                                                                    2019 WI 23

                  SUPREME COURT               OF     WISCONSIN
CASE NO.:                 2017AP516
COMPLETE TITLE:           State of Wisconsin ex rel. The Peter Odgen
                          Family Trust of 2008 and The Therese A. Mahoney-
                          Ogden Family Trust of 2008,
                                    Petitioners-Appellants,
                               v.
                          Board of Review for the Town of Delafield,
                                    Respondent-Respondent-Petitioner.

                             REVIEW OF DECISION OF THE COURT OF APPEALS
                             Reported at 381 Wis. 2d 161,911 N.W.2d 653
                                       PDC No: 2018 WI APP 26

OPINION FILED:            March 14, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            November 5, 2018

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Waukesha
   JUDGE:                 Kathryn W. Foster

JUSTICES:
   CONCURRED:             DALLET, J. concurs, joined by A.W. BRADLEY, J.
                          (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For the respondent-respondent-petitioner, there were briefs
filed    by R.         Valjon Anderson, and     Municipal   Law   & Litigation
Group, S.C., Waukesha. There was an oral argument by R. Valjon
Anderson.


       For the petitioners-appellants, there was a brief filed by
Paul    W.      Zimmer,    and   O’Neil,   Cannon,   Hollman,   DeJong &   Laing
S.C., Milwaukee. There was an oral argument by Paul W. Zimmer.
     An amicus curiae brief was filed on behalf of Wisconsin
Realtors Association, Wisconsin Builders Association, and NAIOP-
WI by Thomas D. Larson, Madison.


     An amicus curia brief was filed on behalf of Wisconsin Farm
Bureau Federation, Cooperative and Waukesha County Farm Bureau
by H. Dale Peterson, John H Laubmeier, and Stroud, Willink &
Howard, LLC, Madison.




                                   2
                                                                            2019 WI 23
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.    2017AP516
(L.C. No.   2016CV1707)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin ex rel. The Peter Odgen
Family Trust of 2008 and The Therese A.
Mahoney-Ogden Family Trust of 2008,

            Petitioners-Appellants,                                      FILED
      v.                                                            MAR 14, 2019
Board of Review for the Town of Delafield,                             Sheila T. Reiff
                                                                    Clerk of Supreme Court
            Respondent-Respondent-Petitioner.




      REVIEW of a decision of the Court of Appeals.                      Affirmed and
cause remanded.



      ¶1    SHIRLEY       S.   ABRAHAMSON,   J.       In    2016,     the    Board      of
Review for the Town of Delafield reclassified two lots of land
owned by The Peter Ogden Family Trust of 2008 and The Therese A.
Mahoney-Ogden Family Trust of 2008 from "agricultural land" to
"residential."      This reclassification resulted in a significant
increase in property tax owed for the two lots.                             The Board
                                                                  No.   2017AP516



believed     that     to    qualify    for    the     "agricultural        land"
classification, the land must be farmed for a business purpose.1
     ¶2      The Ogdens sought certiorari review, and the Circuit
Court for Waukesha County, Kathryn W. Foster, Judge, sustained
the Board's reclassification of the land as "residential."
     ¶3      The    court   of   appeals   reversed   the    circuit     court,
holding that a business purpose was not necessary for land to be
classified as "agricultural land" for property tax purposes.2
"Because     the     assessor's    determination      of    the    appropriate
classification was driven by his erroneous understanding of the
law[,]" the court of appeals ordered the circuit court to remand
the cause to the Board to "assess the Trust property anew in a

manner    that is not inconsistent with" the court of                   appeals'
decision.3
     ¶4      We affirm the decision of the court of appeals.
     ¶5      We agree with the court of appeals that a business
purpose is not required in order for land to be classified as
"agricultural land" for property tax purposes.




     1 The Board members reached a tie vote with regard to
whether the Assessor's reclassification should be overturned or
sustained, and as a result, the reclassification stood.
     2 State ex rel. Peter Ogden Family Trust of 2008 v. Bd. of
Review, 2018 WI App 26, 381 Wis. 2d 161, 911 N.W.2d 653.
     3   Id., ¶25.


                                       2
                                                             No.    2017AP516



      ¶6   Based    on   the   undisputed   evidence    presented    to   the
Board,4 the two lots at issue are entitled to be classified as
"agricultural land" as a matter of law.
      ¶7   Accordingly, we remand the cause to the Board for the
limited purpose of affixing a value to the two lots that we
conclude are entitled to be classified as "agricultural land."
                                     I
      ¶8   The Ogdens own three adjacent lots of land in the Town
of   Delafield.     Only two    of those lots    are     at issue    in the
instant case.5     The smaller of the two lots is 4.6 acres, and the
larger of the two is 7.76 acres.
      ¶9   From 2012 through 2015, the two lots were classified

as "agricultural land" and "agricultural forest land."6             When the



      4Neither party asks this court to remand the cause to the
Board to re-determine whether the proper classification is
"residential" or "agricultural land." The Board argues that we
should classify the two lots as "residential" as a matter of
law, while the Ogdens argue that we should classify the two lots
as "agricultural land" as a matter of law.

     We agree with the parties that based on the record in the
instant case, the appropriate classification of the two lots may
be determined as a matter of law.
      5The third lot contains the Ogdens'              residence, and the
Ogdens   do    not dispute   this  lot's               classification  as
"residential."
      6Much of the smaller lot and a portion of the larger lot
contain untillable forest land. From 2012 to 2015, during which
time the portions of the lots being farmed by the Ogden's were
classified as "agricultural land," the wooded portions of the
lots were classified as "agricultural forest land."

                                                              (continued)
                                     3
                                                                   No.    2017AP516



two lots were classified as "agricultural land" in 2015, the
assessed value of the lots was $17,100.                In 2016, however, tax
assessor          Judson    Schultz   reclassified       the     two     lots   as
"residential."            When classified as "residential," the assessed
value        of     the    lots   jumped       to   $886,000.          Thus,    the
reclassification of the two lots from "agricultural land" to
"residential" resulted in a significant increase in property tax
owed    by    the    Ogdens for the two lots.           The     Ogdens filed    an
objection to the Assessor's reclassification with the Board, and
an evidentiary hearing was held.
       ¶10        At the hearing, the Ogdens maintained that the two
lots should continue to be classified as "agricultural land."

Peter Ogden testified that the two lots were primarily used to
harvest apples and hay for food and fiber and to grow Christmas
trees.       He explained that he grew apple trees on approximately
one acre of the smaller lot.                   On the larger lot, Mr. Ogden
testified that he grew Christmas trees on approximately four to
five acres.          He testified that the larger lot also contains a

three-acre hayfield.           Mr. Ogden testified that a barn was built


     The parties agree that if the relevant portions of both
lots are classified as "agricultural land," then the wooded
portions would necessarily be classified as "agricultural forest
land,"   but if the relevant portions are classified as
"residential," then the wooded portions would not be classified
as    "agricultural   forest    land."       See   Wis.    Stat.
§ 70.32(2)(c)1d.a.

     We agree with the parties, and therefore, we do not further
discuss the issue.


                                           4
                                                            No.    2017AP516



on the smaller lot and presented a Certified Survey Map that
showed a second proposed barn on the larger lot.                  Mr. Ogden
concluded his testimony as follows:

      In conclusion, growing apple trees, Christmas trees
      and alfalfa, which is what I am doing on these two
      pieces   of  land,   should  all   be   considered  an
      agricultural use as long as that is the primary use of
      that land. As long as that is the primary use of that
      land. That is the primary use of that land.
      ¶11   Mr. Ogden presented aerial photographs of the two lots
that showed the progression of the lots dating back to 2005.
The 2013 picture shows a green hayfield, and the 2015 picture
shows lines in the hayfield from when the hay was harvested.
Mr. Ogden also presented ground photographs of the two lots.
The pictures show apple trees and Christmas trees, each planted
in   orderly   rows   and   individually   staked   out.7    The     ground
photographs also included several photographs of the pre- and

post-harvest hayfield.        Mr. Ogden further presented over 100
pages of expense reports, invoices, receipts, equipment rental
agreements, and checks showing the Ogdens' farming expenses for
the years 2011 through 2016.8




      7
      Therese Mahoney-Ogden testified that she and her husband
staked out the trees because the Assessor told them to do so
when he first classified the two lots as "agricultural land" in
2012.
      8While some of this documentation includes services
performed on the Ogdens' residential lot, most of the
documentation was for services performed on the two lots at
issue.


                                    5
                                                                             No.        2017AP516



       ¶12     The Ogdens called a local farmer, Lloyd Williams, as a
witness.        Mr. Williams testified that he and Mr. Ogden have
"farmed [the lots] since 2012.                       We have plowed it.            We tilled
it. . . . And          if    Mr.       Ogden    gets    cattle      some    day,    we      will
hopefully work out a shared agreement where we can continue to
do    this   in   the        future."          Mr.    Williams      testified      on    cross-
examination that he "[a]bsolutely, without a doubt" planted hay
in the Ogden's hayfield.                   He elaborated that the Ogden's land
had    "extremely       good       soil"   and       that the Ogdens        "fertilize        it
properly."        Mr. Williams explained that the three-acre hayfield
"produces 150 bales per acre," totaling approximately 450 bales
of hay from the entire field.                          Mr. Williams also reaffirmed

statements he made in a letter to Mr. Ogden dated three days
before the hearing.                The letter was admitted into evidence at
the hearing and stated:                  "In 2012, we seeded alfalfa and brome
grass    and    used        it   for    cattle       feed.     We    have   established        a
beautiful hay field that we have continually harvested every
year.    We will again be harvesting the hay crop in 2016 . . . ."

       ¶13     The Assessor also testified before the Board.                                 The
Assessor explained the basis for his determination that the two
lots    were      no    longer          entitled       to    the    "agricultural          land"
classification:

       Now, the issue is that the Ogdens may say well, they
       have a tree orchard and they are doing it for ag use.
       I   can't    really  substantiate . . . whether   [Ms.
       Mahoney-Ogden] is doing it for personal or she is
       doing it for actual agricultural economic benefit, I
       can't determine that.   And that is why I am seeking
       and have asked for all of this documentation because——

                                                 6
                                                  No.   2017AP516


    and the same goes for the trees, the Christmas tree
    farm.

         . . . .

    Now, I am, okay, looking at this and going, okay, does
    the property taxpayer carry on an activity like a
    business.  Because that is what ag use is about.    Ag
    use is really for farmers; right?        It is about
    farming.

    And so, given that the physical evidence for me was
    difficult to substantiate[9], I went to documentation.
    And I mean, if you are going to be in ag use, I think
    you should be held to the same standards as the
    farmers are held to.       And I am sure that [Mr.
    Williams] files . . . a Schedule F profit and loss.
    And I mean if I were running a business, I would.

         . . . .

    [T]here should be a relationship between [Mr. Ogden
    and Mr. Williams] because they're [sic] supposed to be
    a transaction going on, per the contract.    So, there
    is just a bad feeling that I got. You know, this is
    actually being done because there is no doubt, okay,
    there is a significant tax benefit that is going on
    for [the Ogdens] to be able to get the ag use. . . . I
    guess I was just looking for things to be much more
    clear-cut, everything flowing through because [Mr.
    Ogden] had set up this tree farm account. . . . I went
    through and I looked at the receipts and I tabulated
    the number of trees that the receipts were in there
    for. And I mean, again, and if you are doing ag use,
    you're doing this to generate an income. . . . Well,
    if you are going to be in ag use, you're going to be
    in business and you better be on top of it. I have my

    9  The Assessor had previously testified that it may
sometimes   be  difficult   to   obtain   physical  evidence of
agricultural use because "when you have a pasture and somebody
cuts it, unless I am there, okay, to actually see it, I really
have a difficult time finding the physical evidence."

     Although the Ogdens invited the Assessor to view the two
lots, the Assessor declined to do so.


                               7
                                              No.   2017AP516


own business. . . . I expected as a business person as
somebody in ag use to be on top of it.

    . . . .

And when I looked at the documentation, I just did not
get a good feeling.        Me professionally that if
somebody looked behind me that they would look at this
and they would question whether this tree farm was
being done actually for agricultural reasons, to
generate a profit for business, or was it being done
to obtain significant property tax savings.

    . . . .

You know, unfortunately, the ag use program you would
think it was really developed for the farmers.     In
reality there are so many loop holes that people can
take advantage.   If you truly knew what went on, you
would shake your head. . . . And I have called into
question things that, I guess, I felt professionally
that I was obligated to do. With that, in summary, I
just am going to go back to ag use is for farmers. Ag
use is for business. Okay. If you want to get into
it, okay, then you need to show that you are going to
actually be doing a business. . . . So, all things to
me just do not seem to be a business. It seems to be
an effort to make it look like a business.

    . . . .

And I am——I want to make sure that if somebody looks
behind me, that I am coming up with the right judgment
on a situation.   And I gave the, you know, Ogden the
benefit of the doubt because I let them in the ag
program. And understand somebody chooses to be in the
ag program.   I don't force anybody.    That is their
choice. I inform them of the consequences. I inform
them especially if they are taking residential land
and putting it in ag use that I am going to watch you
closely because I know what the significant tax
benefits are.    You dot your T's, you cross your
things, there is nothing that I can do. Developers do
it all of the time. Okay. Farmers do it all of the
time with residential land for individuals. And there
is nothing that I can do as long as they do it
correctly. The Ogdens simply didn't do it correctly.
I am calling them.    I can't again dispute that they

                          8
                                                                           No.     2017AP516


       have planting [sic] things, but I do not think it's
       for ag use. I do not think it's for business reasons.
       ¶14   On cross-examination,             the    Assessor      admitted       that    he
knew there were individually "staked out" apple and Christmas
trees planted "in clean rows" on the two lots.                                Nonetheless,
after doing some "soul searching," the Assessor concluded that
he did "not believe based on the documentation . . . that this
is ag use land."
       ¶15   In     sum,    the   Assessor      believed         that    he      could    not

conclusively        determine     whether       the       two    lots      were    devoted
primarily      to   agricultural     use     based        on    physical      evidence     of
farming.       He then asked the Ogdens for documentation that might
support an "agricultural land" classification for the two lots,
but because the documentation, in his view, did not sufficiently
show    that      the   Ogdens    "carr[ied]         on    [the]    activity        like    a
business," the Assessor concluded that the two lots were not
entitled to be classified as "agricultural land."
       ¶16   During        deliberations,       Board      member       Edward      Kranick
expressed that he had

       [not] seen where it's necessary to really have a
       business in all of these exhibits and in the guide for
       the board of review.    I have just seen that it's a
       use, that it has       to be devoted primarily to
       agricultural use, and that it's being used in a way
       for agricultural use.

             . . . .

       [T]here  is——Christmas——there  are   trees  that  are
       planted in a systemic [sic] way that appears to be in
       the use to be used eventually once they mature to be
       farmed and that the [hay is] being taken off and that
       there are orchards. That is what I am hearing. If I


                                           9
                                                       No.   2017AP516


      am not hearing that or if that is not what other
      people are hearing, please correct me or enlighten me.
      ¶17   The chairman of the Board, Paul Kanter, engaged in the
following exchange with counsel for the Board:

      [Kanter]: As to farming, you would agree that it's
      [sic] intent here is to protect a business concern,
      not    horticulture  as   our   ordinance   defines
      horticulture . . . .

      [Counsel]: There does need——Actually in the assessor's
      manual it makes [a] distinction between gardens and
      actual crop production.   There does have to be some
      kind of a commercial interest in order for it to be
      separate from a personal garden where you're using it
      yourself. You need to have some interest in actually
      selling the product.
      ¶18   Board member Larry Krause stated that, in his view,
the two lots do "meet the definition, very loose definition, of
agricultural land."    But, Mr. Krause added that "we are bound to
take the word of our assessor. . . . He has the final word."
      ¶19   Board member Billy Cooley expressed concern that the

Ogdens had "planted bird houses" in the hayfield resulting in a
slightly decreased hay yield.10    Mr. Cooley characterized the two
lots as a "gentleman's farm" befitting a horticulturalist, as
opposed to a "farming operation."
      ¶20   The Board's vote on whether to sustain the Assessor's
reclassification of the two lots resulted in a tie:        Mr. Kanter
and   Mr.   Kranick   voted   against   sustaining   the   Assessor's
reclassification of the two lots as "residential," while Mr.

      10
       Mr. Ogden testified that he installed birdhouses "around"
the hayfield, meaning around its perimeter, not in the middle of
it.


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                                                                                  No.     2017AP516



Cooley     and        Mr.   Krause        voted     in     favor      of     sustaining         the
Assessor's       reclassification.                Because        of   the    tie        vote,   the
Assessor's decision to reclassify the two lots as "residential"
was sustained.
     ¶21        The    Ogdens       petitioned      the     Waukesha         County       Circuit
Court     for    certiorari         review    of     the        Board's     decision.           The
circuit court concluded that the two lots did not "pass the eye
test," and dismissed the Ogdens' petition.
     ¶22        The    Ogdens       appealed,        and        the   court        of      appeals
reversed.         The       court    of    appeals        concluded        that    a      business
purpose     was       not     necessary       for        land    to    be     classified        as
"agricultural land" for property tax purposes.                                 The court of

appeals         further          concluded        that     because          the         assessor's
determination of the appropriate classification was driven by
his erroneous understanding of the law, the proper disposition
was to order the circuit court to remand the cause to the Board
in order to "assess the Trust property anew in a manner that is
not inconsistent with" the court of appeals' decision.11

                                              II
     ¶23        The instant case arrives at this court for certiorari
review     pursuant         to    Wis.    Stat.     § 70.47(13)            (2015-16).12          In
certiorari review under § 70.47(13), "we review the Board of
Review's decisions, not the decisions of the circuit court or

     11   Ogden Family Trust, 381 Wis. 2d 161, ¶25.
     12All subsequent references to the Wisconsin Statutes are
to the 2015-16 version unless otherwise indicated.


                                              11
                                                                       No.     2017AP516



court of appeals, although we benefit from their analyses."13                        We
are confined to "the record made before the board of review,"14
and   our    review   is   limited     to    deciding    "whether      the     board's
actions were (1) within its jurisdiction; (2) according to law;
(3) arbitrary, oppressive, or unreasonable and represented its
will and not its judgment; and (4) supported by evidence such
that the board might reasonably make the order or determination
in question."15
      ¶24    Review   in    the   instant     case     falls   under     the    second
factor:      the Ogdens claim that the Board did not act according
to law because it based its decision on the erroneous belief
that a business purpose was required in order for land to be

classified     as   "agricultural      land"     for    property   tax       purposes.
Whether the Board acted according to law is a question of law
that we decide independently.16             Resolving this question requires
the   interpretation       of   our   statutes    and    administrative         rules,




      13
       Thoma v. Village of Slinger, 2018 WI 45, ¶10, 381
Wis. 2d 311, 912 N.W.2d 56; see also Sausen v. Town of Black
Creed Bd. of Review, 2014 WI 9, 352 Wis. 2d 576, 843 N.W.2d 39.
      14
       Saddle Ridge Corp. v. Bd. of Review, 2010 WI 47, ¶36, 325
Wis. 2d 29, 784 N.W.2d 527.
      15   Sausen, 352 Wis. 2d 576, ¶6 (footnote omitted).
      16
       Steenberg v. Town of Oakfield, 167 Wis. 2d 566, 571, 482
N.W.2d 326 (1992); Lloyd v. Bd. of Review, 179 Wis. 2d 33, 36,
505 N.W.2d 465 (Ct. App. 1993).


                                        12
                                                                      No.   2017AP516



which is also a matter of law that we decide independently of
the Board of Review, circuit court, and court of appeals.17
                                           III
      ¶25    We conclude that          when it based its            decision    on    an
erroneous belief that a business purpose was required in order
for land to be classified as "agricultural land" for property
tax purposes, the Board did not act according to law.
      ¶26    Our       analysis    rests   on    the   plain    language       of    the
applicable statutes and administrative rules.
      ¶27    Our procedures for interpreting statutes are familiar,
and   they       are    equally    applicable     to   the     interpretation        of
administrative rules.18            "We begin with the statute's language

because we assume that the legislature's intent is expressed in
the words it used."19             "Statutory language is given its common,
ordinary,        and    accepted     meaning,     except     that     technical      or
specially-defined words or phrases are given their technical or
special     definitional      meaning."20         If   the     statutory    language
yields a plain meaning, "we ordinarily stop the inquiry."21


      17
       Orion Flight Servs., Inc. v. Basler Flight Serv., 2006 WI
51, ¶¶16-18, 290 Wis. 2d 421, 714 N.W.2d 130.
      18   Id., ¶18; see also Wis. Stat. § 227.27(1).
      19
       State v. Reed, 2005 WI 53, ¶13, 280 Wis. 2d 68, 695
N.W.2d 315; see also State ex rel. Kalal v. Circuit Ct., 2004 WI
58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
      20   Kalal, 271 Wis. 2d 633, ¶45.
      21   Id.


                                           13
                                                                             No.     2017AP516



     ¶28     The Ogdens claim that the two lots are entitled to be
classified         as     "agricultural           land."              Wisconsin         Stat.
§ 70.32(2)(c)1g.          defines     "[a]gricultural            land"         as     "land,
exclusive of buildings and improvements and the land necessary
for their location and convenience, that is devoted primarily to
agricultural use."22

     ¶29     The    statute      further    defines        the    term    "agricultural
use" to mean "agricultural use as defined by the [D]epartment of
[R]evenue by rule and includes the growing of short rotation
woody     crops,    including       poplars      and   willows,        using        agronomic
practices."23
     ¶30     The        Department     of        Revenue,        by     rule,        defines

"agricultural       use"    to   include      both     "[a]ctivities         included      in
subsector 111 Crop Production, set forth in the North American
Industry     Classification          System        (NAICS),"24         and         "[g]rowing
Christmas trees or ginseng."25              "Activities included in subsector




     22   Wis. Stat. § 70.32(2)(c)1g. (emphasis added).
     23   Wis. Stat. § 70.32(2)(c)1i. (emphasis added).
     24Wis. Admin.           Code     DOR     § Tax     18.05(1)(a)          (June     2015)
(emphasis added).
     25Wis. Admin.           Code     DOR     § Tax     18.05(1)(c)          (June     2015)
(emphasis added).


                                            14
                                                                      No.   2017AP516



111   Crop    Production,"        include    "growing      apples"    and   "growing

hay."26
      ¶31    As the court of appeals correctly emphasized, it is of
great import that the relevant statutes and administrative rules
refer to "growing" the relevant crops——here, Christmas trees,
apples,      and    hay——not      marketing,    selling,      or    profiting   from
them.27
      ¶32    A business purpose is not required in order for land
to    be    classified       as   "agricultural      land"    for    property    tax
purposes.       No statute, administrative rule, or case law supports
a    business      purpose    requirement      for   the     "agricultural      land"
property tax classification.28              To require a business purpose for

land to be classified as "agricultural land" for property tax
purposes would require the court to impermissibly insert such a

      26Office of Mgmt. & Budget, Exec. Office of the President,
North American Industry Classification System (NAICS), United
States,      1997,    at     86,     90     (emphasis     added),
https://www.census.gov/eos/www/naics/2017NAICS/2017_NAICS_Manual
.pdf.
      27   Ogden Family Trust, 381 Wis. 2d 161, ¶6.
      28
       Indeed, the Board appears to have largely abandoned its
position that a business purpose is required in order for land
to be classified as "agricultural land."

     The Board does make an undeveloped argument related to
estoppel that it raised for the first time before this court.
"As a general rule, we will not consider for the first time on
appeal an issue not raised in the circuit court, particularly
when, as here, the issue is undeveloped . . . ." The Lamar Co.,
LLC v. Country Side Rest., Inc., 2012 WI 46, ¶31 n.15, 340
Wis. 2d 335, 814 N.W.2d 159. We decline to address the Board's
undeveloped argument.


                                         15
                                                                             No.    2017AP516



limitation     into     a    clear     and        unambiguous       set     of     statutory
provisions and administrative rules.29
      ¶33   The   plain      language        of    the     applicable       statutes      and
rules produces a clear and unambiguous meaning.                           If the land is
devoted     primarily       to    "agricultural          use"     as   defined       by   our
statutes and rules, that use need not be carried out for a
business     purpose        in    order      for     the     land      to     qualify      as
"agricultural land" for property tax purposes.
                                             IV
      ¶34   Ordinarily,          if   the    court       "finds    any      error    in   the
proceedings of the board which renders the assessment or the
proceedings void, it shall remand the assessment to the board

for     further   proceedings          in     accordance          with       the     court's
determination . . . ."30
      ¶35   Neither party urges this court to remand the cause to
the Board to re-determine the proper classification of the two
lots.
      ¶36   The evidentiary record before the Board conclusively

shows that the two lots are "devoted primarily to agricultural
use," and thus, are entitled to be classified as "agricultural
land."



      29
       See Lincoln Sav. Bank, S.A. v. DOR, 215 Wis. 2d 430, 446,
573 N.W.2d 522 (1998).
      30
       Wis. Stat. § 70.47(13); Saddle Ridge, 325 Wis. 2d 29, ¶41
n.22; see also Nankin v. Village of Shorewood, 2001 WI 92, ¶21,
245 Wis. 2d 86, 630 N.W.2d 141.


                                             16
                                                                       No.        2017AP516



       ¶37    The phrase "[l]and devoted primarily to agricultural
use" is defined by applicable provisions of the tax code.                           These
provisions of the tax code apply in the instant case because
they    "provide         definitions   and    procedures"      used   by     "municipal
assessors           to      classify         certain      real        property          as
agricultural . . . ."31
       ¶38    The tax code, Wis. Admin. Code DOR § Tax 18.05(4),
defines "[l]and devoted primarily to agricultural use" to mean
"land in an agricultural use for the production season of the
prior       year,    and    not   in   a     use   that   is     incompatible         with
agricultural use on January 1 of the assessment year."32
        ¶39   Thus, a lot will constitute "land devoted primarily to

agricultural use" if, during the applicable time period, the lot
is primarily, that is, chiefly, put towards agricultural use.
        ¶40   In the instant case, the applicable "agricultural use"
to which the land is put is the growing of Christmas trees,
apples, and hay.33
        ¶41   Thus, the question presented is whether, during the

production season of 2015, the two lots were chiefly put towards
the growing of Christmas trees, apples, and hay; and whether, on
January 1, 2016, the two lots were put towards a use that was



       31   Wis. Admin. Code DOR § Tax 18.04 (June 2015).
       32   Wis. Admin. Code DOR § Tax 18.05(4) (June 2015).
       33
       See Wis. Admin. Code DOR §§ Tax 18.05(1)(a)                            &    (1)(c)
(June 2015); NAICS Manual, supra note 26, at 86, 90.


                                             17
                                                                  No.        2017AP516



not incompatible with the growing of Christmas trees, apples,
and hay.
      ¶42    The evidentiary record confirms that the Ogdens met
their burden of proving that the Assessor's reclassification of
the   two    lots   as   "residential"    was     erroneous.34         The    record
demonstrates that, during the production season of 2015, the two
lots were chiefly put towards the growing of Christmas trees,
apples, and hay, and on January 1, 2016, the two lots were not
put towards a use that was incompatible with the growing of
Christmas trees, apples, and hay.
      ¶43    As we detailed at length above,35 the Ogdens maintain a
barn and a one-acre apple orchard on the smaller of the two

lots, the remainder of the lot consisting of untillable forest.
The   apples    trees are    individually staked          out   and    planted     in
clean rows.         The larger of the two lots contains a four- to
five-acre Christmas tree farm and a three-acre hayfield.                          The
Christmas trees, like the apple trees, are individually staked
out and planted in clean rows.           Mr. Williams testified at length

that he and Mr. Ogden have consistently planted and harvested
hay in the hayfield and planned to harvest the field again in
2016.       Indeed, the Assessor admitted that he knew there were
apple and Christmas trees growing on the property and that these
trees were "staked out" "in clean rows."

      34
       Thoma, 381         Wis. 2d 311,     ¶10;     see    also       Sausen,     352
Wis. 2d 576, ¶10.
      35   See supra ¶¶9-13 and accompanying footnotes.


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                                                                          No.     2017AP516



      ¶44      The evidentiary record shows that the two lots are
"devoted       primarily     to    agricultural            use."     Accordingly,        we
conclude as a matter of law that the lots are entitled to be
classified as "agricultural land."                     Remand for the purpose of
re-determining the proper classification is unnecessary in the
instant case.
      ¶45      However, the Board is tasked with affixing a value to
the two lots.          For that limited purpose, we remand the cause to
the Board.
                                            V
      ¶46      We conclude that a business purpose is not required in
order    for    land    to   be    classified         as   "agricultural        land"   for

property tax purposes.             So long as land is devoted primarily to
"agricultural use" as defined by our statutes and rules, that
use need not be carried out for a business purpose in order for
the   land to       qualify as "agricultural                land"   for   property tax
purposes.
      ¶47      We further conclude that, under the circumstances of

the instant case, the record conclusively demonstrates that the
two lots at issue are entitled to be classified as "agricultural
land."      Therefore, we remand the cause to the circuit court with
instructions that the circuit court order the Board:                               (1) to
overturn the Assessor's assessment and classify the appropriate
portions       of    the     two     lots        as    "agricultural        land"       and
"agricultural forest land"; and (2) to affix a valuation to the
two lots.


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                                                                No.   2017AP516



     By   the   Court.—The   decision   of   the   court   of     appeals   is
affirmed and the cause is remanded to the circuit court.




                                   20
                                                                   No.    2017AP516.rfd


     ¶48   REBECCA FRANK DALLET, J.              (concurring).           I agree with
the majority that a business purpose is not required for land to
be classified as "agricultural land" for property tax purposes
and that the decision of the court of appeals should therefore
be   affirmed.         I     disagree,       however,     with    the      majority's
conclusion that this court may classify the two lots at issue as
"agricultural land" as a matter of law.
     ¶49   The   statute       governing       this     court's    review     of     the
instant case states, in relevant part:

     If the court on the appeal finds any error in the
     proceedings of the board which renders the assessment
     or   the  proceedings  void,  it  shall   remand  the
     assessment to the board for further proceedings in
     accordance with the court's determination and retain
     jurisdiction of the matter until the board has
     determined an assessment in accordance with the
     court's order.
Wis. Stat. § 70.47(13) (emphasis added).
     ¶50   The statute is unambiguous.                The majority determined,

and I agree, that the Board of Review for the Town of Delafield
acted in error because it based its decision on the belief that

a business purpose was required in order to classify land as
"agricultural land" for property tax purposes.                    Pursuant to Wis.

Stat. § 70.47(13), the assessment is therefore void and must be
remanded   to    the       Board   for   a    new     assessment,        including     a
redetermination of the appropriate classification for the two
lots.
     ¶51   An assessment begins by properly classifying the land
to be assessed.        The assessment process, as described by the
Wisconsin Property Assessment Manual, requires real property to

                                         1
                                                        No.   2017AP516.rfd


"first be classified by use and then be assigned a value."1
"Classification" of property is therefore not separate from its
"assessment."      Instead, they are both part of the assessment
process which, in this case, is now void.
      ¶52   If there was any doubt about the meaning of Wis. Stat.
§ 70.47(13), one need only look at our cases interpreting this
statute.    In Nankin v. Village of Shorewood, 2001 WI 92, ¶¶ 20-

21, 245 Wis. 2d 86, 630 N.W.2d 141, this court stated:

      [T]he court may not conduct its own factual inquiry
      and may not admit any new evidence. . . .    The court
      will not make an assessment of the property; instead,
      if it finds any error that renders the assessment
      void, the court must set aside the assessment and
      remand   to   the board   for   further   proceedings.
      (Emphasis added.)
Further, in Waste Mgmt. of Wisconsin, Inc. v. Kenosha Cty. Bd.
of Review, 184 Wis. 2d 541, 566, 516 N.W.2d 695 (1994), we
emphasized that:

           A court's function is not to make an assessment
      of the real estate or to substitute its judgment for
      that of a board of review. Instead, a court's duty is
      to set aside a board of review's determination if it
      finds upon the undisputed evidence that the assessment
      was not established in accordance with [Wis. Stat. §]
      70.32(1) . . . .
      ¶53   By declaring as a matter of law that the two lots are
entitled to be classified as "agricultural land" for property
tax   purposes,   the   majority   exceeds   the   statutorily    limited



      11 Wisconsin Property Assessment Manual (2015) at 1-10; see
also Wis. Stat. § 70.32(1):    "Real property shall be valued by
the assessor in the manner specified in the Wisconsin property
assessment manual . . . ."


                                    2
                                                                          No.   2017AP516.rfd


judicial review procedures applicable to certiorari review.                                As
we have previously declared:                 "[o]n certiorari review, a court
does not retry the facts . . . ."                     Sausen v. Town of Black Creek

Bd. of Review, 2014 WI 9, ¶ 46, 352 Wis. 2d 576, 843 N.W.2d 39.
As noted by the court of appeals, the record below includes an
abundance of testimony regarding whether apple trees, pine trees
intended      to    serve     as   Christmas         trees,   and   hay    were    in    fact
planted and growing on the Ogden's property.                         See State ex rel.
Peter Ogden Family Trust of 2008 v. Board of Review for Town of

Delafield, 2018 WI App 26, ¶ 25, 381 Wis. 2d 161, 911 N.W.2d
653.       This court may not, as the Board and the Ogdens request,
review the evidentiary record before the Board and substitute
itself as the fact finder as to whether the land was "devoted
primarily to agricultural use."2                 This is the job of the Board.
       ¶54    We have found an error in the Board's proceedings that
voids the assessment.              Accordingly, we are required to remand to
the circuit court with instructions to remand to the Board to

reassess      the       two   lots   anew,       a    process    that      includes      both
classification of property and assignment of a property's value.
       ¶55    For the foregoing reasons, I concur.
       ¶56    I    am    authorized     to     state      that      Justice     ANN     WALSH
BRADLEY joins this concurrence.


       2
       As noted by the majority, the Board and the Ogdens both
ask the court to review the record and classify the two lots as
a matter of law. Majority op., ¶ 6 n.4. The Board asks us to
classify the two lots as "residential" while the Ogdens assert
that we should classify the two lots as "agricultural land."
Id.


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