2019 WI 23
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP516
COMPLETE TITLE: State of Wisconsin ex rel. The Peter Odgen
Family Trust of 2008 and The Therese A. Mahoney-
Ogden Family Trust of 2008,
Petitioners-Appellants,
v.
Board of Review for the Town of Delafield,
Respondent-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 381 Wis. 2d 161,911 N.W.2d 653
PDC No: 2018 WI APP 26
OPINION FILED: March 14, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 5, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Kathryn W. Foster
JUSTICES:
CONCURRED: DALLET, J. concurs, joined by A.W. BRADLEY, J.
(opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-respondent-petitioner, there were briefs
filed by R. Valjon Anderson, and Municipal Law & Litigation
Group, S.C., Waukesha. There was an oral argument by R. Valjon
Anderson.
For the petitioners-appellants, there was a brief filed by
Paul W. Zimmer, and O’Neil, Cannon, Hollman, DeJong & Laing
S.C., Milwaukee. There was an oral argument by Paul W. Zimmer.
An amicus curiae brief was filed on behalf of Wisconsin
Realtors Association, Wisconsin Builders Association, and NAIOP-
WI by Thomas D. Larson, Madison.
An amicus curia brief was filed on behalf of Wisconsin Farm
Bureau Federation, Cooperative and Waukesha County Farm Bureau
by H. Dale Peterson, John H Laubmeier, and Stroud, Willink &
Howard, LLC, Madison.
2
2019 WI 23
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP516
(L.C. No. 2016CV1707)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. The Peter Odgen
Family Trust of 2008 and The Therese A.
Mahoney-Ogden Family Trust of 2008,
Petitioners-Appellants, FILED
v. MAR 14, 2019
Board of Review for the Town of Delafield, Sheila T. Reiff
Clerk of Supreme Court
Respondent-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed and
cause remanded.
¶1 SHIRLEY S. ABRAHAMSON, J. In 2016, the Board of
Review for the Town of Delafield reclassified two lots of land
owned by The Peter Ogden Family Trust of 2008 and The Therese A.
Mahoney-Ogden Family Trust of 2008 from "agricultural land" to
"residential." This reclassification resulted in a significant
increase in property tax owed for the two lots. The Board
No. 2017AP516
believed that to qualify for the "agricultural land"
classification, the land must be farmed for a business purpose.1
¶2 The Ogdens sought certiorari review, and the Circuit
Court for Waukesha County, Kathryn W. Foster, Judge, sustained
the Board's reclassification of the land as "residential."
¶3 The court of appeals reversed the circuit court,
holding that a business purpose was not necessary for land to be
classified as "agricultural land" for property tax purposes.2
"Because the assessor's determination of the appropriate
classification was driven by his erroneous understanding of the
law[,]" the court of appeals ordered the circuit court to remand
the cause to the Board to "assess the Trust property anew in a
manner that is not inconsistent with" the court of appeals'
decision.3
¶4 We affirm the decision of the court of appeals.
¶5 We agree with the court of appeals that a business
purpose is not required in order for land to be classified as
"agricultural land" for property tax purposes.
1 The Board members reached a tie vote with regard to
whether the Assessor's reclassification should be overturned or
sustained, and as a result, the reclassification stood.
2 State ex rel. Peter Ogden Family Trust of 2008 v. Bd. of
Review, 2018 WI App 26, 381 Wis. 2d 161, 911 N.W.2d 653.
3 Id., ¶25.
2
No. 2017AP516
¶6 Based on the undisputed evidence presented to the
Board,4 the two lots at issue are entitled to be classified as
"agricultural land" as a matter of law.
¶7 Accordingly, we remand the cause to the Board for the
limited purpose of affixing a value to the two lots that we
conclude are entitled to be classified as "agricultural land."
I
¶8 The Ogdens own three adjacent lots of land in the Town
of Delafield. Only two of those lots are at issue in the
instant case.5 The smaller of the two lots is 4.6 acres, and the
larger of the two is 7.76 acres.
¶9 From 2012 through 2015, the two lots were classified
as "agricultural land" and "agricultural forest land."6 When the
4Neither party asks this court to remand the cause to the
Board to re-determine whether the proper classification is
"residential" or "agricultural land." The Board argues that we
should classify the two lots as "residential" as a matter of
law, while the Ogdens argue that we should classify the two lots
as "agricultural land" as a matter of law.
We agree with the parties that based on the record in the
instant case, the appropriate classification of the two lots may
be determined as a matter of law.
5The third lot contains the Ogdens' residence, and the
Ogdens do not dispute this lot's classification as
"residential."
6Much of the smaller lot and a portion of the larger lot
contain untillable forest land. From 2012 to 2015, during which
time the portions of the lots being farmed by the Ogden's were
classified as "agricultural land," the wooded portions of the
lots were classified as "agricultural forest land."
(continued)
3
No. 2017AP516
two lots were classified as "agricultural land" in 2015, the
assessed value of the lots was $17,100. In 2016, however, tax
assessor Judson Schultz reclassified the two lots as
"residential." When classified as "residential," the assessed
value of the lots jumped to $886,000. Thus, the
reclassification of the two lots from "agricultural land" to
"residential" resulted in a significant increase in property tax
owed by the Ogdens for the two lots. The Ogdens filed an
objection to the Assessor's reclassification with the Board, and
an evidentiary hearing was held.
¶10 At the hearing, the Ogdens maintained that the two
lots should continue to be classified as "agricultural land."
Peter Ogden testified that the two lots were primarily used to
harvest apples and hay for food and fiber and to grow Christmas
trees. He explained that he grew apple trees on approximately
one acre of the smaller lot. On the larger lot, Mr. Ogden
testified that he grew Christmas trees on approximately four to
five acres. He testified that the larger lot also contains a
three-acre hayfield. Mr. Ogden testified that a barn was built
The parties agree that if the relevant portions of both
lots are classified as "agricultural land," then the wooded
portions would necessarily be classified as "agricultural forest
land," but if the relevant portions are classified as
"residential," then the wooded portions would not be classified
as "agricultural forest land." See Wis. Stat.
§ 70.32(2)(c)1d.a.
We agree with the parties, and therefore, we do not further
discuss the issue.
4
No. 2017AP516
on the smaller lot and presented a Certified Survey Map that
showed a second proposed barn on the larger lot. Mr. Ogden
concluded his testimony as follows:
In conclusion, growing apple trees, Christmas trees
and alfalfa, which is what I am doing on these two
pieces of land, should all be considered an
agricultural use as long as that is the primary use of
that land. As long as that is the primary use of that
land. That is the primary use of that land.
¶11 Mr. Ogden presented aerial photographs of the two lots
that showed the progression of the lots dating back to 2005.
The 2013 picture shows a green hayfield, and the 2015 picture
shows lines in the hayfield from when the hay was harvested.
Mr. Ogden also presented ground photographs of the two lots.
The pictures show apple trees and Christmas trees, each planted
in orderly rows and individually staked out.7 The ground
photographs also included several photographs of the pre- and
post-harvest hayfield. Mr. Ogden further presented over 100
pages of expense reports, invoices, receipts, equipment rental
agreements, and checks showing the Ogdens' farming expenses for
the years 2011 through 2016.8
7
Therese Mahoney-Ogden testified that she and her husband
staked out the trees because the Assessor told them to do so
when he first classified the two lots as "agricultural land" in
2012.
8While some of this documentation includes services
performed on the Ogdens' residential lot, most of the
documentation was for services performed on the two lots at
issue.
5
No. 2017AP516
¶12 The Ogdens called a local farmer, Lloyd Williams, as a
witness. Mr. Williams testified that he and Mr. Ogden have
"farmed [the lots] since 2012. We have plowed it. We tilled
it. . . . And if Mr. Ogden gets cattle some day, we will
hopefully work out a shared agreement where we can continue to
do this in the future." Mr. Williams testified on cross-
examination that he "[a]bsolutely, without a doubt" planted hay
in the Ogden's hayfield. He elaborated that the Ogden's land
had "extremely good soil" and that the Ogdens "fertilize it
properly." Mr. Williams explained that the three-acre hayfield
"produces 150 bales per acre," totaling approximately 450 bales
of hay from the entire field. Mr. Williams also reaffirmed
statements he made in a letter to Mr. Ogden dated three days
before the hearing. The letter was admitted into evidence at
the hearing and stated: "In 2012, we seeded alfalfa and brome
grass and used it for cattle feed. We have established a
beautiful hay field that we have continually harvested every
year. We will again be harvesting the hay crop in 2016 . . . ."
¶13 The Assessor also testified before the Board. The
Assessor explained the basis for his determination that the two
lots were no longer entitled to the "agricultural land"
classification:
Now, the issue is that the Ogdens may say well, they
have a tree orchard and they are doing it for ag use.
I can't really substantiate . . . whether [Ms.
Mahoney-Ogden] is doing it for personal or she is
doing it for actual agricultural economic benefit, I
can't determine that. And that is why I am seeking
and have asked for all of this documentation because——
6
No. 2017AP516
and the same goes for the trees, the Christmas tree
farm.
. . . .
Now, I am, okay, looking at this and going, okay, does
the property taxpayer carry on an activity like a
business. Because that is what ag use is about. Ag
use is really for farmers; right? It is about
farming.
And so, given that the physical evidence for me was
difficult to substantiate[9], I went to documentation.
And I mean, if you are going to be in ag use, I think
you should be held to the same standards as the
farmers are held to. And I am sure that [Mr.
Williams] files . . . a Schedule F profit and loss.
And I mean if I were running a business, I would.
. . . .
[T]here should be a relationship between [Mr. Ogden
and Mr. Williams] because they're [sic] supposed to be
a transaction going on, per the contract. So, there
is just a bad feeling that I got. You know, this is
actually being done because there is no doubt, okay,
there is a significant tax benefit that is going on
for [the Ogdens] to be able to get the ag use. . . . I
guess I was just looking for things to be much more
clear-cut, everything flowing through because [Mr.
Ogden] had set up this tree farm account. . . . I went
through and I looked at the receipts and I tabulated
the number of trees that the receipts were in there
for. And I mean, again, and if you are doing ag use,
you're doing this to generate an income. . . . Well,
if you are going to be in ag use, you're going to be
in business and you better be on top of it. I have my
9 The Assessor had previously testified that it may
sometimes be difficult to obtain physical evidence of
agricultural use because "when you have a pasture and somebody
cuts it, unless I am there, okay, to actually see it, I really
have a difficult time finding the physical evidence."
Although the Ogdens invited the Assessor to view the two
lots, the Assessor declined to do so.
7
No. 2017AP516
own business. . . . I expected as a business person as
somebody in ag use to be on top of it.
. . . .
And when I looked at the documentation, I just did not
get a good feeling. Me professionally that if
somebody looked behind me that they would look at this
and they would question whether this tree farm was
being done actually for agricultural reasons, to
generate a profit for business, or was it being done
to obtain significant property tax savings.
. . . .
You know, unfortunately, the ag use program you would
think it was really developed for the farmers. In
reality there are so many loop holes that people can
take advantage. If you truly knew what went on, you
would shake your head. . . . And I have called into
question things that, I guess, I felt professionally
that I was obligated to do. With that, in summary, I
just am going to go back to ag use is for farmers. Ag
use is for business. Okay. If you want to get into
it, okay, then you need to show that you are going to
actually be doing a business. . . . So, all things to
me just do not seem to be a business. It seems to be
an effort to make it look like a business.
. . . .
And I am——I want to make sure that if somebody looks
behind me, that I am coming up with the right judgment
on a situation. And I gave the, you know, Ogden the
benefit of the doubt because I let them in the ag
program. And understand somebody chooses to be in the
ag program. I don't force anybody. That is their
choice. I inform them of the consequences. I inform
them especially if they are taking residential land
and putting it in ag use that I am going to watch you
closely because I know what the significant tax
benefits are. You dot your T's, you cross your
things, there is nothing that I can do. Developers do
it all of the time. Okay. Farmers do it all of the
time with residential land for individuals. And there
is nothing that I can do as long as they do it
correctly. The Ogdens simply didn't do it correctly.
I am calling them. I can't again dispute that they
8
No. 2017AP516
have planting [sic] things, but I do not think it's
for ag use. I do not think it's for business reasons.
¶14 On cross-examination, the Assessor admitted that he
knew there were individually "staked out" apple and Christmas
trees planted "in clean rows" on the two lots. Nonetheless,
after doing some "soul searching," the Assessor concluded that
he did "not believe based on the documentation . . . that this
is ag use land."
¶15 In sum, the Assessor believed that he could not
conclusively determine whether the two lots were devoted
primarily to agricultural use based on physical evidence of
farming. He then asked the Ogdens for documentation that might
support an "agricultural land" classification for the two lots,
but because the documentation, in his view, did not sufficiently
show that the Ogdens "carr[ied] on [the] activity like a
business," the Assessor concluded that the two lots were not
entitled to be classified as "agricultural land."
¶16 During deliberations, Board member Edward Kranick
expressed that he had
[not] seen where it's necessary to really have a
business in all of these exhibits and in the guide for
the board of review. I have just seen that it's a
use, that it has to be devoted primarily to
agricultural use, and that it's being used in a way
for agricultural use.
. . . .
[T]here is——Christmas——there are trees that are
planted in a systemic [sic] way that appears to be in
the use to be used eventually once they mature to be
farmed and that the [hay is] being taken off and that
there are orchards. That is what I am hearing. If I
9
No. 2017AP516
am not hearing that or if that is not what other
people are hearing, please correct me or enlighten me.
¶17 The chairman of the Board, Paul Kanter, engaged in the
following exchange with counsel for the Board:
[Kanter]: As to farming, you would agree that it's
[sic] intent here is to protect a business concern,
not horticulture as our ordinance defines
horticulture . . . .
[Counsel]: There does need——Actually in the assessor's
manual it makes [a] distinction between gardens and
actual crop production. There does have to be some
kind of a commercial interest in order for it to be
separate from a personal garden where you're using it
yourself. You need to have some interest in actually
selling the product.
¶18 Board member Larry Krause stated that, in his view,
the two lots do "meet the definition, very loose definition, of
agricultural land." But, Mr. Krause added that "we are bound to
take the word of our assessor. . . . He has the final word."
¶19 Board member Billy Cooley expressed concern that the
Ogdens had "planted bird houses" in the hayfield resulting in a
slightly decreased hay yield.10 Mr. Cooley characterized the two
lots as a "gentleman's farm" befitting a horticulturalist, as
opposed to a "farming operation."
¶20 The Board's vote on whether to sustain the Assessor's
reclassification of the two lots resulted in a tie: Mr. Kanter
and Mr. Kranick voted against sustaining the Assessor's
reclassification of the two lots as "residential," while Mr.
10
Mr. Ogden testified that he installed birdhouses "around"
the hayfield, meaning around its perimeter, not in the middle of
it.
10
No. 2017AP516
Cooley and Mr. Krause voted in favor of sustaining the
Assessor's reclassification. Because of the tie vote, the
Assessor's decision to reclassify the two lots as "residential"
was sustained.
¶21 The Ogdens petitioned the Waukesha County Circuit
Court for certiorari review of the Board's decision. The
circuit court concluded that the two lots did not "pass the eye
test," and dismissed the Ogdens' petition.
¶22 The Ogdens appealed, and the court of appeals
reversed. The court of appeals concluded that a business
purpose was not necessary for land to be classified as
"agricultural land" for property tax purposes. The court of
appeals further concluded that because the assessor's
determination of the appropriate classification was driven by
his erroneous understanding of the law, the proper disposition
was to order the circuit court to remand the cause to the Board
in order to "assess the Trust property anew in a manner that is
not inconsistent with" the court of appeals' decision.11
II
¶23 The instant case arrives at this court for certiorari
review pursuant to Wis. Stat. § 70.47(13) (2015-16).12 In
certiorari review under § 70.47(13), "we review the Board of
Review's decisions, not the decisions of the circuit court or
11 Ogden Family Trust, 381 Wis. 2d 161, ¶25.
12All subsequent references to the Wisconsin Statutes are
to the 2015-16 version unless otherwise indicated.
11
No. 2017AP516
court of appeals, although we benefit from their analyses."13 We
are confined to "the record made before the board of review,"14
and our review is limited 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."15
¶24 Review in the instant case falls under the second
factor: the Ogdens claim that the Board did not act according
to law because it based its decision on the erroneous belief
that a business purpose was required in order for land to be
classified as "agricultural land" for property tax purposes.
Whether the Board acted according to law is a question of law
that we decide independently.16 Resolving this question requires
the interpretation of our statutes and administrative rules,
13
Thoma v. Village of Slinger, 2018 WI 45, ¶10, 381
Wis. 2d 311, 912 N.W.2d 56; see also Sausen v. Town of Black
Creed Bd. of Review, 2014 WI 9, 352 Wis. 2d 576, 843 N.W.2d 39.
14
Saddle Ridge Corp. v. Bd. of Review, 2010 WI 47, ¶36, 325
Wis. 2d 29, 784 N.W.2d 527.
15 Sausen, 352 Wis. 2d 576, ¶6 (footnote omitted).
16
Steenberg v. Town of Oakfield, 167 Wis. 2d 566, 571, 482
N.W.2d 326 (1992); Lloyd v. Bd. of Review, 179 Wis. 2d 33, 36,
505 N.W.2d 465 (Ct. App. 1993).
12
No. 2017AP516
which is also a matter of law that we decide independently of
the Board of Review, circuit court, and court of appeals.17
III
¶25 We conclude that when it based its decision on an
erroneous belief that a business purpose was required in order
for land to be classified as "agricultural land" for property
tax purposes, the Board did not act according to law.
¶26 Our analysis rests on the plain language of the
applicable statutes and administrative rules.
¶27 Our procedures for interpreting statutes are familiar,
and they are equally applicable to the interpretation of
administrative rules.18 "We begin with the statute's language
because we assume that the legislature's intent is expressed in
the words it used."19 "Statutory language is given its common,
ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning."20 If the statutory language
yields a plain meaning, "we ordinarily stop the inquiry."21
17
Orion Flight Servs., Inc. v. Basler Flight Serv., 2006 WI
51, ¶¶16-18, 290 Wis. 2d 421, 714 N.W.2d 130.
18 Id., ¶18; see also Wis. Stat. § 227.27(1).
19
State v. Reed, 2005 WI 53, ¶13, 280 Wis. 2d 68, 695
N.W.2d 315; see also State ex rel. Kalal v. Circuit Ct., 2004 WI
58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
20 Kalal, 271 Wis. 2d 633, ¶45.
21 Id.
13
No. 2017AP516
¶28 The Ogdens claim that the two lots are entitled to be
classified as "agricultural land." Wisconsin Stat.
§ 70.32(2)(c)1g. defines "[a]gricultural land" as "land,
exclusive of buildings and improvements and the land necessary
for their location and convenience, that is devoted primarily to
agricultural use."22
¶29 The statute further defines the term "agricultural
use" to mean "agricultural use as defined by the [D]epartment of
[R]evenue by rule and includes the growing of short rotation
woody crops, including poplars and willows, using agronomic
practices."23
¶30 The Department of Revenue, by rule, defines
"agricultural use" to include both "[a]ctivities included in
subsector 111 Crop Production, set forth in the North American
Industry Classification System (NAICS),"24 and "[g]rowing
Christmas trees or ginseng."25 "Activities included in subsector
22 Wis. Stat. § 70.32(2)(c)1g. (emphasis added).
23 Wis. Stat. § 70.32(2)(c)1i. (emphasis added).
24Wis. Admin. Code DOR § Tax 18.05(1)(a) (June 2015)
(emphasis added).
25Wis. Admin. Code DOR § Tax 18.05(1)(c) (June 2015)
(emphasis added).
14
No. 2017AP516
111 Crop Production," include "growing apples" and "growing
hay."26
¶31 As the court of appeals correctly emphasized, it is of
great import that the relevant statutes and administrative rules
refer to "growing" the relevant crops——here, Christmas trees,
apples, and hay——not marketing, selling, or profiting from
them.27
¶32 A business purpose is not required in order for land
to be classified as "agricultural land" for property tax
purposes. No statute, administrative rule, or case law supports
a business purpose requirement for the "agricultural land"
property tax classification.28 To require a business purpose for
land to be classified as "agricultural land" for property tax
purposes would require the court to impermissibly insert such a
26Office of Mgmt. & Budget, Exec. Office of the President,
North American Industry Classification System (NAICS), United
States, 1997, at 86, 90 (emphasis added),
https://www.census.gov/eos/www/naics/2017NAICS/2017_NAICS_Manual
.pdf.
27 Ogden Family Trust, 381 Wis. 2d 161, ¶6.
28
Indeed, the Board appears to have largely abandoned its
position that a business purpose is required in order for land
to be classified as "agricultural land."
The Board does make an undeveloped argument related to
estoppel that it raised for the first time before this court.
"As a general rule, we will not consider for the first time on
appeal an issue not raised in the circuit court, particularly
when, as here, the issue is undeveloped . . . ." The Lamar Co.,
LLC v. Country Side Rest., Inc., 2012 WI 46, ¶31 n.15, 340
Wis. 2d 335, 814 N.W.2d 159. We decline to address the Board's
undeveloped argument.
15
No. 2017AP516
limitation into a clear and unambiguous set of statutory
provisions and administrative rules.29
¶33 The plain language of the applicable statutes and
rules produces a clear and unambiguous meaning. If the land is
devoted primarily to "agricultural use" as defined by our
statutes and rules, that use need not be carried out for a
business purpose in order for the land to qualify as
"agricultural land" for property tax purposes.
IV
¶34 Ordinarily, if the court "finds any error in the
proceedings of the board which renders the assessment or the
proceedings void, it shall remand the assessment to the board
for further proceedings in accordance with the court's
determination . . . ."30
¶35 Neither party urges this court to remand the cause to
the Board to re-determine the proper classification of the two
lots.
¶36 The evidentiary record before the Board conclusively
shows that the two lots are "devoted primarily to agricultural
use," and thus, are entitled to be classified as "agricultural
land."
29
See Lincoln Sav. Bank, S.A. v. DOR, 215 Wis. 2d 430, 446,
573 N.W.2d 522 (1998).
30
Wis. Stat. § 70.47(13); Saddle Ridge, 325 Wis. 2d 29, ¶41
n.22; see also Nankin v. Village of Shorewood, 2001 WI 92, ¶21,
245 Wis. 2d 86, 630 N.W.2d 141.
16
No. 2017AP516
¶37 The phrase "[l]and devoted primarily to agricultural
use" is defined by applicable provisions of the tax code. These
provisions of the tax code apply in the instant case because
they "provide definitions and procedures" used by "municipal
assessors to classify certain real property as
agricultural . . . ."31
¶38 The tax code, Wis. Admin. Code DOR § Tax 18.05(4),
defines "[l]and devoted primarily to agricultural use" to mean
"land in an agricultural use for the production season of the
prior year, and not in a use that is incompatible with
agricultural use on January 1 of the assessment year."32
¶39 Thus, a lot will constitute "land devoted primarily to
agricultural use" if, during the applicable time period, the lot
is primarily, that is, chiefly, put towards agricultural use.
¶40 In the instant case, the applicable "agricultural use"
to which the land is put is the growing of Christmas trees,
apples, and hay.33
¶41 Thus, the question presented is whether, during the
production season of 2015, the two lots were chiefly put towards
the growing of Christmas trees, apples, and hay; and whether, on
January 1, 2016, the two lots were put towards a use that was
31 Wis. Admin. Code DOR § Tax 18.04 (June 2015).
32 Wis. Admin. Code DOR § Tax 18.05(4) (June 2015).
33
See Wis. Admin. Code DOR §§ Tax 18.05(1)(a) & (1)(c)
(June 2015); NAICS Manual, supra note 26, at 86, 90.
17
No. 2017AP516
not incompatible with the growing of Christmas trees, apples,
and hay.
¶42 The evidentiary record confirms that the Ogdens met
their burden of proving that the Assessor's reclassification of
the two lots as "residential" was erroneous.34 The record
demonstrates that, during the production season of 2015, the two
lots were chiefly put towards the growing of Christmas trees,
apples, and hay, and on January 1, 2016, the two lots were not
put towards a use that was incompatible with the growing of
Christmas trees, apples, and hay.
¶43 As we detailed at length above,35 the Ogdens maintain a
barn and a one-acre apple orchard on the smaller of the two
lots, the remainder of the lot consisting of untillable forest.
The apples trees are individually staked out and planted in
clean rows. The larger of the two lots contains a four- to
five-acre Christmas tree farm and a three-acre hayfield. The
Christmas trees, like the apple trees, are individually staked
out and planted in clean rows. Mr. Williams testified at length
that he and Mr. Ogden have consistently planted and harvested
hay in the hayfield and planned to harvest the field again in
2016. Indeed, the Assessor admitted that he knew there were
apple and Christmas trees growing on the property and that these
trees were "staked out" "in clean rows."
34
Thoma, 381 Wis. 2d 311, ¶10; see also Sausen, 352
Wis. 2d 576, ¶10.
35 See supra ¶¶9-13 and accompanying footnotes.
18
No. 2017AP516
¶44 The evidentiary record shows that the two lots are
"devoted primarily to agricultural use." Accordingly, we
conclude as a matter of law that the lots are entitled to be
classified as "agricultural land." Remand for the purpose of
re-determining the proper classification is unnecessary in the
instant case.
¶45 However, the Board is tasked with affixing a value to
the two lots. For that limited purpose, we remand the cause to
the Board.
V
¶46 We conclude that a business purpose is not required in
order for land to be classified as "agricultural land" for
property tax purposes. So long as land is devoted primarily to
"agricultural use" as defined by our statutes and rules, that
use need not be carried out for a business purpose in order for
the land to qualify as "agricultural land" for property tax
purposes.
¶47 We further conclude that, under the circumstances of
the instant case, the record conclusively demonstrates that the
two lots at issue are entitled to be classified as "agricultural
land." Therefore, we remand the cause to the circuit court with
instructions that the circuit court order the Board: (1) to
overturn the Assessor's assessment and classify the appropriate
portions of the two lots as "agricultural land" and
"agricultural forest land"; and (2) to affix a valuation to the
two lots.
19
No. 2017AP516
By the Court.—The decision of the court of appeals is
affirmed and the cause is remanded to the circuit court.
20
No. 2017AP516.rfd
¶48 REBECCA FRANK DALLET, J. (concurring). I agree with
the majority that a business purpose is not required for land to
be classified as "agricultural land" for property tax purposes
and that the decision of the court of appeals should therefore
be affirmed. I disagree, however, with the majority's
conclusion that this court may classify the two lots at issue as
"agricultural land" as a matter of law.
¶49 The statute governing this court's review of the
instant case states, in relevant part:
If the court on the appeal finds any error in the
proceedings of the board which renders the assessment
or the proceedings void, it shall remand the
assessment to the board for further proceedings in
accordance with the court's determination and retain
jurisdiction of the matter until the board has
determined an assessment in accordance with the
court's order.
Wis. Stat. § 70.47(13) (emphasis added).
¶50 The statute is unambiguous. The majority determined,
and I agree, that the Board of Review for the Town of Delafield
acted in error because it based its decision on the belief that
a business purpose was required in order to classify land as
"agricultural land" for property tax purposes. Pursuant to Wis.
Stat. § 70.47(13), the assessment is therefore void and must be
remanded to the Board for a new assessment, including a
redetermination of the appropriate classification for the two
lots.
¶51 An assessment begins by properly classifying the land
to be assessed. The assessment process, as described by the
Wisconsin Property Assessment Manual, requires real property to
1
No. 2017AP516.rfd
"first be classified by use and then be assigned a value."1
"Classification" of property is therefore not separate from its
"assessment." Instead, they are both part of the assessment
process which, in this case, is now void.
¶52 If there was any doubt about the meaning of Wis. Stat.
§ 70.47(13), one need only look at our cases interpreting this
statute. In Nankin v. Village of Shorewood, 2001 WI 92, ¶¶ 20-
21, 245 Wis. 2d 86, 630 N.W.2d 141, this court stated:
[T]he court may not conduct its own factual inquiry
and may not admit any new evidence. . . . The court
will not make an assessment of the property; instead,
if it finds any error that renders the assessment
void, the court must set aside the assessment and
remand to the board for further proceedings.
(Emphasis added.)
Further, in Waste Mgmt. of Wisconsin, Inc. v. Kenosha Cty. Bd.
of Review, 184 Wis. 2d 541, 566, 516 N.W.2d 695 (1994), we
emphasized that:
A court's function is not to make an assessment
of the real estate or to substitute its judgment for
that of a board of review. Instead, a court's duty is
to set aside a board of review's determination if it
finds upon the undisputed evidence that the assessment
was not established in accordance with [Wis. Stat. §]
70.32(1) . . . .
¶53 By declaring as a matter of law that the two lots are
entitled to be classified as "agricultural land" for property
tax purposes, the majority exceeds the statutorily limited
11 Wisconsin Property Assessment Manual (2015) at 1-10; see
also Wis. Stat. § 70.32(1): "Real property shall be valued by
the assessor in the manner specified in the Wisconsin property
assessment manual . . . ."
2
No. 2017AP516.rfd
judicial review procedures applicable to certiorari review. As
we have previously declared: "[o]n certiorari review, a court
does not retry the facts . . . ." Sausen v. Town of Black Creek
Bd. of Review, 2014 WI 9, ¶ 46, 352 Wis. 2d 576, 843 N.W.2d 39.
As noted by the court of appeals, the record below includes an
abundance of testimony regarding whether apple trees, pine trees
intended to serve as Christmas trees, and hay were in fact
planted and growing on the Ogden's property. See State ex rel.
Peter Ogden Family Trust of 2008 v. Board of Review for Town of
Delafield, 2018 WI App 26, ¶ 25, 381 Wis. 2d 161, 911 N.W.2d
653. This court may not, as the Board and the Ogdens request,
review the evidentiary record before the Board and substitute
itself as the fact finder as to whether the land was "devoted
primarily to agricultural use."2 This is the job of the Board.
¶54 We have found an error in the Board's proceedings that
voids the assessment. Accordingly, we are required to remand to
the circuit court with instructions to remand to the Board to
reassess the two lots anew, a process that includes both
classification of property and assignment of a property's value.
¶55 For the foregoing reasons, I concur.
¶56 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurrence.
2
As noted by the majority, the Board and the Ogdens both
ask the court to review the record and classify the two lots as
a matter of law. Majority op., ¶ 6 n.4. The Board asks us to
classify the two lots as "residential" while the Ogdens assert
that we should classify the two lots as "agricultural land."
Id.
3
No. 2017AP516.rfd
4
No. 2017AP516.rfd
1