set

forth the law applicable to tax assessment and the requirements

for land to receive classification as agricultural. A property

is assessed according to its classification, which is determined

by its use. Wis. Stat. § 70.32(2)(a). There are eight classes

of property, including residential and agricultural.8 Id.

Wisconsin Stat. § 70.32 specifically cross-references "ch. Tax

18 Wis. Adm. Code," which provides that an assessor "shall

classify as agricultural land devoted primarily to agricultural

use." Wis. Admin. Code DOR § Tax 18.06(1). "'Land devoted

primarily to agricultural use' means land in an agricultural use

for the production season of the prior year, and not in a use

8
Wisconsin Stat. § 70.32(2)(a) lists eight possible use
classifications as:

1. Residential.
2. Commercial.
3. Manufacturing.
4. Agricultural forest.
5. Undeveloped.
5m. Agricultural.
6. Productive forest land.
7. Other.

11
 No. 2015AP1970 & 2016AP2528

that is incompatible with agricultural use on January 1 of the

assessment year." Wis. Admin. Code DOR § Tax 18.05(4).9

¶15 Wisconsin Stat. § 70.32 also provides: "'Agricultural

land' means land, exclusive of buildings and improvements and

the land necessary for their location and convenience, that is

devoted primarily to agricultural use." Wis. Stat.

§ 70.32(2)(c)(1g); and "'Agricultural use' means agricultural

use as defined by the department of revenue by rule and includes

the growing of short rotation woody crops, including poplars and

willows, using agronomic practices." Wis. Stat.

§ 70.32(2)(c)(1i).

¶16 The Department of Revenue defines "agricultural use"

to mean "[a]ctivities included in subsector 111 Crop Production,

set forth in the North American Industry Classification System

(NAICS)." Wis. Admin. Code DOR § Tax 18.05(1)(a).10 The NAICS

9
Wisconsin Admin. Code DOR § TAX 18.06(1) provides:

Land devoted primarily to agricultural use shall
typically bear physical evidence of agricultural use,
such as furrow, crops, fencing, or livestock,
appropriate to the production season. If physical
evidence of agricultural use is not sufficient to
determine agricultural use, the assessor may request
of the owner . . . such information as is necessary to
determine if the land is devoted primarily to
agricultural use.
10
Wisconsin Admin. Code DOR § Tax 18.05(1)(b)-(d) also
defines "agricultural use" to mean activities relating to
"subsector 112 Animal Production," "[g]rowing Christmas trees or
ginseng," and "[l]and without improvements subject to a federal
or state easement . . . ."

12
 No. 2015AP1970 & 2016AP2528

is reproduced in full in the Wisconsin Property Assessment

Manual (WPAM). The NAICS explains that "[i]ndustries in the

crop production subsector grow crops mainly for food and fiber,"

and the "production process is typically completed when the raw

product or commodity grown reaches the 'farm gate' for market."

WPAM, ch. 11, App. A-13. It further describes "Crop Production"

"establishments" "as farms, orchards, groves, greenhouses, and

nurseries, primarily engaged in growing crops, plants, vines, or

trees and their seeds." Id.

¶17 We emphasize what is clear under applicable law and

undisputed by the parties: classification of real property for

tax assessments is based on how the property is being used. See

Wis. Stat. § 70.32(2); Wis. Admin. Code DOR § Tax 18.05(1).

Zoning, injunctions, ordinances, and contracts do not trump

actual use for tax assessment purposes. See Fee v. Bd. of Rev.,

2003 WI App 17, ¶12, 259 Wis. 2d 868, 657

N.W.2d 112; Wis. Stat. § 70.32(2)(c)(1g);

https://www.revenue.wi.gov/Pages/FAQS/slf-useassmt.aspx (last
visited Feb. 28, 2018). Although an injunction, contract, or

ordinance may be presented to argue how the property is supposed

to be used, none can be the decisive factor for tax assessment

purposes. Actual use controls whether property qualifies for

agricultural or any other classification for tax assessment

purposes. In order to obtain agricultural use classification,

the property owner must meet the definition of agricultural use

set forth in the statutes and tax code.

13
 No. 2015AP1970 & 2016AP2528

¶18 Property falls under a residential classification if

it is a "parcel or part of a parcel of untilled land that is not

suitable for the production of row crops, on which a dwelling or

other form of human abode is located and which is not otherwise

classified under this subsection." Wis. Stat. § 70.32(2)(c)3.

In determining "whether vacant land should be classified as

residential" the following questions are considered:

 "Are the actions of the owner(s) consistent with an

intent for residential use?";

 "Is the size of the parcel typical of residential or

developing residential parcels in the area?";

 "Is the parcel zoned residential or is residential

zoning likely to be allowed?";

 "Is the parcel located in a residential plat,

subdivision, CSM or near other residential

development?";

 "Does the parcel's topography or physical features

allow for residential use?";
 "Is the parcel located in an urban or rapidly changing

to urban area, as contrasted with a location distant

from much residential activity?";

 "Are there any other factors affecting the parcel

which would indicate residential use is reasonably

likely or imminent?".

Wisconsin Property Assessment Manual 12-1 (Rev. 12/2017).

B. Thoma's Burden & Presentation at the Board Hearing

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 No. 2015AP1970 & 2016AP2528

¶19 In property tax assessment challenges, the taxpayer

bears the burden of proving the assessment is wrong. See

Sausen, 352 Wis. 2d 576, ¶37. If the taxpayer fails to meet his

burden of justifying a change in the assessment, then the

Board's only option is to accept the assessor's assessment.

This is so because a presumption attaches to the assessor's

valuation, Wis. Stat. § 70.47(8)(i),11 and unless the taxpayer

presents information proving the assessor's classification or

valuation is wrong, the taxpayer is stuck with the assessment.

See Woller v. DOT, 35 Wis. 2d 227, 232, 151 N.W.2d 170 (1967)

("When the assessment is disputed, as here, the burden of proof

is on the taxpayer to show error."); State ex rel. Giroux v.

Lien, 108 Wis. 316, 318, 84 N.W. 422 (1900) ("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.").

¶20 Thoma challenged his 2014 tax assessment because he

believed the classification was wrong. The assessor based the
2014 assessment on the residential classification and Thoma

believed the property should have been classified as

agricultural. Thus, Thoma had the burden to prove to the Board

that his property was being used for agricultural use as defined

11
Wisconsin Stat. § 70.47(8)(i) provides: "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."

15
 No. 2015AP1970 & 2016AP2528

in the tax code. As noted, "agricultural use" bears a very

specific meaning for tax assessment purposes.

¶21 Thoma did not present any such evidence. Rather,

Thoma and his attorney repeatedly denied that any farming was

taking place. Thoma and his attorney testified only that he was

growing ground cover to maintain the property, hoping the lots

could be sold for residential construction. This dooms Thoma's

case.

¶22 Thoma's erroneous belief that growing ground cover

qualified the property for agricultural classification has no

impact on the analysis, nor does his contention that he and

Assessor Grota privately agreed that ground cover constitutes

agricultural use. We must apply the law as it exists, not how a

party or an assessor mistakes it to be. The law does not permit

agricultural classification for the use Thoma told the Board

existed at the time of the Board hearing. Because Thoma

admitted he was using the property only for maintaining ground

cover, and ground cover does not fall within the statutory
definition of agricultural use, the Board had no choice but to

uphold the assessment. In so doing, it acted within its

jurisdiction, according to law, in a reasonable manner, and with

evidentiary support.

¶23 Further, Thoma's claim on appeal that he was also

growing and harvesting hay and alfalfa does not alter our

decision. We are bound by the record before the Board. See

Saddle Ridge Corp., 325 Wis. 2d 29, ¶36; Hemker, 114 Wis. 2d at
323. Neither Thoma nor his attorney presented any testimony to
16
 No. 2015AP1970 & 2016AP2528

the Board that the property was being operated as a hay and

alfalfa farm or that any crop was being grown on the property to

be sold for food or fiber. Instead, both adamantly denied any

farming took place at all on the land and insisted that Thoma

was maintaining ground cover only. The only reference to hay at

the Board hearing came from the Board's attorney who explained

that if a property owner is cutting and bailing hay and using it

to feed livestock, then the property qualifies for agricultural

use classification. The dissenting Board member's comments

could potentially be construed to support a bailing hay use,12

but no one testified that hay or alfalfa was being grown,

bailed, or sold for food or fiber. The Board attorney was

simply giving a hypothetical that hay bailing would be an

agricultural use——not that this actually occurred on Thoma's

property. The dissenting Board member believed something was

being grown and bailed on the property but said nothing about it

being sold or used for food or fiber. Regardless, neither the

Board attorney nor the dissenting Board member were sworn
witnesses. In short, Thoma failed to present any evidence that

his use qualified as agricultural for tax assessment purposes.

12
The dissenting Board member's comments included a
response to the Board attorney's explanation about the hay,
"That's why I'm confused. I – I was out there and I saw there
was that going on," [sic] and a desire to classify Thoma's
property as agricultural because the dissenting Board member
"drove in there every day from the first house that was there,
from '08 or whatever it was, and I've seen the guy on the
tractor with the bailer and no zero turn was out there cutting
grass as a residential maintenance."

17
 No. 2015AP1970 & 2016AP2528

¶24 We are unpersuaded by Thoma's attorney's attempt

during oral argument to establish proof of agricultural use by

linking three statements from the hearing: (1) a Board member's

personal observation of hay growing on the property in the past;

(2) Assessor Grota's testimony that the property's past use was

agricultural; and (3) Thoma's testimony that its use had not

changed. A Board member's personal observation is not testimony

or evidence and the referenced testimony by Grota and Thoma does

not change the fact that ground cover does not constitute

agricultural use for tax assessment purposes.

¶25 We also reject Thoma's argument that Grota's erroneous

view of the effect of the injunction on classification requires

a reversal for a new Board hearing. It is troubling that the

Village of Slinger's assessor presented his incorrect belief to

the Board about the impact of the injunction. We expect

assessors to know, understand, and apply the correct tax

assessment laws. Nevertheless, we are bound by the record. The

transcript of the proceedings does not demonstrate that the
Board denied Thoma's challenge based on Grota's mistaken

"injunction-controls" belief. Rather, the transcript

establishes that the Board denied Thoma's challenge because the

evidence indicated Thoma was maintaining ground cover on his

land, which does not constitute a statutorily defined

18
 No. 2015AP1970 & 2016AP2528

agricultural use.13 Additionally, even though the assessor

adduced the wrong basis for selecting residential

classification, this property did in fact qualify as residential

according to the statutory definition of residential use. It

was untilled land not suitable for production or row crops and

was "not otherwise classified." See Wis. Stat. § 70.32(2)(c)3.

And, there can be no dispute that the property was properly

classified as residential since each of WPAM's inquiries for

determining whether vacant land should be classified as

residential would be answered affirmatively.

C. Circuit Court Order Denying Thoma's Motion to Vacate

¶26 Thoma next contends the circuit court should have

vacated its original order affirming the Board's decision to

uphold the assessor's assessment of his property. He claims the

circuit court should have granted his request for a new Board

hearing because of Grota's "false" testimony at the hearing that

13
Thoma contends the "Minutes" of the Board prepared after
the hearing are incorporated into its Findings of Fact,
Determinations and Decision because that Decision said "see
attached minutes." We reject this contention. First, the
Decision says "see attached minutes" but only with regard to
"Tax Key Number." Thus, only the tax key number is incorporated
into the Decision. Second, although the Minutes were sent to
the circuit court, there is nothing in the record documenting
how the Minutes were prepared or if the three-member Board
approved them. Moreover, in sending the Decision itself to the
circuit court, the Village of Slinger's Treasurer/Deputy Clerk
did not append the Minutes to the Decision. To be sure, nothing
in the Minutes alters our determination that Thoma failed to
present sufficient evidence to warrant a change in his 2014 tax
assessment.

19
 No. 2015AP1970 & 2016AP2528

the injunction controlled the tax classification. Because the

circuit court did not erroneously exercise its discretion when

it denied Thoma's motion to vacate, we reject Thoma's claim and

affirm the circuit court's order.

¶27 After the circuit court affirmed the Board's decision

and dismissed the writ for certiorari, and while Thoma's appeal

was pending, he filed another lawsuit directly against Assessor

Grota. See Polk Prop., LLC v. Grota Appraisals, LLC, Waukesha

Cty. Circuit Ct., 2016CV63. Pursuant to that lawsuit, sometime

in 2016, Thoma's counsel deposed Grota and Wisconsin Department

of Revenue employee Patrick Chaneske.14 In September 2016,

Chaneske testified at his deposition that he never told Grota an

injunction prohibiting agricultural use required Grota to change

the classification of Thoma's property from agricultural to

residential. Rather, Chaneske testified he advised Grota that

actual use of the property controls classification.

¶28 Shortly after Chaneske's deposition, in October 2016,

Thoma filed a motion asking the circuit court to exercise its
discretionary authority under Wis. Stat. § 806.0715 to vacate its

14
Patrick Chaneske worked at the Wisconsin Department of
Revenue and at the time of the events in this matter served as
the equalization supervisor for the Milwaukee District Office to
review and equalize assessments submitted by nine counties in
the southeastern part of Wisconsin. As pertinent here, in 2014,
Grota and Chaneske had telephone conversations to discuss the
effect of the injunction on classification of Thoma's property
for the 2014 property tax assessment.
15
Wisconsin Stat. § 806.07 provides:

(continued)
20
 No. 2015AP1970 & 2016AP2528

Relief from judgment or order. (1) On motion and upon
such terms as are just, the court, subject to subs.
(2) and (3), may relieve a party or legal
representative from a judgment, order or stipulation
for the following reasons:

(a) Mistake, inadvertence, surprise, or excusable
neglect;

(b) Newly-discovered evidence which entitles a party
to a new trial under s. 805.15 (3);

(c) Fraud, misrepresentation, or other misconduct of
an adverse party;

(d) The judgment is void;

(e) The judgment has been satisfied, released or
discharged;

(f) A prior judgment upon which the judgment is based
has been reversed or otherwise vacated;

(g) It is no longer equitable that the judgment should
have prospective application; or

(h) Any other reasons justifying relief from the
operation of the judgment.

(2) The motion shall be made within a reasonable time,
and, if based on sub. (1) (a) or (c), not more than
one year after the judgment was entered or the order
or stipulation was made. A motion based on sub. (1)
(b) shall be made within the time provided in s.
805.16. A motion under this section does not affect
the finality of a judgment or suspend its operation.
This section does not limit the power of a court to
entertain an independent action to relieve a party
from judgment, order, or proceeding, or to set aside a
judgment for fraud on the court.

(3) A motion under this section may not be made by an
adoptive parent to relieve the adoptive parent from a
judgment or order under s. 48.91 (3) granting adoption
of a child. A petition for termination of parental
rights under s. 48.42 and an appeal to the court of
(continued)
21
 No. 2015AP1970 & 2016AP2528

original order affirming the Board's decision. Section

806.07(1)(h) allows circuit courts to relieve a party from a

judgment or order for "[a]ny other reasons justifying relief

from the operation of the judgment." Id. Thoma claimed

Chaneske's deposition proved Grota presented faulty testimony to

the Board and the Board relied on the faulty testimony;

consequently, Thoma argued, an injustice occurred that could be

undone by vacating the original order affirming the Board's

decision and sending the matter back to the Board for a new

hearing.

¶29 The circuit court disagreed. It refused to exercise

its discretion to vacate the original order because: (1) Thoma

failed "to show extraordinary and unusual circumstances that

justify that relief" under Wis. Stat. § 806.07(1)(h); (2) when

the circuit court reviewed the Board hearing transcript, it "was

struck by the lack of evidence presented by" Thoma as he

"supplied no proof whatsoever as to why the property should

remain agricultural"; (3) regardless of Chaneske's testimony,
the injunction prevented any agricultural use on the property;

(4) the circuit court is limited to "the record made at the

Board of Review hearing," and (5) "[t]here is something to be

appeals shall be the exclusive remedies for an
adoptive parent who wishes to end his or her parental
relationship with his or her adoptive child.

22
 No. 2015AP1970 & 2016AP2528

said for the finality of judgments" particularly when the

decision being challenged "was more than two years ago."

¶30 In deciding a Wis. Stat. § 806.07(1)(h) motion, the

circuit court should "examine the allegations accompanying the

motion," assume they are true, and determine whether they

present "extraordinary or unique" facts justifying relief under

paragraph (1)(h). Sukala v. Heritage Mut. Ins. Co., 2005 WI 83,

¶10, 282 Wis. 2d 46, 698 N.W.2d 610. "[T]he circuit court

should consider whether unique or extraordinary facts exist that

are relevant to the competing interests of finality of judgments

and relief from unjust judgments." Id., ¶11. If the circuit

court finds extraordinary or unique facts from its review of the

motion materials, it should hold a hearing to decide "the truth

or falsity of the allegations." Id., ¶10. We conclude the

circuit court did not erroneously exercise its discretion.

¶31 As a preliminary matter, we note that because Thoma's

motion was made more than two years after the Board's decision

and more than a year after the circuit court's order affirming
the Board's decision, Thoma's only avenue for relief was under

Wis. Stat. § 806.07(1)(h)——the catchall "justice" provision.

Thoma could not seek relief under Wis. Stat. § 806.07(1)(a)'s

"mistake, inadvertence, surprise, or excusable neglect"

paragraph; (1)(b)'s "newly-discovered evidence" paragraph; or

(1)(c)'s "fraud, misrepresentation or other misconduct"

paragraph because Wis. Stat. § 806.07(2) requires such claims be

filed within one year of the judgment or order.

23
 No. 2015AP1970 & 2016AP2528

¶32 Our review shows the circuit court examined the

relevant facts and applied the pertinent law to reach a

reasonable determination. The circuit court acknowledged the

allegations Thoma made in his motion materials, but did not find

the allegations presented extraordinary or unique facts

warranting relief. The circuit court recounted that the record

showed Thoma failed to present any evidence that he was using

the property for an agricultural use that satisfied Wisconsin's

tax law definition. The circuit court concluded Thoma's

allegations did not present extraordinary or unique facts

because Chaneske's deposition testimony revealing Grota's error

did not alter Thoma's absolute failure to satisfy his burden of

proof at the Board hearing. The circuit court also expressed

concern about the finality of the order at issue given the

substantial amount of time that had passed since the Board

decided the case. Although the circuit court improperly

included the injunction as a basis, the circuit court's main

reason for denying the motion rested on Thoma's failure to
present any evidence to support agricultural use. Accordingly,

the circuit court's decision was proper.

¶33 This court acknowledges that Chaneske's deposition

certainly suggests Grota misunderstood Chaneske during their

phone conversations about the injunction, and, as a result,

Grota gave the Board incorrect information about the effect of

the injunction. But the fact remains that the transcript from

the Board hearing reveals Thoma did not submit any evidence to
prove agricultural use and the Board's decision was based on
24
 No. 2015AP1970 & 2016AP2528

Thoma's failure to meet his burden, not on Grota's incorrect

testimony.16 We recognize that at first retrospective glance,

the Board's decision may appear unfair because the assessor

selected a tax classification based on his misconception that an

injunction controlled it. A Board decision based on such

incorrect information certainly raises a specter of injustice.

But the record here dispels such concerns. If the record

established that Thoma had presented evidence to the Board that

his use was agricultural as defined by the tax law, and the

Board nevertheless rejected his proof in reliance on Grota's

erroneous testimony that the injunction trumps use, we would

agree with Thoma that the circuit court should have granted him

relief. But the hearing transcript uncovers no such evidence.

IV. CONCLUSION

¶34 In this consolidated case, we conclude that Thoma

failed to prove he was using his property for agricultural use

as that term is statutorily defined for tax assessment purposes.

The Village of Slinger's assessor testified, mistakenly, that an
injunction controls a property's classification for tax

assessment purposes, but his misapprehension of the law did not

supply the basis for the Board's decision to uphold the

16
Thoma characterizes Grota's testimony as false. It was
certainly incorrect, but there is nothing in this record
suggesting that Grota lied to the Board.

25
 No. 2015AP1970 & 2016AP2528

assessment.17 Rather, the lack of any evidence to show the

property fit an agricultural classification occasioned the

Board's decision, which is supported by a reasonable view of the

evidence. We further conclude the circuit court did not

erroneously exercise its discretion in denying Thoma's motion to

vacate the original order affirming the Board's decision. Thus,

we affirm the decision of the court of appeals in 2015AP1970,

and we affirm the order of the circuit court in 2016AP2528.18

¶35 DANIEL KELLY, J. did not participate.

By the Court.—The decision of the court of appeals is

affirmed, and the order of the circuit court is affirmed.

17
Because our review is of the Board's decision, we need
not specifically discuss or correct any statements by the
circuit court or the court of appeals that could be construed to
mean the injunction controls tax classification. Neither
opinion is published or precedential.
18
After briefing was complete, the parties filed a series
of motions in the weeks leading up to oral argument. In a
February 20, 2018 order, this court decided one motion and left
the others to be addressed during oral argument. None of these
pending motions were discussed during oral argument, and we
decline to address them further as our disposition does not
require it. Any outstanding motions are denied.

26
 No. 2015AP1970 & 2016AP2528.pdr

¶36 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). Land

must be classified as agricultural if its use is agricultural.

Fee v. Bd. of Review for Town of Florence, 2003 WI App 17, ¶12,

259 Wis. 2d 868, 657 N.W.2d 112. For the reasons I address more

fully below, the Board of Review did not make any findings in

regard to Mr. Thoma's use of his land. Instead, the erroneous

legal instructions of the Board's attorney drove their decision

to affirm the appraisal of Mr. Thoma's property. The Board's

attorney said that due to an injunction in another case between

the Village of Slinger and Mr. Thoma that concerns the same

property as does the case now before the court, the Board could

no longer classify Mr. Thoma's vacant farm land as agricultural

because it was zoned residential and the injunction enforced

that zoning. The majority errs because it ignored the erroneous

advice given to the Board by its attorney and also because it

ignored the undisputed factual testimony of Assessor Grota that

Mr. Thoma's use qualified as agricultural use under taxation
laws, but that he was precluded from classifying it as

agricultural due to the circuit court injunction that prohibited

agricultural use of Mr. Thoma's property.

¶37 Because the Board of Review was given erroneous legal

advice from its attorney, and because the undisputed testimony

shows that Mr. Thoma's use qualified as an agricultural use,

Mr. Thoma has rebutted the presumption of correctness that is

accorded to an assessor's appraisal. Therefore, I would reverse
the Board of Review's classification decision and remand it to

1
 No. 2015AP1970 & 2016AP2528.pdr

the Board to reconsider its classification decision consistent

with Wis. Stat. § 70.32(2)(a) and Wis. Adm. Code § Tax

18.06(2)(d) (June 2015), and further testimony from Assessor

Grota. Accordingly, I respectfully dissent from the majority

opinion.1

I. BACKGROUND

¶38 Mr. Thoma purchased 62 acres of vacant farm land in

2004 and 2005. It was part of the Melius Farm. He then entered

into a development agreement with the Village of Slinger to

create Pleasant Farm Estates. At the June 23, 2014, Board of

Review hearing, Mr. Thoma explained that the parcel has been

classified as agricultural for taxation purposes, even though

all lots in the proposed development were zoned residential in

2007 or 2008.2 He said that taxation was "based on the use"

until 2014 when the assessor changed to residential

classification.3

¶39 At the hearing, Mr. Thoma explained the development

agreement with the Village. He said that the proposed
development had three phases. The Village required that 50% of

the lots in Phase I be sold before any lots in Phase II or Phase

III could be sold. There are 17 lots in Phase I and only two

1
My dissent addresses the majority opinion's decision on
certiorari review of the Board of Review's decision. I do not
address the majority opinion's affirmance of the circuit court's
order denying Mr. Thoma's motion for reconsideration because my
decision on certiorari review obviates the need to do so.
2
Hearing Tr. 37.
3
Id.

2
 No. 2015AP1970 & 2016AP2528.pdr

lots have been sold.4 Therefore, all lots in the proposed

development are not eligible to be purchased.

¶40 Mr. Thoma was asked why he believed that the tax

status had changed. He said, "We were taxed on agricultural use

and now we're taxed on a residential use."5

¶41 Assessor Grota was asked, "why the change from the

2013 where it's assessed at ag to the 2014 present?"6 Assessor

Grota responded, "I guess two things. One, . . . the Department

of Revenue's opinion was that use trumps requirements, so if the

land was being used in an acceptable agricultural manner, even

if there was a restriction that the property couldn't be used

for agriculture, I had to extend that. In – per Department of

Revenue opinion, the court order – or with a cease and desist

statement within it, would trump that use ability. As Pat

Janeske, the Regional Supervisor for the Department of

Revenue, . . . rendered that opinion in conference call."7

¶42 A Board member then asked, "So basically the change in

assessment was due to the Department of Revenue's decision?"8
The Board's attorney then inserted himself into the hearing and

answered the question that had been directed to Assessor Grota.

The attorney said, "What the assessor is saying that the

4
Id. at 30.
5
Id. at 34.
6
Id. at 58.
7
Id. at 58-59.
8
Id. at 60.

3
 No. 2015AP1970 & 2016AP2528.pdr

Department of Revenue has understood that – if a municipality

goes and gets a court order, they've satisfied – you know,

they've done all they can. If crop is still there and it's in

defiance of a court order, the municipality's done all they can

and – and the assessment will revert to the underlying zoning

rather than the – the ag[ricultural] use."9

¶43 The 2013 appraisal of Mr. Thoma's property had been

based on Assessor Grota's opinion that its use was agricultural.

However, in 2014, Assessor Grota believed that he could no

longer classify Thoma's property based on its use because the

injunction that affected his property prohibited agricultural

use of the land. Therefore, he appraised the property as

individual residential lots.

¶44 This change significantly affected the tax assessments

of all of the lots. To give a few examples, the 2013 appraisal

of $300 for tax parcel number V5-0815-001 increased to $48,300

for 2014.10 The 2013 appraisal of $100 for tax parcel number

V5-0815-057-008 increased to $35,400 for 2014.11 Of course the
new appraisals dramatically increased Mr. Thoma's tax

obligation.

¶45 When Board members continued to be concerned about

ignoring agricultural use because they understood that changing

the classification caused taxes to increase, the Board's

9
Id. at 60-61.
10
June 23, 2014 Hearing Ex. 4.
11
June 23, 2014 Hearing Ex. 3.

4
 No. 2015AP1970 & 2016AP2528.pdr

attorney doubled down on his erroneous instructions to the Board

and his explanation of Assessor Grota's appraisal. He said,

"Because there's a court order here, the state has told the

assessor that he can assess it as it is zoned and as it is

available for purchase, not as it is used."12 To which

explanation, Assessor Grota responded, "Exactly."13 However,

Mr. Thoma's attorney said "he's continued to maintain the ground

cover which is an ag[ricultural] use."14

¶46 As the Board's attorney was attempting to wind up the

hearing, again, a Board member wanted to be sure that she

understood Assessor Grota's opinion. "Are you saying then that

you feel that that was being used as agriculture, not just

ground cover maintenance?"15 To which Assessor Grota said, "I

believe that within Chapter Tax 18, which is what we should

follow as well as the guide put out by the Department of Revenue

for use – use value, that it had previous – well, it - it had

previously met those two burdens . . . to be assessed as

agricultural."16 As a further explanation, Assessor Grota said,
"Now the court order changed – changed the precedent then from

use to use didn't matter because it was being used illegally."17

12
Hearing Tr. 68.
13
Id.
14
Id. at 69
15
Id. at 70.
16
Id.
17
Id. (emphasis added).

5
 No. 2015AP1970 & 2016AP2528.pdr

¶47 The Board of Review voted 2 to 1 to accept Assessor

Grota's appraisal that classified all 62 acres as residential

property.18 Mr. Thoma appealed the Board's decision by

petitioning the circuit court for certiorari review. The

circuit court affirmed the Board of Review, as did the court of

appeals.

II. DISCUSSION

¶48 This case presents procedurally as a certiorari review

of the Board of Review's decision pursuant to Wis. Stat.

§ 70.47(13). As such, we review the record from the Board of

Review. Wood v. City of Madison, 2003 WI 24, ¶12, 260 Wis. 2d

71, 659 N.W.2d 31. Where the factual basis for a board's

decision is unclear, the case should be remanded to the board

for specific findings of fact and conclusions of law. Edmonds

v. Bd. of Fire & Police Comm'rs, 66 Wis. 2d 337, 346-48, 224

N.W.2d 575 (1975).

A. Standard of Review

¶49 Certiorari review is limited to four issues:
(1) whether the tribunal stayed within its jurisdiction;

(2) whether the tribunal proceeded under a correct theory of

law; (3) whether the tribunal's action was arbitrary,

oppressive, or unreasonable, representing its will and not its

judgment; and (4) whether the evidence was such that it might

18
At the commencement of the hearing, Mr. Thoma's lawyer
asked that the matter be adjourned, due to a recent death
causing Mr. Thoma to be in attendance at a funeral that
afternoon. The Board's lawyer said, "I think this matter has to
proceed now." The Board then denied the request to reschedule.

6
 No. 2015AP1970 & 2016AP2528.pdr

reasonably have made the determination that it made. FAS, LLC

v. Town of Bass Lake, 2007 WI 73, ¶8, 301 Wis. 2d 321, 733

N.W.2d 287. Whether a tribunal proceeded under a correct theory

of law is subject to our independent review. State ex rel

Ziervogel v. Washington Cty. Bd. of Adjustment, 2004 WI 23, ¶14,

269 Wis. 2d 549, 676 N.W.2d 401. It is only this second

component of certiorari review that is relevant to the case

before us.

B. Correct Theory of Law

¶50 The Board of Review must make its decision based on a

correct theory of law. If it does not, a reviewing court shall

set aside its decision. State ex rel Kesselman v. Bd. of Review

for Vill. of Sturtevant, 133 Wis. 2d 122, 127-28, 394 N.W.2d 745

(1986) (citing State ex rel Park Plaza Shopping Ctr., Inc. v.

Bd. of Review, 61 Wis. 2d 469, 475, 213 N.W.2d 27 (1973)).

Failing to make an appraisal on the statutory basis is an error

of law correctable on certiorari review. State ex rel Boostrom

v. Bd. of Review, 42 Wis. 2d 149, 156, 166 N.W.2d 184 (1969).
¶51 Wisconsin Stat. § 70.32(2)(a) states:

The assessor shall segregate into the following
classes on the basis of use . . . 1. Residential.
2. Commercial. 3. Manufacturing. 4. Agricultural.
5. Undeveloped. 5m. Agricultural forest. 6. Productive
forest land. 7. Other.
(Emphasis added). Section Tax 18.06(2) also helps focus the

inquiry for tax assessments. It provides:

For each legal description of property that
includes a parcel of agricultural land, the assessor
shall indicate on the property record card, by
acreage, the category of agricultural land.
Categories of agricultural land are the following:
7
 No. 2015AP1970 & 2016AP2528.pdr

(a) First grade tillable cropland.

(b) Second grade tillable cropland.

(c) Third grade tillable cropland.

(d) Pasture.

(e) Specialty land.
The Wisconsin Property Assessment Manual (WPAM), a statutorily

incorporated guide to appraisal of real estate, directs that the

"[d]etermination of agricultural status is based solely on

whether use of the parcel is agricultural in nature." WPAM at

11-10 (2014).

C. Erroneous Legal Instructions

¶52 Both Assessor Grota and the Board of Review's attorney

told the Board that use no longer mattered for tax appraisals.

For example, Assessor Grota told the Board that he "believe[d]

that within Chapter Tax 18, which is what we should follow as

well as the guide set out by the Department of Revenue for use –

use value, that it had previous – well, it - had previously met

those two burdens . . . to be assessed as agricultural. Now the

court order changed – changed the precedent then from use to use

didn't matter because it was being used illegally."19

Mr. Thoma's attorney had already said that "he's continued to

maintain the ground cover which is an ag[ricultural] use."20

¶53 The Board of Review's attorney also erroneously

instructed the Board on the law applicable to tax appraisals.

19
Hearing Tr. 70 (emphasis added).
20
Id. at 69.

8
 No. 2015AP1970 & 2016AP2528.pdr

He said, "Because there's a court order here, the state has told

the assessor that he can assess it as it is zoned as it is

available for purchase, not as it is used."21

¶54 Property Records for Village of Slinger, Washington

County, hearing exhibits 4 and 5, showed examples of Mr. Thoma's

property classified as "1st grade tillable" from 2008 until

2014, when it was changed to "residential." As one of the Board

members said, she drives by Mr. Thoma's property every day and

she has seen bailers bailing the hay that grew there and had

been cut.22

¶55 Therefore, at the Board of Review hearing, all were in

agreement that Mr. Thoma's use of the property was agricultural.

However, according to the instructions on the law from the

Board's attorney and according to Assessor Grota's opinion, use

no longer mattered. Zoning controlled classification. The

Board made no findings or conclusions in regard to use. That is

because use was not the focus of the Board of Review hearing,

although one would think that it were, to read the majority
opinion.23

¶56 Furthermore, how Mr. Thoma used the property was not

an issue for the Board of Review to decide because agricultural

use had been proved for this exact property in another case in

which the Village of Slinger and Mr. Thoma were parties. It was

21
Id. at 68.
22
Id. at 72.
23
Majority op., ¶¶2, 6, 8, 13, 21, passim.

9
 No. 2015AP1970 & 2016AP2528.pdr

proof of agricultural use that had resulted in the injunction

that everyone referred to at the hearing before the Board of

Review. The injunction prohibited further agricultural use of

this same property, and it was that same injunction and its

effect on Assessor Grota's appraisal that drove the decision of

the Board of Review. It did so because both the Board of

Review's attorney and Assessor Grota believed that zoning

trumped use, due to the injunction that the Village had obtained

to stop Mr. Thoma from using his property for agriculture.

¶57 That use was not an issue for the Board of Review is

clear from this exchange:

CHAIR GRUDZINSKI: I just have one for Mr. Grota.
Are you saying then that you feel that that was being
used as agriculture, not just ground cover
maintenance?

VILLAGE ASSESSOR GROTA: I believe that within
Chapter Tax 18, which is what we should follow as well
as the guide put out by the Department of Revenue for
use – use value, that it had previous – well, it – it
had previously met those two burdens – you know, to be
assessed as agricultural. Now the court order changed
– changed the precedent then from use to use didn't
matter because it was being used illegally in that –
you know, as part of that court order, so that changed
what would be normally use trumps.[24]
¶58 The Board of Review conscientiously followed the

instructions of its attorney and of Assessor Grota, who told

them that use didn't matter because there was an injunction that

prohibited agricultural use of Mr. Thoma's property and required

that the property be classified as residential. The advice they

24
Hearing Tr. 70.

10
 No. 2015AP1970 & 2016AP2528.pdr

were given was erroneous and caused the Board to operate on an

incorrect theory of law.

¶59 Use controls the classification of real estate for

purposes of taxation. Wis. Stat. § 70.32(2)(a). And, as Fee

explained, when a property should have been classified as

agricultural based on its use, but was not, the Board of Review

errs. Fee, 259 Wis. 2d 868, ¶1. Therefore, the Board's

decision must be reversed and the matter remanded to the Board

for further proceedings based on the legal principles that

actually control classification, i.e., the use of the property.

§ 70.32(2)(a).

III. CONCLUSION

¶60 The Board of Review was given erroneous legal advice

on which it based its decision. Accordingly, I would reverse

and remand the matter to the Board of Review to give the Board

the opportunity to consider Mr. Thoma's appeal under the correct

theory of law: use trumps zoning for tax appraisals. Wis.

Stat. § 70.32(2)(a).
¶61 I am authorized to state that Justice ANNETTE

KINGSLAND ZIEGLER joins this dissent.

11
 No. 2015AP1970 & 2016AP2528.pdr

1