Frank J. Sausen v. Town of Black Creek Board of Review

2014 WI 9

SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP3015
COMPLETE TITLE: Frank J. Sausen,
Petitioner-Appellant-Petitioner,
v.
Town of Black Creek Board of Review,
Respondent-Respondent.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(No cite)

OPINION FILED: February 19, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 4, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Michael W. Gage

JUSTICES:
CONCURRED: PROSSER, J., concurs. (Opinion filed.)
ROGGENSACK, J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the petitioner-appellant-petitioner, there were briefs
by R. George Burnett, T. Wickham Schmidt, and Conway, Olejniczak
& Jerry, S.C., Green Bay, and oral argument by R. George
Burnett.

For the respondent-respondent, there was a brief by Michael
C. Menghini and Herrling Clark Law Firm Ltd., Appleton, and oral
argument by Michael C. Menghini.
2014 WI 9
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP3015
(L.C. No. 2010CV396)

STATE OF WISCONSIN : IN SUPREME COURT

Frank J. Sausen,

Petitioner-Appellant-Petitioner,
FILED
v.
FEB 19, 2014
Town of Black Creek Board of Review,
Diane M. Fremgen
Respondent-Respondent. Clerk of Supreme Court

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

¶1 SHIRLEY S. ABRAHAMSON, C.J. This is a review of an
unpublished decision of the court of appeals affirming an order

of the circuit court for Outagamie County, Michael W. Gage,

Judge.1 In a certiorari review, the circuit court affirmed the

Town of Black Creek Board of Review's assessment of taxpayer

Frank J. Sausen's real property for purposes of real estate

1
Sausen v. Town of Black Creek Bd. of Review, No.
2010AP3015, unpublished slip op. (Wis. Ct. App. Nov. 6, 2012).
No. 2010AP3015

taxation.2 The court of appeals summarily affirmed the order of

the circuit court. We affirm the decision of the court of

appeals.

¶2 The issue presented is whether the town board of

review erred in refusing to lower the assessment of the

taxpayer's real property. The town assessor valued the property

at $27,500, classified the property as "productive forest land,"

and assessed the property at $27,500. The taxpayer does not

challenge the assessor's valuation of the property. The

taxpayer challenges the assessment on the ground that the

assessor's classification of the property is erroneous.

¶3 The assessor's classification of the property directly

affects the assessment in the present case: Property classified

as "productive forest land" under Wis. Stat. § 70.32(2)(a) and

as "undeveloped land" is assessed at 50 percent of its full

value.4 The taxpayer claims that the board should change the
2
Wis. Stat. § 70.47(13) ("Except as provided in this
subsection and in ss. 70.85 and 74.37, appeal from the
determination of the board of review shall be by an action for
certiorari . . . .").
3
All subsequent references to the Wisconsin Statutes are to
the 2011-2012 version unless otherwise noted.
4
Wis. Stat. § 70.32(4) ("[U]ndeveloped land shall be
assessed at 50% of its full value . . . .").

The Wisconsin Property Assessment Manual at 12-2 (rev. eff.
1/09) advises: "After determining the full value of the
'Undeveloped land' in accordance with sec. 70.32(1), state case
law, and professionally accepted appraisal practices, the value
is reduced by 50% under sec. 70.32(4)."
2
No. 2010AP3015

classification of the property to "undeveloped land" under Wis.

Stat. § 70.32(2)(c)4. and that the property, properly classified

as undeveloped land, should be assessed at $13,750, that is, at

50 percent of the full value of $27,500.

¶4 The taxpayer in the present case appeals a

determination of the board of review under Wis. Stat.

§ 70.47(13), which provides that an "appeal from the

determination of the board of review shall be for an action for

certiorari . . . ."5 Accordingly, this court's review of the

The Manual is relevant to our discussion because the
legislature has instructed that the Manual sets forth
"guidelines" and is published by the Department of Revenue to
"discuss and illustrate accepted assessment methods, techniques
and practices with a view to more nearly uniform and more
consistent assessments of property at the local level." Wis.
Stat. § 73.03(2a).

The Manual is cited for its persuasive value; it cannot
supersede the statute.
5
A taxpayer may challenge an assessment under other
statutes.

Section 70.85 allows a taxpayer to challenge an assessment
by filing with the Department of Revenue. "Appeal of a
determination of the department of revenue shall be by an action
for certiorari in the circuit court . . . ." Wis. Stat.
§ 70.85(4)(c).

Section 74.37 governs a taxpayer's claim in court to
recover a general property tax imposed because the assessment of
property was excessive. The court proceeding is not a
certiorari review; it is a de novo proceeding. In a Wis. Stat.
§ 74.37 court proceeding, "the assessor's assessment is presumed
correct if the challenging party does not present significant
contrary evidence." Bloomer Housing Ltd. P'ship v. City of
Bloomer, 2002 WI App 252, ¶11, 257 Wis. 2d 883, 653 N.W.2d 309.

3
No. 2010AP3015

board's determination of the assessment and classification of

the property is by certiorari review.

¶5 In certiorari review, this court reviews a decision of

the board of review under Wis. Stat. § 70.47(13), not the

decisions of the circuit court or court of appeals. This court

reviews a decision of the board of review in the same manner as

the circuit court and court of appeals, benefiting from their

analyses. Waste Mgmt. of Wis., Inc. v. Kenosha Cty. Bd. of

Review, 184 Wis. 2d 541, 554, 516 N.W.2d 695 (1994).

¶6 In a certiorari review, the court is confined to

determining whether the board's actions were:

(1) within its jurisdiction;

(2) according to law;

(3) arbitrary, oppressive, or unreasonable and represented

its will and not its judgment; and

(4) supported by evidence such that the board might

reasonably make the order or determination in

question.6

¶7 The taxpayer's argument in the present case centers on

the fourth element of certiorari review, namely that the board's

determination to adopt the assessor's classification of the

property is not supported by evidence such that the board might

reasonably make the determination in question.

6
State ex rel. Stupar River LLC v. Town of Linwood Portage
Cnty. Bd. of Review, 2011 WI 82, ¶16, 336 Wis. 2d 562, 800
N.W.2d 468.

4
No. 2010AP3015

¶8 The taxpayer argues that he does not have the burden

to prove the classification and by extension, the assessment,

erroneous; that the board, the circuit court, and the court of

appeals imposed that burden of proof on him, erroneously

according a presumption of correctness to the assessor's

classification of the property; and that the board erroneously

concluded that the taxpayer did not carry his burden at the

board hearing. The taxpayer asks the court to remand the matter

to the board so that it can determine the correct assessment

without imposing on the taxpayer the burden of proving the

classification erroneous.

¶9 The statutes do not state whether the taxpayer

challenging an assessment (or classification) has the burden of

proving at the board hearing that the assessment (or

classification) is incorrect.

¶10 Upon considering the general rule of law regarding

burden of proof, the statutes, and the case law, we conclude

that the taxpayer challenging an assessment and classification

has the burden of proving at the board hearing that the

assessment and classification of property are erroneous; that

the taxpayer did not meet his burden of proof; and that the

board's determination to maintain the assessment is supported by

a reasonable view of the evidence. We therefore affirm the

decision of the court of appeals.

¶11 The following facts are not in dispute for purposes of
this review. Frank Sausen, the taxpayer, owned a 10-acre plot

5
No. 2010AP3015

of property at W5930 County Road A, parcel number 010064400, in

the Town of Black Creek, Outagamie County, Wisconsin. He used

the property for occasional hunting. The property has not been

used to produce commercial forest products.

¶12 In early November 2009, the taxpayer was notified that

the assessment of his property had increased from $11,000 in

2008 to $27,500 in 2009. The increase in assessment in 2009

resulted from an increase in the assessor's valuation of the

property, not a change in classification.7

¶13 Pursuant to Wis. Stat. § 70.32, the 2009 assessment

roll included the assessor's valuation of the property at

$27,500 as well as the assessor's classification of the property

as "low grade woods."

¶14 According to the Wisconsin Property Assessment Manual,

"low grade woods" is a permissible subset of "productive forest

land."8 "Productive forest land" is defined in Wis. Stat.

7
The assessment notice sent to the taxpayer states that the
"reason for change" was "[i]ncrease due to revaluation." Town
of Black Creek Board of Review, Notice of Assessment——Frank
Sausen, W5930 County Rd A, Black Creek WI 54106 (Nov. 4, 2009).
Additionally, the prior assessment of $11,000 is congruent with
the prior Town of Black Creek Land Values, which valued low-
grade forest at $1,100 per acre. The 2009 Town of Black Creek
Land Values valued low-grade forest at $2,750 per acre.
8
Within the classification of "productive forest land," as
provided by Wis. Stat. § 70.32(2)(c)2., the Wisconsin Property
Assessment Manual advises assessors to further create
subclassifications of productive forest land based on the
species, size, volume, and stocking density of trees on the
property. See 1 Wisconsin Property Assessment Manual at 12-3 to
12-10 (rev. eff. 1/09).

6
No. 2010AP3015

§ 70.32(2)(c)2. as "land that is producing or is capable of

producing commercial forest products and is not otherwise

classified under this subsection."9

¶15 Before we examine the issues of burden of proof and

the presumption of the correctness of the assessor's

classification of the property, we describe the statutory

methodology for creating an assessment for real estate taxation.

Wisconsin Stat. § 70.32 establishes a three-part methodology for

creating an assessment: First, an assessor assigns the property

a "valuation"——a value of the property to be assessed based on

the statutory requirements in Wis. Stat. § 70.32 and the

Wisconsin Property Assessment Manual.10 The Wisconsin Property

Assessment Manual at 7-7 through 7-8 explains that the

legislature has established value standards for different

classes of properties. Value may thus be affected by the

classification of the property.11

9
The Wisconsin Property Assessment Manual notes that
"[f]orested areas primarily held for hunting, trapping, or in
the operation of game preserves, should be classified as forest
unless clearly operated as commercial enterprise or exempt." 1
Wisconsin Property Assessment Manual, 5-45 (rev. eff. 1/09).
10
"Real property shall be valued by the assessor in the
manner specified in the Wisconsin property assessment manual
provided under s. 73.03(2a) . . . ." Wis. Stat. § 70.32(1).
11
For example, the value standard for agricultural land is
use value. 1 Wisconsin Property Assessment Manual 7-6 to 7-7
(rev. eff. 1/09).

7
No. 2010AP3015

¶16 Second, "the assessor, having fixed a value,"

"segregates" the property into a "class" under the statutes.12

The legislature has established eight classes: residential,

commercial, manufacturing, agricultural, undeveloped,

agricultural forest, productive forest land, and other. See

Wis. Stat. § 70.32(2).

¶17 Third, certain classes, notably agricultural forest

land and undeveloped land, are assessed at a percentage of full

value. Undeveloped land "shall be assessed at 50% of its full

value," with the value determined as set forth in the first step

described above. See Wis. Stat. § 70.32(4).

¶18 This case involves a challenge to an assessment, based

on a challenge to classification. Although Wis. Stat. § 70.32

sets forth a methodology for determining an assessment and uses

the word "assessment" often, the word is not defined. The words

"assessment" and "assessed value" are set forth in the glossary

of terminology in the Wisconsin Property Assessment Manual to

mean "a dollar amount assigned to the taxable property . . . by

the assessor for the purpose of taxation." The Manual states

that "the levy is applied directly against it [the assessment]

to determine the tax due."13

¶19 We begin our discussion of whether the taxpayer has

the burden of proof regarding the classification of property by

12
Wis. Stat. § 70.32(2)(a).
13
1 Wisconsin Property Assessment Manual G-1 (rev. eff.
1/09).

8
No. 2010AP3015

enunciating the general rule of law that "a party seeking

judicial process to advance his position carries the burden of

proof."14 A board of review is a quasi-judicial body to which

this general rule governing burden of proof applies.15 Applying

this rule to the present case means the taxpayer has the burden

of proof.

¶20 The taxpayer argues that this general rule governing

the burden of proof does not apply to him because the statute is

silent about the burden of proof and the statutes accord a

presumption of correctness only to the assessor's valuation, not

to the assessor's classification or assessment. The taxpayer

recognizes, as we do, that the concepts of burden of proof and

presumption of correctness are intertwined. "The concept of a

'presumption' is very familiar in the law, and it is closely

related to the concept of a 'burden.'" Ottman v. Town of

Primrose, 2011 WI 18, ¶50, 332 Wis. 2d 3, 796 N.W.2d 411.

¶21 Although our initial impression is that the general

rule assigning the challenging party the burden of proof applies

in the present case, we examine the statutes and the case law to

inform us further.

14
Loeb v. Bd. of Regents, 29 Wis. 2d 159, 164, 138
N.W.2d 227 (1965).
15
"A Board of Review is a quasi-judicial body that hears
evidence to adduce whether an assessor's valuation is correct."
Metro. Assocs. v. City of Milwaukee, 2011 WI 20, ¶7, 332
Wis. 2d 85, 796 N.W.2d 717 (2011) (citing Nankin v. Vill. of
Shorewood, 2001 WI 92, ¶18, 245 Wis. 2d 86, 630 N.W.2d 141).

9
No. 2010AP3015

¶22 Support for applying this general rule allocating the

burden of proof to the taxpayer challenger is found in Wis.

Stat. § 70.47(7). The statute places a burden on a taxpayer who

objects to a valuation to present evidence to the board in

support of the objection. This provision adopts the general

rule placing the burden of proof on the taxpayer to put on an

affirmative case in his or her favor before the board:

Wis. Stat. § 70.47(7)(a) Objections to
valuations. . . . No person shall be allowed in any
action or proceedings to question the amount16 or
valuation of property unless such written objection
has been filed and such person in good faith presented
evidence to such board in support of such objections
and made full disclosure before said board, under oath
of all of that person's property liable to assessment
in such district and the value thereof (footnote
added).
¶23 We acknowledge that the title of Wis. Stat.

§ 70.47(7)(a) is "Objections to valuations" and that (7)(a)

addresses a taxpayer's objection to a valuation. Nevertheless,

several subsections of § 70.47(7) refer to and govern challenges

to assessments. It is apparent from reading § 70.47(7) in its

entirety that the words "valuation" and "assessment" are being

used interchangeably in several instances.

¶24 Section 70.47 is a long statute with many subsections.

The section is entitled "Board of review proceedings" and

addresses board proceedings that involve both objections to the

16
The word "amount" has been interpreted to refer to the
amount of property, that is, part or all of the property. Clear
Channel Outdoor, Inc. v. City of Milwaukee, 2011 WI App 117, ¶8,
336 Wis. 2d 707, 805 N.W.2d 582.

10
No. 2010AP3015

valuation and objections to the assessment. Nothing in

§ 70.47(7) specifically addresses a board's proceedings when an

objection is made to a classification of property. Because an

assessment involves a classification as well as a valuation, it

makes sense to treat § 70.47(7) as governing a board's

proceedings regarding challenges to the valuation,

classification, or assessment unless the substance of a

provision requires a different approach. There is no apparent

reason to treat the taxpayer's burden of proof in a challenge to

classification differently from the taxpayer's burden of proof

in a challenge to a valuation or an assessment.

¶25 Furthermore, Wis. Stat. § 70.47(8) governing a hearing

before the board "in relation to the assessment" informs our

decision about the taxpayer's burden of proof on the issue of

classification. Section 70.47(8)(b) provides that the taxpayer

shall be heard first at the board hearing. The party with the

burden of proof ordinarily presents first. Because an

assessment is based on the classification, this provision in

§ 70.47(8) applying to a challenge to an assessment should be

read to apply to an objection to a classification.

¶26 In addition, § 70.47(8)(i) explicitly provides that a

board shall presume that the assessor's valuation is correct but

that the presumption may be rebutted by a sufficient showing by

the objector that the valuation is incorrect. Again the

statutory language is limited to valuations and is silent about
a presumption of correctness regarding the assessor's

11
No. 2010AP3015

classification: "The board shall presume that the assessor's

valuation is correct. That presumption may be rebutted by a

sufficient showing by the objector that the valuation is

incorrect." Wis. Stat. § 70.47(8)(i).

¶27 This presumption language was added to Wis. Stat.

§ 70.47(8)(i) in 1997.17 Although the presumption language in

Wis. Stat. § 70.47(8)(i) limits the presumption of correctness

to the assessor's valuation, we must read § 70.47(8)(i) in the

context of the contemporaneous amendment adding § 70.47(8)(h)

requiring the assessor to "provide to the board specific

information about the validity of the valuation . . . and

information that the assessor used to determine that valuation."

The presumption in § 70.47(8)(i) reinforces the burden of proof

imposed in § 70.47(7) on the taxpayer who objects to valuation

to show at the board hearing that the valuation is erroneous.

Even though the assessor must provide specific information to

the board regarding the valuation, the burden of proof to show

error in the assessor's valuation remains on the taxpayer.

¶28 Our interpretation of Wis. Stat. § 70.47(7) and (8) to

support imposing the burden of proof on the taxpayer challenging

the assessment or classification at the board is reinforced by

§ 70.47(9), which directs the board how and when to correct an

assessment. Section 70.47(9) provides that a board shall raise

or lower an assessment "if the assessment is too high or too

low" and "shall state on the record the correct assessment and

17
1997 Wis. Act 237, § 279m.

12
No. 2010AP3015

that that assessment is reasonable in light of all the relevant

evidence the board received." Wis. Stat. § 70.47(9)(a).

¶29 Although Wis. Stat. § 70.47(9)(a) is silent about

whether the taxpayer has the burden of proof in challenging the

correctness of the classification, Wis. Stat. § 70.47(9)(a)

explicitly states that if the vote at the board is a tie vote on

the objection to the assessment, the assessment will be

sustained. The legislature has thus declared that if the party

who seeks to raise or lower the assessment fails to persuade a

majority of the board that the assessment is incorrect, that

party loses. In this way, § 70.47(9)(a) makes it absolutely

clear that the burden of persuasion is on the taxpayer to show

that an assessor's assessment is erroneous. Because an

assessment depends on a valuation and a classification, it makes

sense to apply the same burden of proof to a taxpayer's

challenge to a classification as is applied to a taxpayer's

challenge to an assessment.

¶30 Finally, our position is supported by Wis. Stat.

§ 74.37. Under this statute, when a taxpayer uses this

procedure in circuit court to challenge an assessment as

excessive, the circuit court reviews the board's determination

de novo, giving "no deference to the Board of Review's

decision."18 Nevertheless, "the underlying assessment still

18
Metro. Assocs. v. City of Milwaukee, 2011 WI 20, ¶10, 332
Wis. 2d 85, 796 N.W.2d 717.

13
No. 2010AP3015

carries a presumption of correctness."19 When the legislature

provides that an underlying assessment carries a presumption of

correctness when the board's determination is reviewed de novo

by a court, it seems logical to infer that when a more limited

certiorari judicial review of a board's determination takes

place, the burden is on the taxpayer to prove that an assessor's

assessment is erroneous.

¶31 The historical understanding of earlier, similar

versions of the statutes bolsters our interpretation of the

present statutes as placing the burden of proof on the taxpayer

to prove that the assessor's classification is erroneous.

¶32 As far back as 1883, the court declared that under the

statutes then in effect a person objecting to an assessment had

to take the initiative and produce testimony showing that the

assessment was too high. See Shove v. City of Manitowoc, 57

Wis. 5, 7, 8, 14 N.W. 829 (1883). Furthermore, the court noted

that the statute provided that a board of review was authorized

to increase or lessen the assessment "only upon being 'satisfied

from the evidence taken' that it is too high or too low."

Shove, 57 Wis. at 8. The Shove court concluded that the statute

was enacted to prevent the board from arbitrarily increasing or

decreasing an assessment "without evidence or testimony and

merely to satisfy their own notions of justice or some opinions

based, perchance, upon some casual statement made by some

citizen in good faith or otherwise." Shove, 57 Wis. at 8.

19
Id. (citing Wis. Stat. § 70.49(2)).

14
No. 2010AP3015

¶33 The Shove case has since been cited for the

proposition that, absent sufficient evidence, a board cannot

change an assessment.

¶34 State ex rel. Giroux v. Lien, 108 Wis. 316, 317-18, 84

N.W. 422 (1900), cited Shove as supporting the proposition that

an assessor's valuation stands before the board as prima facie

correct and declared that "the assessment needs no support by

evidence in the first instance, but must stand, unless shown to

be incorrect by reasonably direct and unambiguous evidence"

(emphasis added).

¶35 Subsequently, State ex rel. Foster v. Williams, 123

Wis. 73, 75, 100 N.W. 1052 (1904), cited Giroux for the

proposition that an objecting taxpayer "had no right to have

[the true assessment] reduced, except upon evidence reasonably

tending to show that it was excessive . . . ."20

¶36 The court has stated that a landowner must overcome

"the prima facie presumption in favor of the original

assessment." State ex rel. Vilas v. Wharton, 117 Wis. 558, 562,

94 N.W. 359 (1903) (emphasis added). In State ex rel. Kimberly-

Clark Co. v. Williams, 160 Wis. 648, 651, 152 N.W. 450 (1915),

the court declared that "[t]he assessment of the relator's

20
Shove v. City of Manitowoc, 57 Wis. 5, 14 N.W. 829
(1883), and State ex rel. Foster v. Williams, 123 Wis. 73, 75,
100 N.W. 105 (1904), involved a tax on personal property, but
the principles stated therein are applicable to taxation of real
property. Fond du Lac Water Co. v. City of Fond du Lac, 82 Wis.
322, 52 N.W. 439 (1892) (holding that, both as to real and
personal property, a board of review cannot arbitrarily increase
the valuation of the assessor without proof being furnished).

15
No. 2010AP3015

property made by the assessor was prima facie correct and was

binding on the board of review in the absence of evidence

showing it to be incorrect" (emphasis added). The court has

also noted that "it is . . . the law that the assessment made by

the local assessor is prima facie correct." Peninsular Power

Co. v. Wisconsin Tax Comm'n, 195 Wis. 231, 234, 218 N.W. 371

(1928).

¶37 Thus, on the basis of the general principle regarding

which party has the burden of proof; the text of Wis. Stat.

§§ 70.47(7)(a), 70.47(8)(i), 70.47(9), and 74.32; and the case

law, we conclude that a taxpayer who objects to an assessment on

the basis of the classification of the property has the burden

of proving that the classification is erroneous.

¶38 We now examine the record before the board to

determine whether the board erred in refusing to reduce the

assessment. In reviewing a determination of a board of review,

"[t]he presumptions are all in favor of the rightful action of

the board." Darcel v. Manitowoc Bd. Of Review, 137 Wis. 2d 623,

626, 405 N.W.2d 344 (1987) (quoting State ex rel. Boostrom v.

Bd. of Review, 42 Wis. 2d 149, 155, 166 N.W.2d 184 (1969)).21
21
In reviewing a municipality's decision on certiorari,
Wisconsin courts have repeatedly stated that there is a
presumption of correctness and validity to a municipality's
decision. Nowell v. City of Wausau, 2013 WI 88, ¶24, 351
Wis. 2d 1, 838 N.W.2d 852.

The person challenging the municipality's decision, here
the taxpayer, bears the burden to overcome the presumption of
correctness of the board's decision. Ottman v. Town of
Primrose, 2011 WI 18, ¶50, 332 Wis. 2d 3, 796 N.W.2d 411.

16
No. 2010AP3015

¶39 To support his argument that the board erred in

refusing to reduce the assessment and his contention that the

classification of the property should be changed from

"productive forest land" to "undeveloped land," the taxpayer

produced and relied on two maps: one issued by the Wisconsin

Department of Natural Resources (DNR) and the other issued by

the United States Department of the Interior Geological Survey.

"Undeveloped land" is defined by Wis. Stat. § 70.32(2)(c)4. as

"bog, marsh, lowland brush, uncultivated land zoned as

shoreland . . . or other nonproductive lands not otherwise

classified under this section."

¶40 The DNR map shows an aerial view of the property in

question with different shading for different geographical

descriptions; the property at issue is described as "forested

wetlands."

¶41 On the basis of these maps, the taxpayer argued that

the assessor's classification was erroneous and that the maps

supported his view that the property's being "marsh," "swamp,"

or "wetlands" prevented the property from being classified as

"productive forest land." He asserted that the maps more

accurately described his property as "undeveloped land" than as

"productive forest land."

¶42 The town assessor disputed the taxpayer's assertions

at the hearing, claiming that the aerial map showed that the

property was "pretty much all trees." The town assessor stated
that both maps described the property as "forested" or "wooded,"

17
No. 2010AP3015

supporting the classification of the property as "low-grade

woods."

¶43 The burden fell on the taxpayer to show that the board

erred and that the property was undeveloped land and not

"productive forest land." The taxpayer failed to submit

evidence that the property is not capable of producing

commercial forest products or that the property failed to

qualify as low-grade woods. The taxpayer relied entirely on the

two maps to show that the property was "undeveloped land." The

maps supported none of the taxpayer's contentions. The maps did

not support the taxpayer's contentions that the board erred;

that the property was improperly classified as productive forest

land; or that the property should be reclassified as undeveloped

land. The Wisconsin Property Assessment Manual notes that an

aerial photograph showing the presence of trees can indicate

forest classification and the presence of constantly wet soil

can indicate undeveloped land classification.22 The taxpayer

thus furnished no evidence that the assessment was not fixed

upon the statutory basis.

¶44 In their discussion, members of the board noted that

some of the property was "swampland," but that the property had

"a lot of trees on it." The members of the board concluded that

the classification should be maintained as-is.

22
1 Wisconsin Property Assessment Manual at 11-33 (eff.
1/09).

18
No. 2010AP3015

¶45 The circuit court held that the evidence provided by

the taxpayer was insufficient to meet his burden of proof.

Rather, the totality of the evidence was such "that it might

reasonably sustain the Board's determination." The court of

appeals also held that the taxpayer failed to make a record

showing that the classification was incorrect.

¶46 On certiorari review, a court does not retry the facts

and an assessment must be upheld if it can be supported by any

reasonable view of the evidence.23 This court "will review the

evidence only so far as to ascertain if there is reasonable

ground for belief that the decision [of the board of review] is

the result of honest judgment, in which case it will not be

disturbed."24

¶47 The taxpayer's argument in the present case centers on

the fourth element of certiorari review, namely that the board's

determination to adopt the assessor's classification of the

property is not supported by evidence such that the board might

reasonably make the determination in question. We conclude that

the board's determination is supported by a reasonable view of

the evidence. The taxpayer here failed to meet his burden to

present evidence justifying the board's overturning the

assessment. In light of all relevant evidence that the board

23
ABKA Ltd. P'ship v. Bd. of Review, 231 Wis. 2d 328, 335,
603 N.W.2d 217 (1999).
24
State ex rel. Boostrom v. Bd. of Review, 42 Wis. 2d 149,
155, 166 N.W.2d 184 (1969) (quoting State ex rel. N.C. Foster
Lumber Co. v. Williams, 123 Wis. 61, 64, 100 N.W. 1048 (1904)).

19
No. 2010AP3015

received, the board could reasonably conclude that the taxpayer

did not demonstrate that the classification was incorrect and

that the assessment should be lowered.

¶48 For the reasons set forth, we affirm the decision of

the court of appeals.

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

affirmed.

20
No. 2010AP3015.dtp

¶50 DAVID T. PROSSER, J. (concurring). I join the

majority opinion but write separately to provide additional

background and analysis for disputes about the classification of

real property.

¶51 In this case, the taxpayer appeared before the Town of

Black Creek Board of Review (the Board). He testified about his

position, and he supported his position with "two maps: one

issued by the Wisconsin Department of Natural Resources (DNR)

and the other issued by the United States Department of the

Interior Geological Survey." Majority op., ¶39. When the

taxpayer did not prevail before the Board, he filed for

certiorari review in the Outagamie County Circuit Court. See

Wis. Stat. § 70.47(13). He lost in the circuit court and on

appeal.

¶52 When a taxpayer appears before a board of review, the

taxpayer should proffer all the evidence available because he

will ordinarily be limited to that evidence on certiorari
review. If the taxpayer is able to gather additional evidence

after the board of review——often with the assistance of an

attorney——he should seek de novo review under Wis. Stat.

§ 74.37. De novo review will not shift the burden of proof from

the taxpayer to the board, but it will permit the taxpayer to

buttress his case with more and different evidence challenging

the correctness of the board's decision, which is normally based

on the assessor's determination.

1
No. 2010AP3015.dtp

¶53 In this case, the taxpayer did not dispute the

assessor's revaluation of his property. Rather, the taxpayer

contended that his property was improperly classified.1

¶54 In my view, the taxpayer would have been in a stronger

position with the board if the assessor had reclassified the

property and the resulting reclassification had produced a

higher assessment. In that case, the taxpayer could at least

point to the classification prior to the change to support his

position. Here, it was the taxpayer, not the assessor, who was

seeking to reclassify the property. Surely the taxpayer had the

burden in these circumstances.

¶55 This court does not know when the taxpayer's property

was first classified as "productive forest land" because that

evidence was never offered. The record shows that the taxpayer

acquired the property in 1977 with a farm, but it does not show

how the property was classified over the ensuing decades. The

taxpayer did not provide evidence of how his land had changed,

if at all, during his ownership.2 For instance, did he plant
trees on the property? Did he ever harvest trees from the

property for "commercial forest products"? If he never

harvested trees, was his failure to do so (1) because he did not

1
All reviewing courts concluded that he did not meet his
burden to accomplish this objective.
2
The record contains an "Objection Form For Real Property
Assessment." The form includes the following question: "Have
you improved, remodeled, added to, or changed this property
since acquiring it?" The taxpayer answered "No." The question
is sufficiently general that it does not really explore whether
the taxpayer did anything to the trees on the property.

2
No. 2010AP3015.dtp

want to harvest trees; (2) because the trees were of such poor

quality that they could not produce "commercial forest

products"; or (3) because the law would not allow him to harvest

trees from land designated as wetlands? Detailed information on

these matters might have helped or hurt the taxpayer's case, but

the absence of detailed information did not help his case.

¶56 This justice would have liked to have had a better

explanation of "low grade woods" than what was provided and

evidence of whether the "low grade woods"——here "low grade

cedar"——were capable of producing "commercial forest products."

This justice would have liked to have known whether all ten

acres of the taxpayer's property were designated "wetlands," as

well as when they were so designated and by whom. Finally, this

justice would have liked information on whether environmental

law prevents the harvesting of trees from officially designated

wetlands so that the forested land was not able to produce

"commercial forest products." On certiorari review, of course,

this court is not able to consider information that was not part
of the record of proceedings before the Board.

¶57 In sum, the taxpayer failed to offer sufficient

evidence to establish that his property required

reclassification. Because the Town of Black Creek (the Town)

had classified similar property the same way, the taxpayer was

effectively seeking a reclassification that could affect the

classification of other property in the Town. The taxpayer

should have realized that the Board would be disinclined to

3
No. 2010AP3015.dtp

adopt the taxpayer's position on anything less than compelling

evidence. The taxpayer did not provide such evidence.

¶58 Wisconsin Stat. § 70.32(2) establishes the procedure

for the classification of property:

(2) The assessor, having fixed a value, shall
enter the same opposite the proper tract or lot in the
assessment roll, following the instruction prescribed
therein.

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

1. Residential.
2. Commercial.
3. Manufacturing.
4. Agricultural.
5. Undeveloped.
5m. Agricultural forest.
6. Productive forest land.
7. Other.
¶59 Paragraph (c) in Wis. Stat. § 70.32(2) lists

definitions of "agricultural forest land," "agricultural land,"

"other," "productive forest land," "residential," and

"undeveloped land."

¶60 For purposes of this case, the definitions of

"agricultural forest land," "productive forest land," and

"undeveloped land" are relevant:

1d. "Agricultural forest land" means land that
is producing or is capable of producing commercial
forest products, if the land satisfies any of the
following conditions:

4
No. 2010AP3015.dtp

a. It is contiguous to a parcel that has been
classified in whole as agricultural land under this
subsection, if the contiguous parcel is owned by the
same person that owns the land that is producing or is
capable of producing commercial forest products. In
this subdivision, "contiguous" includes separated only
by a road.

b. It is located on a parcel that contains land
that is classified as agricultural land in the
property tax assessment on January 1, 2004, and on
January 1 of the year of assessment.

c. It is located on a parcel at least 50
percent of which, by acreage, was converted to land
that is classified as agricultural land in the
property tax assessment on January 1, 2005, or
thereafter.

. . . .

2. "Productive forest land" means land that is
producing or is capable of producing commercial forest
products and is not otherwise classified under this
subsection.

. . . .

4. "Undeveloped land" means bog, marsh, lowland
brush, uncultivated land zoned as shoreland under s.
59.692 and shown as a wetland on a final map under s.
23.32 or other nonproductive lands not otherwise
classified under this subsection.
Wis. Stat. § 70.32(2)(c).

¶61 As noted above, the taxpayer did not offer any

evidence of how the classification of his property had changed——

if it had——since the property was acquired in 1977.

III

¶62 Wisconsin did not require assessors to classify

property, in the manner described in Wis. Stat. § 70.32(2),

until 1931. See § 2, ch. 427, Laws of 1931.

5
No. 2010AP3015.dtp

¶63 There were several reasons for the development of

classifications at that time. First, Article VIII, § 1 of the

Wisconsin Constitution——the so-called uniformity clause——was

amended in 1927. This constitutional provision had read in

part, "The rule of taxation shall be uniform, and taxes shall be

levied upon such property as the legislature shall prescribe."

Wis. Const. art. VIII, § 1 (amended 1927). The 1927 amendment

changed this sentence to read, "The rule of taxation shall be

uniform, and taxes shall be levied upon such property with such

classifications as to forests and minerals, including or

separate or severed from the land, as the legislature shall

prescribe."3

¶64 Second, the legislature followed up the 1927 amendment

by creating Chapter 77 of the statutes relating to forest crop

lands. Ch. 454, Laws of 1927. The original law permitted the

owner of a tract of land that was at least 160 acres to petition

3
Wis. Const. art. VIII, § 1 (amended 1941) (emphasis
added). In the 1941 amendment, the language changed slightly
but remained largely the same:

The rule of taxation shall be uniform but the
legislature may empower cities, villages or towns to
collect and return taxes on real estate located
therein by optional methods. Taxes shall be levied
upon such property with such classifications as to
forests and minerals including or separate or severed
from the land, as the legislature shall prescribe.

Wis. Const. art. VIII, § 1.

In 1974 the people approved another constitutional
amendment adding the following sentence to Article VIII, § 1:
"Taxation of agricultural land and undeveloped land, both as
defined by law, need not be uniform with the taxation of each
other nor with the taxation of other real property."

6
No. 2010AP3015.dtp

the "conservation commission" to designate the land as "forest

crop land," "more useful for growing timber and other forest

crops than for any other purpose." Wis. Stat. § 77.02(1)

(1927). Approval of the petition by the commission subjected

the property to certain "forestry" practices as well as

substantial tax benefits. See generally Wis. Stat. ch. 77

(1927). The constitutional amendment contemplated that at least

some forest land would be classified differently from other

land,4 but it did not require that all forest land be classified

differently.

¶65 Third, the legislature was in the midst of giving

municipalities extensive planning and zoning authority. See,

for example, Wis. Stat. § 59.97 (1929), setting out the "zoning

power" of counties, which read in part, "(1) The county board of

any county may by ordinance regulate, restrict and determine the

areas within which agriculture, forestry and recreation may be

conducted, the location of roads, schools, trades and

industries, and the location of buildings designed for specified
uses . . . ."5 Zoning and the classification of property for
4
The "Woodland Tax Law," set out in Wis. Stat. § 77.16, was
not created until 1953. See § 2, ch. 384, Laws of 1953. The
Woodland Tax Law stated that "the owner of any tract of land of
less than 40 acres may file with the conservation director an
application setting forth a description of the property which he
desires to place under the woodland tax law and on which land he
will practice forestry." Id. If the conservation director
determined that the land was suitable for growing trees of
commercial quality, the application would be approved. Id. The
woodland would then be taxed at 20 cents per acre, and the owner
would be obligated to "promote the growth of trees." Id.
5
See also chs. 279 and 356, Laws of 1929; ch. 375, Laws of
1927; ch. 388, Laws of 1923.
7
No. 2010AP3015.dtp

taxation appear to overlap, even if that overlap may not be

wholly consistent.

¶66 The 1931 legislature6 repealed the existing Wis. Stat.

§ 70.32(2) and replaced it with the following:

(2) The assessor, having fixed a value, shall
enter the same opposite the proper tract or lot in the
assessment roll, following the instructions prescribed
therein. In cities and villages, he shall segregate
into the following classes on the basis of use and set
down separately in proper columns the values of the
land, exclusive of improvements, and the improvements
in each class:

A. Residential,
B. Mercantile,
C. Manufacturing,
D. Agricultural.

In towns, he shall segregate into the following
classes on the basis of use and set down separately in
proper columns the acreage and the value of the parts
of land, exclusive of improvements, and the
improvements which fall within each class:

D. Agricultural,
E. Marsh, cut-over, or waste,
F. Timber,
A. Residential, including also mercantile and
manufacturing.
Wis. Stat. § 70.32(2) (1931). The listed classes contained no

statutory definitions.

¶67 Wisconsin Stat. § 70.32(2) remained intact until 1959,

when the legislature amended § 70.32(2), relating to towns, to

include the following classes of property in Wis. Stat.

§ 70.32(2)(b):

A. Residential,

6
Ch. 427, Laws of 1931.

8
No. 2010AP3015.dtp

B. Mercantile,
C. Manufacturing,
D. Agricultural,
E. Marsh, cut-over, or waste,
F. Timber.7
¶68 Chapter 213, Laws of 1963 changed the listing in

§ 70.32(2)(b) to read:

A. Residential,
B. Mercantile,
C. Manufacturing,
D. Agricultural,
E. Swamp, or waste,
F.1 Productive forest land,
F.2 Nonproductive forest land.
¶69 Chapter 213 then added paragraph (c) containing

several definitions:

70.32(2)(c) For the purpose of this subsection
"swamp or waste" means bog, marsh, lowland brush or
other nonproductive lands not otherwise classified
under this subsection; "productive forest land" means
land which is producing or is capable of producing
commercial forest products and is not otherwise
classified under this subsection; "nonproductive
forest land" means land which because of soil or site
conditions is not producing or is not capable of
producing commercial forest products and which is not
otherwise classified under this subsection.
§ 2, ch. 213, Laws of 1963.

¶70 In 1981 the legislature deleted "Nonproductive forest

land" from § 70.32(2)(b) as well as its definition in (2)(c), so

that "Swamp, or waste" and "Productive forest land" were the

classifications that remained at the bottom of the list.

§§ 1059-60, ch. 20, Laws of 1981. The deletion was not

accompanied by any change in the definitions. "Swamp, or waste"

7
§ 27, ch. 19, Laws of 1959.

9
No. 2010AP3015.dtp

continued to be defined, in part, as "other nonproductive lands

not otherwise classified." Id.

¶71 In 1984 the legislature changed the word "mercantile"

to "commercial," 1983 Wis. Act 275, § 15(8), explaining in a

Note that "'[c]ommercial' is more readily understood and clearly

indicates that this classification includes all property devoted

to business uses."

¶72 In 1986 the legislature modified the definitions in

Wis. Stat. § 70.32(c), especially "Swampland or wasteland,"

which was defined to mean "bog, marsh, lowland brush,

uncultivated land zoned as shoreland under s. 59.971 and shown

as a wetland on a final map under s. 23.32 or other

nonproductive lands not otherwise classified under this

subsection." 1985 Wis. Act 153, § 12 (emphasis added).

¶73 In 1995 the legislature added "other" to the list.

1995 Wis. Act 27, § 3362d. However, "other" was not defined

until 2002. 2001 Wis. Act 109, § 156d.

¶74 Finally, 2003 Wis. Act 33 created a new category in
the listing, "Agricultural forest land," and it changed

"Swampland or wasteland" to "Undeveloped land." See 2003 Wis.

Act 33, §§ 1536h-1536i. The legislature created the following

definition of "Agricultural forest land":

"Agricultural forest land" means land that is
producing or is capable of producing commercial forest
products and is included on a parcel that has been
classified in part as agricultural land under this
subsection or is contiguous to a parcel that has been
classified in whole or in part as agricultural land
under this subsection, if the contiguous parcel is
owned by the same person that owns the land that is
producing or is capable of producing commercial forest
10
No. 2010AP3015.dtp

products. In this subdivision, "contiguous" includes
separated only by a road.
2003 Wis. Act 33, § 1536h.

¶75 The underlined words were vetoed by the governor.

However, 2003 Wis. Act 230 was devoted entirely to the

definition of "agricultural forest land" and created the

definition, quoted above in paragraph 60, that exists today.

See Wis. Stat. § 70.32(2)(c)1d.

¶76 In this case, the taxpayer had the burden of proving

that his ten acres were not properly classified as "productive

forest land." The obvious argument to be made was that even

though the taxpayer's ten acres were forested, his land was not

producing and was not capable of producing commercial forest

products. If the taxpayer had succeeded with this argument, he

could then have argued that his land was "undeveloped land,"

defined in part as "other nonproductive lands not otherwise

classified under this subsection." See Wis. Stat.

§ 70.32(2)(c)4.

¶77 If the taxpayer had made the argument above but not

succeeded with it, he could have explored whether the land

qualified as "agricultural forest land" under Wis. Stat.

§ 70.32(2)(a)5m., as defined in § 70.32(2)(c)1d., because

11
No. 2010AP3015.dtp

"agricultural forest land" includes land capable of producing

commercial forest products.8

¶78 The fact that the taxpayer's land was designated as

wetlands did not necessarily mean that it met the definition for

undeveloped land, which is "uncultivated land zoned as shoreland

under 59.692 and shown as wetland on a final map under s.

23.32." Wis. Stat. § 70.32 (2)(c)4. (emphasis added). The land

would have to be "bog, marsh, lowland brush . . . or other

nonproductive land not otherwise classified under this

subsection" to be classified as "Undeveloped land." Id.

(emphasis added). The land would have been "otherwise

classified" if the land were "capable of producing commercial

forest products."

¶79 Forest land "capable of producing commercial forest

products" will likely be classified as either "agricultural

forest land" or "productive forest land." However, if

environmental law somehow prevents the trees from ever being

harvested so that the land is not actually "capable of producing
commercial forest products," it would seem that the "productive

forest land" or "agricultural forest land" classifications would

be improper. The latter point poses an unanswered statutory

interpretation question.

8
Although the record is unclear as to the precise nature of
the taxpayer's total property, the "Objection Form For Real
Property Assessment" indicates that the parcel at issue was
purchased with a farm and that the parcel is "land locked."
Thus, it is possible that the "farm" was agricultural land, and
the taxpayer might have been able to claim that the parcel at
issue was "agricultural forest land."

12
No. 2010AP3015.dtp

¶80 To sum up, the taxpayer may, in fact, have been

entitled to reclassification of his property, but not on the

evidence he provided.

¶81 For the foregoing reasons, I respectfully concur.

13
No. 2010AP3015.pdr

¶82 PATIENCE DRAKE ROGGENSACK, J. (concurring). The

majority opinion correctly upholds the Town of Black Creek Board

of Review's assessment of Frank Sausen's real property for

purposes of real estate taxation. I write in concurrence to

complete the certiorari review that applies when a board of

review's decision is examined on appeal.

I. BACKGROUND

¶83 Sausen owns real property in the Town of Black Creek,

Outagamie County, Wisconsin. He filed an objection to the

assessment of his property with the Town's board of review when

his assessment increased from $11,000 in 2008 to $27,500 in

2009. He claimed that his property had been incorrectly

classified as "productive forest land." He asserted that the

correct property classification was "undeveloped land," as

defined in Wis. Stat. § 70.32(2)(c)4., which would then be

assessed at 50 percent of its value pursuant to § 70.32(4). The

board of review denied his request to reclassify his property,

thereby affirming the $27,500 valuation for his assessment.
¶84 Pursuant to Wis. Stat. § 70.47(13), Sausen petitioned

for a writ of certiorari in regard to the board of review's

classification of his property as "productive forest land."1

1
If he had paid the taxes assessed, Sausen could have
appealed the assessment pursuant to Wis. Stat. § 74.37(3)(d)
wherein he would have commenced an independent action in circuit
court subsequent to the board of review's decision. See Nankin
v. Vill. of Shorewood, 2001 WI 92, ¶3, 245 Wis. 2d 86, 630
N.W.2d 141 (explaining that with real property located outside
Milwaukee County, a property owner could employ § 74.37(3)(d) to
recover taxes paid on an excessive assessment).

1
No. 2010AP3015.pdr

Upon certiorari review, the circuit court affirmed the board of

review. The court of appeals affirmed as well.2

II. DISCUSSION

A. Standard of Review

¶85 Petitions under Wis. Stat. § 70.47(13) proceed by

certiorari review, wherein we independently review the board of

review's decision while benefitting from the analyses of the

circuit court and court of appeals. State ex rel. Stupar River

LLC v. Town of Linwood Portage Cnty. Bd. of Review, 2011 WI 82,

¶16, 336 Wis. 2d 562, 800 N.W.2d 468. We look for "any error in

the proceedings of the board which renders the assessment or the

proceedings void." § 70.47(13); Northland Whitehall Apartments

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

¶13, 290 Wis. 2d 488, 713 N.W.2d 646.

B. Certiorari Review

¶86 The scope of certiorari review under Wis. Stat.

§ 70.47(13) is limited to considering whether the board of

review's actions were: (1) within its jurisdiction; (2)
according to law; (3) arbitrary, oppressive or unreasonable and

represented its will, not its judgment; and (4) supported by

evidence such that the board might reasonably make the

determination under review. Joyce v. Town of Tainter, 232

Wis. 2d 349, 353, 606 N.W.2d 284 (Ct. App. 1999). "Certiorari

review under [] § 70.47(13) is limited to [] the record made

2
Sausen v. Town of Black Creek Bd. of Review, No.
2010AP3015, unpublished slip op. (Wis. Ct. App. Nov. 6, 2012).

2
No. 2010AP3015.pdr

before the board of review."3 Nankin v. Vill. of Shorewood, 2001

WI 92, ¶20, 245 Wis. 2d 86, 630 N.W.2d 141.

¶87 I note that the board of review had jurisdiction to

hear Sausen's objection to the classification of his property.

The classification of real property bears on the amount of the

property's assessment. Wis. Stat. § 70.32(4). The board of

review has statutory authority to review and evaluate the

assessor's decision and other evidence submitted to it when an

objection is made. Wis. Stat. § 70.47(7). Accordingly, the

decision of the board of review was within its jurisdiction.

See Anic v. Bd. of Review of the Town of Wilson, 2008 WI App 71,

¶19, 311 Wis. 2d 701, 751 N.W.2d 870 (explaining that the board

of review kept within its jurisdiction when it determined the

"probity and credibility of the witnesses").

¶88 In order for the board of review's decision to be made

according to law, the board's denial of Sausen's objections to

the assessment of his property would have involved consideration

of whether appropriate statutory criteria were followed in
arriving at the assessment. Johnson v. City of Greenfield Bd.

of Review, 2005 WI App 156, ¶6, 284 Wis. 2d 805, 702 N.W.2d 460.

The assessment includes the valuation of the real estate, as

well as its classification. Wis. Stat. § 70.32. Valuation is

governed by § 70.32(1), (1g) and (1m). Section § 70.32(1) is

3
Under Wis. Stat. § 74.37(3)(d), the action proceeds as do
other civil actions. Nankin, 245 Wis. 2d 86, ¶22. Such an
action permits a full trial on the assessment, unlike the
limited review accorded in certiorari review. Id., ¶24.

3
No. 2010AP3015.pdr

most relevant to the assessment of Sausen's property. It

provides that valuation shall proceed:

in the manner specified in the Wisconsin property
assessment manual provided under s. 73.03(2a) from
actual view or from the best information that the
assessor can practicably obtain, at the full value
which could ordinarily be obtained therefor at private
sale. In determining the value, the assessor shall
consider recent arm's–length sales of the property to
be assessed if according to professionally acceptable
appraisal practices those sales conform to recent
arm's—length sales of reasonably comparable property;
. . . and all factors that, according to
professionally acceptable appraisal practices, affect
the value of the property to be assessed.
¶89 The board of review considered recent arm's—length

sales of other property that were reasonably comparable to

Sausen's property. The board noted, "We have wood swampland

that was sold in the township parcel number 260 that was sold

for $2,750 per acre and also section 13 parcel 249 was also sold

for $2,750, they are very similar, similar type of woods on the

map."

¶90 Sausen's parcel contained ten acres. With a per acre

value of $2,750, the assessed value of $27,500 is consistent

with other comparable property that had a recent sale.

¶91 The board of review also considered Sausen's argument

that the property should be classified as "undeveloped land" and

decided that the assessor's description of low grade woods was

more appropriate due to all the trees. "Forested areas

primarily held for hunting" are generally given a forested

classification such as "[p]roductive forest land" described in
Wis. Stat. § 70.32(2)(c)2. See Wisconsin Dep't of Revenue,

4
No. 2010AP3015.pdr

Wisconsin Property Assessment Manual 2013, 5-55 – 5-56 (rev'd

12/11). The board of review then affirmed the classification of

"productive forest land" and the valuation of $27,500 given by

the assessor. In so doing, the board of review followed the

directive of § 70.32(1) and acted "according to law." See

Johnson, 284 Wis. 2d 805, ¶6 (explaining that assessments made

according the statutory criteria are made according to the law).

¶92 The board of review did not approach Sausen's

objection to the classification of his property in an arbitrary,

oppressive or unreasonable manner. It excluded no evidence that

Sausen sought to present. Rather, it considered the maps that

he submitted, his argument that his property should be

classified as "undeveloped land," other wooded hunting lands and

how they were assessed, and the assessor's professional opinion

that the property was correctly classified as "productive forest

land" because it contained low grade woods. See Whitecaps

Homes, Inc. v. Kenosha Cnty. Bd. of Review, 212 Wis. 2d 714,

722-23, 569 N.W.2d 714 (Ct. App. 1997) (concluding that so long
as there is a reasonable ground for the exercise of the board of

review's judgment, it will not be held to be arbitrary or

oppressive).

¶93 Sausen provided two maps as evidence: one from the

Wisconsin Department of Natural Resources (DNR map) and one from

the United States Department of the Interior Geological Survey

(US Survey map). Both maps are aerial photographs of Sausen's

property, and both maps described the property in ways other
than as "productive forest land," the classification the

5
No. 2010AP3015.pdr

assessor assigned to Sausen's property. However, neither map

described the land depicted as "undeveloped land." The DNR map

described the property as "forested" and "wetlands." The US

Survey map does not use descriptive labels for Sausen's

property.

¶94 Sausen represented himself before the board of review

and argued that the descriptions on the two maps confirmed his

belief that his property should have been classified as

"undeveloped land." However, Sausen did not provide expert

testimony from a real estate appraiser who may have been able to

link the descriptions on the maps to the statutory

classifications set out in Wis. Stat. § 70.32(2)(a)5. and 6.

Sausen did not have the expertise to make the necessary

connection. Accordingly, the assessor's opinion that the

property was correctly classified as "productive forest land"

pursuant to § 70.32(2)(a)6. was uncontroverted before the board

of review. Therefore, the evidence was such that the board of

review might reasonably make the determination that it made.
See Stupar River, 336 Wis. 2d 562, ¶¶25-27 (concluding that the

board of review's decision must be upheld if it is reasonable

under the evidence submitted).

III. CONCLUSION

¶95 Certiorari review of the board of review's decision

shows that the board: kept within its jurisdiction; acted

according to law; was not arbitrary, oppressive or unreasonable

in its decision-making; and heard evidence that reasonably
supported its decision. Accordingly, I concur with the majority

6
No. 2010AP3015.pdr

opinion and conclude that the board of review's decision must be

upheld.

7
No. 2010AP3015.pdr