Nudo Holdings, LLC v. Board of Review for the City of Kenosha

2022 WI 17

SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1618

COMPLETE TITLE: State of Wisconsin ex rel. Nudo Holdings, LLC,
Petitioner-Appellant-Petitioner,
v.
Board of Review for the City of Kenosha,
Respondent-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 395 Wis. 2d 261,952 N.W.2d 816
PDC No:2020 WI App 78 - Published

OPINION FILED: April 12, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 1, 2021

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Anthony G. Milisauskas

JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER,
C.J., and REBECCA GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:

ATTORNEYS:

For the petitioner-appellant-petitioner, there were briefs
filed by Paul W. Zimmer and O’Neil, Cannon, Hollman, DeJong &
Laing S.C., Milwaukee. There was an oral argument by Paul W.
Zimmer.

For the respondent-respondent, there was a brief filed by
Robert I. DuMez, Gino M. Alia, J. Michael McTernan and Alia,
DuMez & McTernan, S.C., Kenosha. There was an oral argument by
J. Michael McTernan.
 An amicus curiae brief was filed on behalf of the League of
Wisconsin Municipalities, Wisconsin Towns Association and
Wisconsin Association of Assessing Officers by Julie M. Gay and
Law Office of Julie M. Gay, Waukesha.

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

2
 2022 WI 17
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1618
(L.C. No. 2018CV896)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin ex rel. Nudo Holdings, LLC,

Petitioner-Appellant-Petitioner, FILED
v. APR 12, 2022
Board of Review for the City of Kenosha, Sheila T. Reiff
Clerk of Supreme Court
Respondent-Respondent.

HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined.
ROGGENSACK, J., filed a dissenting opinion, in which ZIEGLER,
C.J., and REBECCA GRASSL BRADLEY, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 BRIAN HAGEDORN, J. This is a property tax

classification case. The property at issue was mostly raw and

covered in underbrush, but also included several walnut and pine

trees. The assessor classified the property as residential.

Before the board of review, the landowner maintained the

property should be classified agricultural (and therefore
receive a lower tax rate). The board sustained the assessor's
 No. 2019AP1618

classification, which the circuit court and the court of appeals

affirmed.

¶2 Before us, the landowner contends the board did not

act according to law because the current use of the property met

the definition of agricultural, and the board's consideration of

prospective residential use was improper. The landowner further

argues the classification is not supported by sufficient

evidence. We hold: (1) The board acted according to law when

it understood that the land should be classified as agricultural

only if it is devoted primarily to agricultural use——meaning the

property is chiefly given to agricultural purposes; (2) The

board did not err when it considered the prospective residential

use of the property; and (3) The board's determination to

sustain the residential classification was supported by

sufficient evidence.

I. BACKGROUND

¶3 On September 11, 2017, Nudo Holdings, LLC (Nudo)
purchased an 8.9-acre parcel of wooded, unused land in the City

of Kenosha from Kenosha County for $100,000. Anthony Nudo, the

owner of Nudo Holdings, LLC, testified before the Board of

Review for the City of Kenosha (the Board) that he purchased the

property to develop it. The property was part of the St.

Peter's Neighborhood Plan——indicating the City saw its highest

and best use as residential. Indeed, the City was aware Nudo

planned to subdivide the property into as many as 18 residential
lots.
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¶4 At the time of purchase, the property was zoned A-2

agricultural, lacked access to sewer and water service, and

contained no habitable structures. It consisted mostly of

underbrush with pine and walnut trees scattered across the land.

The trees were not planted in rows; rather, they grew at random

on the property.

¶5 By January 1, 2018——the relevant timeframe for the

property assessment——Mr. Nudo testified that "a bit of tilling"

was done, but when pressed for more detail, stated only "not

much." Trails were cut on the property to reach the "walnut

groves" and the pine trees (described by Mr. Nudo as "Christmas

trees"). Mr. Nudo explained to the Board that he and his wife

walked the trails to harvest walnuts. Mr. Nudo gave the walnuts

to his mother, who distributed some to her clients and "made

some stuff" with the rest. Mr. Nudo also stated that the

property was registered as a livestock premises and that he

obtained permits and licenses to cut timber and keep up to 25

chickens on the property. But as of January 1, 2018, no pine
trees were cut, nor had any chickens or other livestock been

kept on the property.1

¶6 In 2018, the City assessor valued the property at

$89,800 ($10,000 per acre) and classified the property

residential for property tax purposes. The assessor testified

Mr. Nudo also explained that he purchased 300 trees from
1

the Wisconsin Department of Natural Resources in part to protect
the walnut trees on his property from the wind. However, these
trees were not planted until the spring of 2018——outside of the
relevant timeframe.

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 No. 2019AP1618

before the Board that he classified the property this way

because, "What we see is truly a -- a fairly, if not all raw

piece of land. I don't see any effort, any action, any plan in

terms of agricultural. This is a piece of land that has some

things growing on it." The assessor further explained:

There is extremely heavy underbrush on a majority of
this parcel, and it remains there. There is no
evidence of livestock being allowed or able to roam
free on the parcel. There is no evidence of furrows
or harvesting of anything and no evidence was
presented in terms of how much was done. There is no
evidence, and in fact, I believe, in one of the
documents we got, that any Christmas trees were taken
from this property or how many nuts were taken from
here.
The assessor asked Nudo for additional evidence of harvesting,

furrows, crops, or fencing, but Mr. Nudo indicated he did not

have any additional information to provide.

¶7 Nudo timely objected to the residential

classification, contending the property should be classified

agricultural. The Board unanimously sustained the assessor's

classification. Nudo petitioned for certiorari, and the circuit

court2 ordered the Board to reconvene and reconsider the

classification in light of our decision in Ogden.3 On remand,

2 The Honorable Anthony G. Milisauskas of the Kenosha County
Circuit Court presided.
3 In particular, the circuit court instructed the Board to
reconsider the classification in light of our conclusion "that a
business purpose is not required in order for land to be
classified as 'agricultural land' for property tax purposes."
State ex rel. Peter Ogden Fam. Tr. v. Bd. of Rev., 2019 WI 23,
¶46, 385 Wis. 2d 676, 923 N.W.2d 837.

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 No. 2019AP1618

the Board reconsidered and again sustained the assessor's

residential classification, this time by a vote of 4 to 1. Both

the circuit court and court of appeals affirmed the Board's

determination. State ex rel. Nudo Holdings, LLC v. Bd. of Rev.

for City of Kenosha, 2020 WI App 78, ¶1, 395 Wis. 2d 261, 952

N.W.2d 816. We granted Nudo's petition for review.

II. DISCUSSION

A. Challenging the Classification of Real Property

¶8 Property assessment for taxation purposes takes place

"as of the close of January 1 of each year." Wis. Stat. § 70.10

(2019-20).4 This assessment involves both valuation and

classification of property. Wis. Stat. § 70.32. Wisconsin law

requires the assessor to segregate land "on the basis of use"

into one of the following eight classifications: (1)

"Residential"; (2) "Commercial"; (3) "Manufacturing"; (4)

"Agricultural"; (5) "Undeveloped"; (6) "Agricultural forest";

(7) "Productive forest land"; and (8) "Other." § 70.32(2)(a).
Nudo's petition for certiorari challenges the Board's

determination to sustain the residential classification.

¶9 An aggrieved property owner like Nudo may file an

objection to an assessment with the municipal board of review.

Wis. Stat. § 70.47(7). When the board receives an objection

within the statutory time frame, the board sets a hearing.

All subsequent references to the Wisconsin Statutes are to
4

the 2019-20 version.

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 No. 2019AP1618

§ 70.47(7)-(8). At the hearing, the assessor is required to

"provide to the board specific information about the validity of

the valuation to which objection is made" and "provide to the

board the information that the assessor used to determine that

valuation." § 70.47(8)(h). The assessor's valuation is

entitled to a presumption of validity by the board, but "may be

rebutted by a sufficient showing by the objector that the

valuation is incorrect." § 70.47(8)(i). If the property owner

desires to challenge the board's decision, it may, among other

options, seek certiorari review by the circuit court.

§ 70.47(13); State ex rel. City of Waukesha v. City of Waukesha

Bd. of Rev., 2021 WI 89, ¶17, 399 Wis. 2d 696, 967 N.W.2d 460

(listing the three options for appeal).

¶10 This court sits in the same posture as the circuit

court, and therefore we review the Board's determination, not

that of the circuit court or court of appeals. Our review "is

limited to 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." State

ex rel. Collison v. City of Milwaukee Bd. of Rev., 2021 WI 48,

¶20, 397 Wis. 2d 246, 960 N.W.2d 1.

¶11 Nudo asserts that the Board's determination was not

according to law for two independent reasons and that it was not

supported by sufficient evidence.

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 No. 2019AP1618

B. According to Law

1. Devoted Primarily to Agricultural Use

¶12 Nudo first argues that the Board did not act according

to law because it improperly discounted the agricultural use

present on the property. Nudo contends that because those

activities were the only uses the property was put to, the

property was devoted primarily to agricultural use. That is

not, however, what the law says.

¶13 Wisconsin Stat. § 70.32(2)(c) provides two key

definitions that assist in determining whether Nudo's land could

be classified as agricultural. "'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." § 70.32(2)(c)1g. (emphasis added).

"Agricultural use" is also a defined term. Its meaning is

"defined by the department of revenue by rule and includes the

growing of short rotation woody crops, including poplars and

willows, using agronomic practices."5 § 70.32(2)(c)1i.
¶14 Following the statutory instruction to promulgate a

rule, the Department of Revenue defines "agricultural use" as

"any of the following":

(a) Activities included in subsector 111 Crop
Production, set forth in the North American Industry
Classification System (NAICS), United States, 1997,

5 The statute also defines "Agronomic practices"; it "means
agricultural practices generally associated with field crop
production, including soil management, cultivation, and row
cropping." Wis. Stat. § 70.32(2)(c)1k.

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 No. 2019AP1618

published by the executive office of the president,
U.S. office of management and budget.

(b) Activities included in subsector 112 Animal
Production, set forth in the North American Industry
Classification System, United States, 1997, published
by the executive office of the president, U.S. office
of management and budget.

(c) Growing Christmas trees or ginseng.
Wis. Admin. Code § Tax 18.05(1)(a)-(c) (July 2018).6

¶15 The administrative code goes on to explain what

assessors must look for when determining if land is devoted

primarily to agricultural use: "Land devoted primarily to

agricultural use shall typically bear physical evidence of

agricultural use, such as furrows, crops, fencing or livestock,

appropriate to the production season." Wis. Admin. Code § Tax

18.06(1). In addition, "Land devoted primarily to agricultural

use" in this chapter of the tax code "means 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." Wis. Admin. Code § Tax

18.05(4).

¶16 Another statute, Wis. Stat. § 70.32(1), requires

assessors to comply with the Wisconsin Property Assessment

Agricultural use also includes unimproved land subject to
6

or enrolled in certain state or federal easements or programs.
Wis. Admin. Code § Tax 18.05(1)(d).

All subsequent references to the Wis. Admin. Code ch. Tax
18 are to the July 2018 register date.

8
 No. 2019AP1618

Manual (WPAM) when assessing property.7 The WPAM in turn

provides further instructions on how to determine when land is

devoted primarily to agricultural use. In one particularly apt

example, it provides:

Since walnut trees do not produce walnuts until 10
years of age and maximum production does not occur
until 20 to 30 years of age, there may be instances
where agricultural use is questionable. If a stand of
walnut trees is in its early stages of development and
not producing walnuts, the assessor should evaluate if
the number of walnut trees is sufficient enough such
that it represents the land's primary use.
Additionally, the assessor should determine if there
is adherence to the walnut industry standards. The
following questions should assist an assessor in
determining adherence to the walnut industry
standards. Please note: This should not be construed
as an all-inclusive list.

 What is the number of walnut trees per acre?

 Are there other types of trees intermixed with
the walnut trees? And to what extent?

 What is the spacing between the trees?

 Were the trees thinned?

 Are the soil types conducive to walnut
production?

 Are the site characteristics conducive to walnut
production?

7 "Real property shall be valued by the assessor in the
manner specified in the Wisconsin property assessment
manual . . . ." Wis. Stat. § 70.32(1); see also State ex rel.
Collison v. City of Milwaukee Bd. of Rev., 2021 WI 48, ¶29, 397
Wis. 2d 246, 960 N.W.2d 1.

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 No. 2019AP1618

 Have measures been taken to ensure proper tree
growth, which can include tree pruning, weed
control, animal control, etc.?

 If the trees are producing walnuts, are the
walnuts being harvested?
1 Wisconsin Property Assessment Manual (WPAM) 14-19 (2017).8

¶17 Returning to the principal statutory question, in

order for land to be classified agricultural, and therefore

receive a potentially sizable tax break,9 the land must be

"devoted primarily to agricultural use." Wis. Stat.

§ 70.32(2)(c)1g.; Wis. Admin. Code § Tax 18.06(1). Admittedly,

some of the activity on Nudo's property could be described as

agricultural. Walnut farming is included in subsector 111 Crop

Production set forth in the NAICS 1997 publication as one kind

of "agricultural use."10 Wis. Admin. Code § Tax 18.05(1)(a).

8 All subsequent references to the WPAM are to the 2017
publication, https://www.revenue.wi.gov/documents/wpam17.pdf.
9 The general rule is that taxation must be uniform. Wis.
Const. art. VIII, § 1. However, "Taxation of agricultural land
and undeveloped land, both as defined by law, need not be
uniform with the taxation of each other nor with the taxation of
other real property." Id. Thus, certain classifications of
property change the valuation otherwise assigned to the property
under Wis. Stat. § 70.32(1). Agricultural land is "assessed
according to the income that could be generated from its rental
for agricultural use." § 70.32(2r). Agricultural forest land
and undeveloped land are "assessed at 50 percent of its full
value." § 70.32(4). Land classified residential is afforded no
discount; it is assessed at its full value determined under
§ 70.32(1).
10The NAICS is reproduced in full in the WPAM. See 1 WPAM
14-A-20.

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And "[g]rowing Christmas trees" can also constitute

"agricultural use." § Tax 18.05(1)(c).11

¶18 However, some agricultural use——even if it is the only

"use" the land is put to——does not mean the land is "devoted

primarily to agricultural use." Wis. Stat. § 70.32(2)(c)1g.;

Wis. Admin. Code § Tax 18.06(1). "[D]evoted primarily" is the

key phrase here. Being "devoted" to something means to be given

over to and committed to that thing.12 And "primarily" means

chiefly or mainly.13 As a matter of plain English, an

agricultural classification is only proper if the land is

chiefly given over to agricultural use.

¶19 This understanding is reflected in the administrative

rules and the WPAM. The administrative rules explain that land

devoted primarily to agricultural use often leaves physical

marks——"furrows, crops, fencing or livestock"——on the land.

Wis. Admin. Code § Tax 18.06(1). The land should bear witness

to its use in the prior production season, in whatever form that

evidence is demonstrated. Wis. Admin. Code §§ Tax 18.05(4),
18.06(1). And as the WPAM's specific instructions on walnut

As previously noted, Nudo obtained a license to keep up
11

to 25 chickens, but as of January 1, 2018, no chickens were kept
on the property. Therefore, Nudo was not engaging in activity
included in subsector 112 Animal Production set forth in the
NAICS. See Wis. Admin. Code § Tax 18.05(1)(b).

American Heritage Dictionary 512 (3d ed. 1992) ("1. To
12

give or apply (one's time, attention, or self) entirely to a
particular activity, pursuit, cause, or person. 2. To set apart
for a specific purpose or use: land devoted to mining.").
13 Id. at 1438 ("Chiefly; mainly.").

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 No. 2019AP1618

trees demonstrate, the existence of some walnut trees is not

enough. The WPAM tells the assessor to go further and "evaluate

if the number of walnut trees is sufficient enough such that it

represents the land's primary use," and determine "if there is

adherence to the walnut industry standards." 1 WPAM 14-19. So

minimal harvesting of walnuts, even in the absence of other

activity, generally will not by itself establish that land is

devoted primarily to agricultural use. If it did, even an empty

and otherwise unused piece of property with a solitary wild

raspberry bush harvested once a year would fit the bill.

¶20 Here, the Board correctly understood that whether the

property was "devoted primarily to agricultural use" looks to

whether the land is chiefly given over to agricultural use.

Just because the sole productive activities, however small,

could be described as agricultural does not mean the land's main

use was agricultural. The Board's determination in this regard

was according to law.

2. Prospective Residential Use

¶21 Nudo next argues that the Board did not act according

to law by considering prospective residential use when it

sustained the assessor's residential classification. In Nudo's

view, the residential classification violated the statutory

directive that property must be classified "on the basis of use"

because the land neither was nor imminently would be used for

housing. See Wis. Stat. § 70.32(2)(a). Nudo's interpretation
is incorrect.
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¶22 "Residential" property under the law "includes any

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.

(emphasis added). It is certainly true that no dwelling or

human abode was on the property at the time of the assessment.

But notably, this definition is inclusive, not comprehensive.

This is in contrast to the statutory definitions of every other

classification, each of which begin with the word "means,"

rather than "includes."14 Taking this distinction to mean what

it says, the "residential" classification includes, but is not

14 The definitions in Wis. Stat. § 70.32(2)(c) begin:

1d. "Agricultural forest land" means . . . .

1g. "Agricultural land" means . . . .

1i. "Agricultural use" means . . . .

1k. "Agronomic practices" means . . . .

1m. "Other," . . . means . . . .

2. "Productive forest land" means . . . .

3. "Residential" includes . . . .

4. "Undeveloped land" means . . . .

(Emphasis added.)

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limited to, land that currently has on it a "dwelling or other

form of human abode."15 § 70.32(2)(c)3.

¶23 Statutory history confirms the import of this

distinction.16 The definition of "residential" was created in

1986 and has remained unchanged since then. Compare 1985 Wis.

Act 153, § 12 with Wis. Stat. § 70.32(2)(c)3. The same act that

created the definition of "residential" also defined

"agricultural," "productive forest land," and "swampland or

wasteland." 1985 Wis. Act 153, § 12. While the definitions of

"productive forest land" and "swampland or wasteland" began with

"means," "agricultural" was defined as, "includes any body of

water on private premises that is used as a part of a private

fish hatchery licensed under s. 29.52." Id. (emphasis added).

The definition of "agricultural" was later repealed and the

definition of "agricultural land" was created to read,

"'Agricultural land' means land, exclusive of buildings and

improvements, that is devoted primarily to agricultural use, as

defined by rule." 1995 Wis. Act 27, § 3362F (emphasis added).
This change in language from "includes" to "means" confirms the

legislature's word choices here reflect a difference in

"When the legislature uses different terms in the same
15

act, we generally do not afford them the same meaning." State
ex rel. DNR v. Wis. Ct. of App., 2018 WI 25, ¶28, 380
Wis. 2d 354, 909 N.W.2d 114.

An inquiry into statutory history is part and parcel of a
16

plain meaning analysis. Fabick v. Evers, 2021 WI 28, ¶30 n.12,
396 Wis. 2d 231, 956 N.W.2d 856.

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 No. 2019AP1618

statutory meaning. This is no mere accident of legislative

drafting.

¶24 Therefore, by use of the word "includes," Wis. Stat.

§ 70.32(2)(c)3. contemplates that land other than the type

described in § 70.32(2)(c)3. could still be classified as

residential. Residential "use" is not, under any statutory

language, limited to property with habitable homes currently or

imminently on the property. This begs the question of what else

might fall within a residential classification.

¶25 Fortunately, we are not left without additional

direction. The WPAM——guidance that is required by law to be

given and followed (Wis. Stat. § 70.32(1))——tells us the

residential classification "includes vacant land in cities and

villages where the most likely use would be for residential

development." 1 WPAM 7-14. And when assessors are determining

whether vacant land should be classified residential, the

assessor is instructed to consider the following:

 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?

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 No. 2019AP1618

 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[?]
Id. at 12-1.

¶26 As these required considerations make clear, future

planned residential development is a permissible basis on which

to rest a residential classification. Just as by statute

residential use includes land where a human abode is currently

located (Wis. Stat. § 70.32(2)(c)3.), so too the statutory

command to follow the WPAM (§ 70.32(1)) means a residential

classification also "includes vacant land in cities and villages

where the most likely use would be for residential development"

and land where "residential use is reasonably likely." 1 WPAM

7-14 (emphasis added); id. at 12-1. Accordingly, when the law

says property must be classified "on the basis of use" on

January 1 of the assessment year, land has a current residential

"use" not only if human dwellings are present, but also if they

are reasonably likely or planned.17 The Board therefore acted

The dissent is premised on the faulty and unsupported
17

assumption that land planned for future residential development
cannot constitute current residential "use" for property tax
purposes. But the dissent points to no statutory language that
limits a residential classification in this way, and
conspicuously avoids giving any effect to the legislature's
choice to use "includes" and not "means" in its definition of a
residential classification. Resting on this error, the dissent
fashions a conflict between the statutes and the WPAM that does
not exist.

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 No. 2019AP1618

according to law when it considered the prospective residential

use of Nudo's property.

C. Supported by Sufficient Evidence

¶27 Finally, Nudo asserts the Board's determination to

sustain the residential classification was not supported by

sufficient evidence. On certiorari review, the test "for

sufficiency of the evidence is the substantial-evidence test."

Stacy v. Ashland Cnty. Dept. of Public Welfare, 39 Wis. 2d 595,

602, 159 N.W.2d 630 (1968). Perhaps misnamed in view of modern

parlance, the substantial evidence test is not a high bar.

"Substantial evidence is evidence of such convincing power that

reasonable persons could reach the same decision as the board."

Clark v. Waupaca Cnty. Bd. of Adjustment, 186 Wis. 2d 300, 304,

519 N.W.2d 782 (Ct. App. 1994). In light of our "highly

deferential" approach "to the board's findings, we may not

substitute our view of the evidence for that of the board." Id.

¶28 The evidence here comfortably meets this standard.
The Board heard evidence from both Mr. Nudo and the assessor.

Combined, this testimony established that the 8.9-acre property

consisted mostly of underbrush. It was essentially vacant and

raw with several walnut and pine trees scattered throughout.

Nudo purchased the property to develop it into residential lots.

And the property was in a neighborhood plan for future

development in the City of Kenosha. The evidence reflects that

any agricultural uses were minor and isolated, not the primary
use of the land. Taken together, reasonable persons could
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 No. 2019AP1618

certainly reach the same decision as the Board. The Board's

determination to sustain the residential classification was

supported by sufficient evidence.

III. CONCLUSION

¶29 Nudo challenges the Board's classification of the

property as residential. We conclude the Board acted according

to law when it looked for more than some minimal agricultural

use in evaluating whether the property was devoted primarily to

agricultural use, and when it considered the prospective

residential development of the property. Finally, the Board's

determination to sustain the residential classification was

supported by sufficient evidence. For these reasons, we affirm.

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

affirmed.

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¶30 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The

majority opinion errs because it fails to recognize and analyze

the connection between the relevant statutes and the relevant

administrative rule and how their connection bears on the

question of whether Nudo Holdings, LLC's property qualified for

an agricultural classification on January 1, 2018. Because I

conclude that an understanding of this connection shows that the

Board of Review incorrectly applied the law, which error the

majority affirms, I respectfully dissent.

I. BACKGROUND

¶31 Nudo Holdings, LLC purchased the subject property on

September 11, 2017, when it was zoned agricultural. On January

1, 2018, Kenosha reclassified the land as residential for

assessment appraisal purposes, on which Nudo was taxed.

¶32 Nudo objected to the reclassification and asked for a

hearing before the Kenosha Board of Review, claiming that the

assessor did not act according to law. At the hearing, he

explained that on January 1, 2018,1 the date for which
classification was determined, he had continued to use the

property agriculturally. He explained that there had been no

residential use of the property; it contained no access to sewer

or water service and no habitable structures. There was no

evidence presented that the property was "not suitable" for the

production of row crops.

1Property is valued as of January 1 of each calendar year.
Wis. Stat. § 70.10 ("The assessor shall assess all real and
personal property as of the close of January 1 of each year.").

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¶33 The records from hearings before the Board of Review

show that in 2017 Nudo ordered 300 pine trees to plant as wind-

breaks to protect 120 walnut trees. It shows that walnuts were

harvested in December of 2017; that Nudo had a timber cutting

notice approved on December 4, 2017; that permission to harvest

Christmas trees was obtained in 2017; that the state registered

livestock approval for the property on December 8, 2017.

¶34 Nudo owned the property for only 3.5 months before it

was reclassified as residential. Of those 3.5 months, two

months, November and December, were winter months when most

agricultural activities in Wisconsin are quiescent.

¶35 The Board of Review affirmed the assessor's decision;

the circuit court and the court of appeals affirmed as well.

The majority opinion, once again, affirms. All missed how

important January 1, 2018, is to a competent analysis of the

case before us, except for the thoughtful discussion in the

court of appeals dissent.2

II. DISCUSSION
A. Standard of Review

¶36 This case is before us on certiorari review of the

decision of the Board of Review. Wis. Stat. § 59.694(10).

Accordingly we review whether: (1) the Board remained within

its jurisdiction; (2) the Board acted according to law; (3) the

Board's action was arbitrary, oppressive or unreasonable and

represented its will and not its judgment; (4) the Board could

2State ex rel. Nudo Holdings, LLC v. Bd. of Rev. for City
of Kenosha, 2020 WI App 78, ¶38, 395 Wis. 2d 261, 952 N.W.2d 816
(Reilly, J. dissenting).

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reasonably make its determination based on the evidence

presented. FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶8, 301

Wis. 2d 321, 733 N.W.2d 287.

¶37 Although an assessor's valuation is entitled to a

presumption of correctness, Wis. Stat. § 70.49(2), the

classification of property underlying this assessment appraisal

derives from statutory and administrative rule interpretation.

Therefore, classification is a question of law wherein we

independently review the assessor's interpretation and

application of relevant statutes and administrative rules to

determine classification. Regency W. Apartments, LLC v. City of

Racine, 2016 WI 99, ¶22, 372 Wis. 2d 282, 888 N.W.2d 611.

B. Statutory and Administrative Rule Interpretation

¶38 Determining whether Nudo's property was lawfully

classified as residential requires us to interpret and apply

several statutes. We interpret statutes to determine what they

mean so they may be given their proper effect upon the facts

presented. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004
WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. We begin with the

statutory language, which we give its common, ordinary accepted

meaning unless it involves technical or specially-defined words

or phrases to which we give defined meanings. Id., ¶45.

¶39 Statutes should be read to give reasonable effect to

every word so that no word or phrase becomes surplusage.

Warehouse II, LLC v. DOT, 2006 WI 62, ¶16, 291 Wis. 2d 80, 715

N.W.2d 213. When statutory terms are capable of differing
reasonable interpretations they are ambiguous. Id., ¶17.

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¶40 This decision also involves the interpretation and

application of an administrative rule. Generally, we use the

same rules of construction and interpretation for administrative

rules as we do with statutes. Voces De La Frontera, LLC v.

Clarke, 2017 WI 16, ¶13, 373 Wis. 2d 348, 891 N.W.2d 803.

1. Wisconsin Stat. § 70.32

¶41 Correctly interpreting and applying Wis. Stat. § 70.32

is critical to this controversy. Section 70.32(2)(a)1. requires

the assessor to classify land on the basis of use, separate from

improvements. It provides:

(a) The assessor shall segregate into the
following classes on the basis of use and set down
separately in proper columns the values of the land,
exclusive of improvements, and, except for subds. 5.,
5m., and 6., the improvements in each class:

1. Residential.

2. Commercial.

3. Manufacturing.

4. Agricultural.

5. Undeveloped.

5m. Agricultural forest.

6. Productive forest land.

7. Other.
§ 70.32(2). Of the statutory classifications provided, the

parties have focused only on residential and agricultural.

Therefore, I will as well.

¶42 In the matter before us, classifications are based on
the use to which the land is placed as of January first of the

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taxation year. Wis. Stat. §§ 70.10, 70.32(2)(a) and Wis. Admin.

Code § Tax 18.05(4). The assessor classified Nudo's property as

residential.

¶43 Residential land is defined by statute. It "includes

any 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.

¶44 "Not suitable" is not a specially defined phrase, and

"suitable" is not a specially defined term. Therefore we use

common, acceptable definitions, as can be found in a dictionary.

Tele-Port, Inc. v. Ameritech Mobile Commc'ns, Inc., 2001 WI 261,

¶17, 248 Wis. 2d 846, 637 N.W.2d 782. Webster defines

"suitable" as "adapted to a use or purpose" and its antonym as

"unsuitable." Webster's New Collegiate Dictionary, 1165 (1974).

Webster defines "unsuitable" as "not fitting" or

"inappropriate." Id., 1283.

¶45 Employing those common definitions, there was no
testimony at the Board of Review hearings that Nudo's property

was "not fitting" or "inappropriate" for the production of row

crops. The assessor said only that it was largely brush

covered. He said nothing about the lack of suitability for the

production of row crops. Nudo said that he had cut paths in the

brush to access the walnut and Christmas trees and that he had

ordered 300 trees to plant as wind-breaks for the walnut trees.

¶46 It was undisputed that no dwelling or other building
sufficient for human occupancy existed on the property. In

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addition, Nudo testified that there was no sewer or water

service on the property, which would be necessary to begin to

make it suitable for home construction.

¶47 So what use had been made of Nudo's property that

supports its classification as residential when Wis. Stat.

§ 70.32(2)(a) requires that classification be based on use and,

in the dispute before us, use as of January 1, 2018? Wis. Stat.

§ 70.10; Wis. Admin. Code § Tax 18.05(4). The majority opinion

asserts that the Wisconsin Property Assessment Manual (WPAM),

which assessors are required to consult via § 70.32(1), permits

classifications based on possible prospective uses.3 However,

the majority opinion goes further than that. It concludes that

"Nudo's interpretation is incorrect" when he claims that

classifications must be "on the basis of use."4

¶48 While I of course agree that WPAM says what it says,

when WPAM conflicts with a statute, the statute controls.

Metro. Holding Co. v. Bd. of Rev., 173 Wis. 2d 626, 632-33, 495

N.W.2d 314 (1993). Here, there is an administrative rule, as
well as a statute, that drives the decision on classification

and the correct date for determining it, which is January 1,

2018 as I explain below.

¶49 The majority reasons that because the definition of

"residential" begins with the word, "includes," rather than the

word, "means," "the 'residential' classification includes, but

is not limited to, land that currently has on it a 'dwelling or

3 Majority op., ¶¶16, 25, 26.
4 Id., ¶21.

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other form of human abode.'"5 The majority concludes its

reasoning with "by the use of the word 'includes,' Wis. Stat.

§ 70.32(2)(c)3. contemplates that land other than the type

described in § 70.32(c)3. could still be classified as

residential."6

¶50 In addition, just as the majority's reasoning negates

the statutory requirement for a structure that could be used as

a human abode, it also ignores the statutory requirement that

residentially classified land is "not suitable for the

production of row crops." Wis. Stat. § 70.32(c)3. Setting land

outside of the residential classification if it could be used

for the production of row crops certainly meant something to the

legislature that drafted § 70.32(2)(c)3.

¶51 Furthermore, ignoring a criterion for land that cannot

be classified as residential makes the statutory requirement

about row crops mere surplusage, contrary to the rules by which

we construct statutes. Warehouse II, 291 Wis. 2d 80, ¶16.

Nevertheless, the majority opinion does not mention that
limitation on residential classifications, possibly because

there was no evidence presented to the Board of Review that

Nudo's land was not suitable for the production of row crops.

¶52 The date for classifying Nudo's property was January

1, 2018. Wis. Stat. § 70.10. As of that date, there was no

testimony that anyone had ever lived on Nudo's land; there was

no testimony that the land was not suitable for row crops. It

5 Id., ¶22.
6 Id., ¶24.

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appears the assessor chose residential classification,

notwithstanding Nudo's land's failure to satisfy the statutory

requirements of Wis. Stat. § 70.32(2)(c)3., believing that all

this could occur in the future because WPAM permitted future

uses. However, the assessor's selection ignores January 1,

2018, in regard to that date's relevance when considering a

dispute involving a claimed agricultural classification.

¶53 Let us begin by looking at the agricultural

classification and whether the law and the testimony support it.

Agricultural land is defined by statute and by administrative

rule. They work together to inform our understanding of the

parameters of the agricultural classification in this dispute.

¶54 Wisconsin Stat. § 70.32(2)(c)1g. provides that

"Agricultural land" is land "that is devoted primarily to

agricultural use." Section 70.32(2)(c)li. defines "Agricultural

use" as that use that is "defined by the department of revenue

by rule."

2. Wisconsin Admin. Code § Tax 18.05
¶55 Wisconsin Admin. Code § Tax 18.05 combines with the

statutory directives, as it contains important Department of

Internal Revenue definitions. It provides in relevant part:

(1) "Agricultural use" means any of the
following:

(a) Activities included in subsector 111 Crop
Production, set forth in the North American Industry
Classification System (NAICS) . . . .

(b) . . . .

(c) Growing Christmas trees or ginseng.

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. . . .

(4) "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 that is
incompatible with agricultural use on January 1 of the
assessment year.
§ Tax 18.05.

¶56 I follow the requirements of Wis. Admin. Code § Tax

18.05, which are directed by Wis. Stat. § 70.32(2)(c)li., to

determine whether Nudo's land was "devoted primarily to

agricultural use." The majority opinion makes up its own

definition of "devoted primarily to agricultural use" instead of

interpreting § 70.32(2)(c)li and § Tax 18.05 as required by the

rules of statutory interpretation.7 Section Tax 18.05(4)

provides that we determine whether the land was in "an

agricultural use" in the prior season and whether its use on

January 1 was "incompatible with agricultural use."

¶57 "Incompatible" is not a defined term in the

administrative rule. Because we generally apply the same rules

of construction to interpreting administrative rules as we apply

to statutes, I consult a dictionary for a plain meaning

definition of incompatible. Voces De La Frontera, 373 Wis. 2d

348, ¶13. "Incompatible" is defined as "incapable of

association because incongruous, discordant, or disagreeing;

unsuitable for use together because of undesirable chemical or

physiological effects." Webster's New Collegiate Dictionary,

581.

7 Id., ¶¶23, 24.

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¶58 Wisconsin Admin. Code § Tax 18.05(4) expressly

confirms that "January 1 of the assessment year," not some

future year, is the controlling date when evaluating a claimed

agricultural classification. Notwithstanding this clear

directive, the majority opinion is based on future use, not on

January 1, 2018.8 The majority opinion simply finds the plain

words of § Tax 18.05(4) inconvenient, so it ignores them.

¶59 Furthermore, Wis. Stat. § 70.10 connects with the

administrative rule to confirm the date on which claimed

agricultural classifications must be made. The classification

decision was an integral component of the assessment accepted by

the Board of Review; therefore, recognizing and understanding

this connection is critical to evaluating whether the Board of

Review's decision followed the law.

¶60 Statutory classification directives provide a level

playing field for citizens and municipalities because they

provide the process that both parties are to use in

classification disputes. When this court does not follow the
required date of classification set by statute and instead

affirms a classification decision at a date contrary to the

dates set out in Wis. Stat. §§ 70.109 and 70.32(2)(c)li10 and

contrary to Wis. Admin. Code § Tax 18.05(4),11 the court's

8 Id., ¶¶2, 24, 25, 26, 29.
9 "The assessor shall assess all real and personal property
as of the close of January 1 of each year." Wis. Stat. § 70.10.
10 "'Agricultural use' means agricultural use as defined by
the department of revenue by rule . . . ." Wis. Stat.
§ 70.32(2)(c)li.

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decision harms both the citizen and the municipality because its

decision changes the process the legislature created to resolve

classification disputes.

¶61 Nudo's land was owned by Kenosha County when he

purchased it on September 11, 2017. There were walnut trees and

Christmas trees growing on it then. Growing walnuts is a

subsector 111 Crop Production, set forth in the NAICS, and

therefore an agricultural use. Wis. Admin. Code § Tax

18.05(1)(a). Growing Christmas trees is also an agricultural

use. § Tax 18.05(1)(c).

¶62 Walnut trees do not bear fruit until they are

approximately 10 years of age. WPAM at 14-19. Nudo testified

that he harvested walnuts in 2017, so the trees were mature and

bearing fruit in the production season prior to his purchase.

¶63 Nudo also ordered 300 trees to plant as wind-breaks to

protect the walnut trees; he obtained permits to harvest

Christmas trees and to raise livestock. There was no testimony

that anything about his use of the property on January 1, 2018,
was incompatible with the agricultural use that occurred the

prior production season.

¶64 Instead, the uncontradicted testimony showed Nudo's

use of the land was similar to the agricultural use to which it

was placed in the prior production season. He cut paths to more

"'Land devoted primarily to agricultural use' means land
11

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." Wis. Admin. Code
§ Tax 18.05(4).

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easily get to the walnut trees, ordered trees to plant as wind-

breaks for the walnuts, obtained permits to raise cattle and

obtained needed approvals to cut Christmas trees. There was no

testimony that any of these uses was incompatible with

agricultural use of the land.

¶65 Wisconsin Stat. §§ 70.10, 70.32(2)(c)li. and Wis.

Admin. Code § Tax 18.05(4) connect to require the claimed

agricultural use be evaluated as of January 1, 2018. The Board

of Review relied on some potential future use due to the

recommendation of the assessor. The assessor relied on a

statement from WPAM. However, for this dispute, employing a

future use conflicts with both statutes and the administrative

code. Failing to follow what they direct and relying on WPAM is

an error of law. Metro. Holding Co., 173 Wis. 2d at 632-33.

¶66 The majority errs in the same way when it relies on

WPAM's guidance that an assessor can look forward into

prospective use when classifying property.12 When property for

which agricultural classification is claimed, January 1 of the
assessment year must be the classification date in order to

comply with Wis. Admin. Code § Tax 18.05(4), Wis. Stat. §§ 70.10

and 70.32(2)(c)1i. Ignoring January 1 as the dispositive date,

is in conflict with both the administrative code and statutes.

As we long ago explained, when WPAM and statutes conflict,

statutes control. Id.

III. CONCLUSION

12 Majority op., ¶¶25, 26.

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¶67 The majority opinion errs because it fails to

recognize and analyze the connection between the relevant

statutes and the relevant administrative rule and how that

connection bears on the question of whether Nudo Holdings, LLC's

property qualified for an agricultural classification on January

1, 2018. Because I conclude that an understanding of this

connection shows that the Board of Review incorrectly applied

the law, which error the majority affirms, I respectfully

dissent.

¶68 I am authorized to state that Chief Justice ANNETTE

KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this

dissent.

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