Donald J. Thoma v. Village of Slinger , 381 Wis. 2d 311 ( 2018 )


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    2018 WI 45
    SUPREME COURT               OF    WISCONSIN
    CASE NO.:                 2015AP1970 & 2016AP2528
    COMPLETE TITLE:           Donald J. Thoma and Polk Properties LLC,
    Petitioners-Appellants-Petitioners,
    v.
    Village of Slinger,
    Respondent-Respondent.
    REVIEW OF DECISION OF THE COURT OF APPEALS
    (2015AP1970) AND ON BYPASS FROM THE COURT OF
    APPEALS (2016AP2528)
    Reported at 
    373 Wis. 2d 766
    , 
    895 N.W.2d 854
                                             (2017 – Unpublished)
    OPINION FILED:            May 10, 2018
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:            February 21, 2018
    SOURCE OF APPEAL:
    COURT:                 Circuit
    COUNTY:                Washington
    JUDGE:                 Andrew T. Gonring
    JUSTICES:
    CONCURRED:
    DISSENTED:             ROGGENSACK, C.J., dissents, joined by ZIEGLER,
    J. (opinion filed).
    NOT PARTICIPATING:      KELLY, J., did not participate.
    ATTORNEYS:
    For        the     petitioners-appellants-petitioners,          there     were
    briefs filed by Erik S. Olsen, Andrew D. Weininger, and Eminent
    Domain Services, LLC, Madison. There was an oral argument by
    Erik S. Olsen.
    For the respondent-respondent, there was a brief filed by
    Dustin T. Woehl, Thomas A. Cabush, and Kasdorf Lewis & Swietlik,
    SC, Milwaukee.            There was an oral argument by Thomas A. Cabush.
    There        was   an   amicus    curiae   brief   filed   on    behalf    of
    Wisconsin Farm Bureau Federation by H. Dale Peterson, John J.
    Laubmeier, and Stroud, Willink, & Howard, LLC, Madison.          There
    was an oral argument by H. Dale Peterson.
    There was an amicus curiae brief filed on behalf of the
    Wisconsin REALTORS Association, Wisconsin Builders Association,
    and   NAIOP-WI   by   Thomas   D.   Larson   and   Wisconsin   REALTORS
    Association, Madison.
    2
    
    2018 WI 45
                                                                     NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.       2015AP1970 & 2016AP2528
    (L.C. No.    2014CV700)
    STATE OF WISCONSIN                             :            IN SUPREME COURT
    Donald J. Thoma and Polk Properties LLC,
    Petitioners-Appellants-Petitioners,                     FILED
    v.                                                         MAY 10, 2018
    Village of Slinger,                                                 Sheila T. Reiff
    Clerk of Supreme Court
    Respondent-Respondent.
    REVIEW of a decision of the Court of Appeals and APPEAL
    from an order of the Circuit Court for Washington County, Andrew
    T. Gonring, Judge.         Affirmed.
    ¶1      REBECCA     GRASSL   BRADLEY,   J.     We   accepted       review      in
    these      cases1   to    decide    whether   an     injunction        prohibiting
    1
    This is a consolidated review of two cases:     The first
    case, 2015AP1970, came to us via a petition for review of Thoma
    v. Village of Slinger, No. 2015AP1970, unpublished slip op.
    (Wis. Ct. App. Jan. 18, 2017), and the second case, 2016AP2528,
    came to us via a petition to bypass the court of appeals' review
    of the Hon. Andrew T. Gonring's order denying a Wis. Stat.
    § 806.07 motion to vacate.     These two cases share the same
    circuit court case number as they both arise from the same
    underlying matter.
    No.        2015AP1970 & 2016AP2528
    agricultural use of a residentially-zoned property controls the
    property's tax assessment classification.                      As it turns out, all
    parties agree that the classification of real property for tax
    purposes is based on the actual use of the property, and that an
    injunction obtained based on a restrictive covenant does not
    control tax assessment classification.                   This is in fact the law
    in Wisconsin.           See Wis. Stat. § 70.32(2)(a) (2013-14).2
    ¶2        What   remains   to   be    determined        in    this    consolidated
    appeal is:         (1) whether Donald J. Thoma and Polk Properties LLC
    (Thoma) presented sufficient evidence to the Village of Slinger
    Board of Review to overturn the 2014 tax assessment, and (2)
    whether the circuit court erroneously exercised its discretion
    when it denied Thoma's Wis. Stat. § 806.07(1)(h) motion asking
    the circuit court to vacate its original order affirming the
    Board's decision and remand to the Board for a new hearing.
    Because the record before the Board contains no evidence that
    Thoma used the property agriculturally within the meaning of
    Wisconsin tax law, we hold the Board's decision upholding the
    tax assessment was lawful, supported by a reasonable view of the
    evidence, and therefore cannot be disturbed.                           We further hold
    that       the    circuit    court     did       not   erroneously          exercise   its
    discretion when it denied Thoma's request to vacate the original
    order.       Accordingly, we affirm the decision of the court of
    2
    All subsequent references to the Wisconsin Statutes are to
    the 2013-14 version unless otherwise indicated.
    2
    No.    2015AP1970 & 2016AP2528
    appeals in 2015AP1970, and we affirm the order of the circuit
    court in 2016AP2528.
    I.     BACKGROUND
    ¶3     This       case    centers          on    Thoma's      challenge       to    the
    Village of Slinger's 2014 property tax assessment for property
    he   purchased      in    2004    and        has      attempted       to     develop       into    a
    residential        subdivision          known           as     Pleasant        Farm       Estates.
    Before     Thoma   purchased          the       land,    it    operated       as    a    farm    and
    received     an    agricultural             classification            for     tax       assessment
    purposes.     The Village of Slinger continued to classify Thoma's
    property as agricultural until the 2014 assessment.
    ¶4     In attempting to develop Pleasant Farm Estates, Thoma
    worked     with    the    Village          of    Slinger       to     rezone       the    area    to
    residential so individual lots could be sold for construction of
    single family homes.             Other lots were intended for construction
    of condominiums.         Thoma and the Village of Slinger entered into
    a    Developer's     Agreement,             which       set    forth        three       phases    of
    development.             The     Agreement              also     contained          restrictive
    covenants, one of which prohibited Thoma from using the land for
    agriculture——Thoma's use had to be residential.3                                Only two lots
    were actually sold and the property remains mostly vacant land.
    3
    The exact language of the restrictive covenant is unknown
    because this document is not in the record.     Nevertheless, for
    purposes of our review, there is no dispute that the Village of
    Slinger obtained an injunction based on a restrictive covenant
    requiring Thoma to limit the property to residential use and
    cease engaging in any agricultural activity on the property.
    3
    No.   2015AP1970 & 2016AP2528
    The vacant land has ground cover, which is maintained by regular
    mowing.
    ¶5         In 2011, the Village of Slinger filed suit against
    Thoma     to     enforce     the     restrictive       covenant         and    in   2012
    successfully obtained an injunction prohibiting Thoma from using
    the land for agricultural purposes.                   See Vill. of Slinger v.
    Polk Prop. LLC, Washington Cty. Circuit Ct. Case No. 2011CV1224.
    The injunction lawsuit occurred contemporaneously with Thoma's
    tax assessment challenge, and Thoma's appeal in the injunction
    lawsuit is currently pending in the court of appeals.                          See Vill.
    of Slinger v. Polk Prop. LLC, 2017AP2244 (Record transmitted to
    court of appeals on Feb. 27, 2018).
    ¶6         In order to contest his 2014 tax assessment, Thoma and
    his counsel appeared before the Village of Slinger Board of
    Review for a hearing in June 2014.                  Three witnesses were sworn
    to testify:        Thoma; his counsel; and the Village of Slinger's
    assessor, Michael Grota.                 Thoma testified that he thought the
    property should be classified as agricultural because that was
    the classification it carried the prior year.                       Thoma contended
    the 62 acres had zero value.               Thoma urged the Board to apply the
    agricultural classification because nothing had changed on the
    property from the previous year, he maintained ground cover on
    the vacant land, and he was having trouble selling the lots.                          He
    shared    with    the   Board      vague     information        about    a    few   other
    residential development projects that were also struggling and
    claimed    that     market      value      for    these     projects     had     dropped
    substantially.          Thoma      did    not    present    any   documentation        to
    4
    No.      2015AP1970 & 2016AP2528
    support     these      statements,      and       he    offered        no     testimony     or
    evidence that the property was being used for farming or that he
    was harvesting crops for food or fiber.                      Although Thoma left the
    hearing early to attend a funeral, his counsel remained and
    reaffirmed       several     times     that        Thoma       was     not     farming     the
    property; rather, he was "just maintaining the ground cover," as
    well as "maintain[ing] the property, to try to sell the lots,"
    and "keeping the ground cover maintained and – and making sure
    that they're appropriate for – for sale . . . it's not farming,
    it's just kind of maintaining the – the property."
    ¶7       Assessor    Grota     testified          that      he   changed      the    use
    classification from agricultural to residential because it was
    his     understanding        that      the         injunction          prohibiting         any
    agricultural use on the property required the property to be
    classified as residential for tax assessment purposes.                                   Grota
    said his opinion was based on his conversation with Patrick
    Chaneske,       "the    Regional     Supervisor             for      the     Department     of
    Revenue, in charge of Equalization in Southeastern Wisconsin."
    Grota      submitted      comparable     sales         of    similar         properties     to
    support the numbers he used to reach his assessment.
    ¶8       The Board's attorney advised the Board members that
    maintaining       ground    cover      was       not    sufficient           to   obtain    an
    agricultural use classification:                  "Well, let me clarify.                 If it
    is simply maintaining ground cover, it's not an ag[ricutural]
    use."      Ultimately, the Board voted 2-1 to uphold the assessor's
    assessment because Thoma failed to submit sufficient evidence to
    prove    the    assessor's     number        (or       classification)            was   wrong:
    5
    No.   2015AP1970 & 2016AP2528
    "There's      a   motion   on   the   table   to    uphold   the   assessor's
    assessment of the property values.            Since the objector did not
    provide adequate evidence in rebuttal and we will now take a
    roll       call   vote."        Two   of   the     Board's    members    voted
    affirmatively.       The third Board member voted against the motion
    because she believed, based on her personal observation, that
    Thoma was using the property for what she believed qualified as
    agricultural use——"I've seen the guy on the tractor with the
    bailer."4
    4
    This court is troubled by the peculiarities in the Board
    of Review's record in this matter. First, the Board of Review's
    Transcript notes that only two documents were marked:         The
    "Developer's Agreement" was marked as Exhibit 31 and the
    "Assessor's Presentation" was marked as Exhibit 51.           The
    transcript   contains   testimony   regarding   the   Developer's
    Agreement.   Yet, the record the Board sent with the return of
    the Writ does not contain any exhibit marked 31 or 51.        The
    Board's record does contain a CD marked as "Exhibit 7" which
    contains "Polk Property Assessor's records" but does not contain
    anything purporting to be the Developer's Agreement. There is a
    nine-page document labeled "Amended Developers' Agreement for
    Pleasant Farm Estates," but only page one of this document is
    part of the Developer's Agreement.      Disturbingly, the second
    page of this record item is from an entirely different and
    unrelated case, and the other pages are not the Developers'
    Agreement.   Second, the parties stipulated to the removal of
    Exhibit 7 from the record, and the circuit court so ordered its
    removal; the reason for its removal is absent from the record.
    Third, a DVD-R disk marked "Exhibit 1" and "Slinger BOR June 23,
    2014," is not an audio recording of the Board hearing even
    though, according to the Village of Slinger's Treasurer/Deputy
    Clerk's sworn "Return on Writ of Certiorari," it is supposed to
    be. This exhibit instead contains 96 pictures of a dilapidated
    home taken on September 2, 2013, which has nothing to do with
    Thoma's case.   Fourth, the document the Board holds out to be
    its "Findings of Fact, Determinations and Decision dated June
    23, 2014" is a form document partially filled in with only the
    number "1" circled in the "Decision" section and no further
    (continued)
    6
    No.     2015AP1970 & 2016AP2528
    ¶9      Thoma petitioned for a writ of certiorari pursuant to
    Wis.       Stat.    § 70.47(13),     and   the     circuit     court      affirmed        the
    decision of the Board in July 2015.5                Thoma appealed to the court
    of   appeals,        which   also    affirmed    the    decision         of    the    Board.
    Thoma v. Village of Slinger, No. 2015AP1970, unpublished slip
    op. (Wis. Ct. App. Jan. 18, 2017).                          In October 2016, while
    Thoma's appeal was pending in 2015AP1970, he filed a motion in
    the circuit court to vacate the circuit court's first decision
    affirming the Board, claiming that Assessor Grota gave faulty
    testimony at the Board of Review Hearing.                       Specifically, Thoma
    claimed       that    Grota     misrepresented         to    the    Board        that     the
    Wisconsin Department of Revenue required him to classify Thoma's
    property       as    residential     because      of   the     injunction.              Thoma
    asserted that the Board's decision erroneously relied on Grota's
    faulty      testimony;       therefore,    Thoma    argued,        the   circuit        court
    should vacate its original order affirming the Board and send it
    back for a new Board hearing.                    The circuit court entered an
    order      denying    Thoma's    motion    to    vacate.        Thoma         filed   a   new
    appeal,      2016AP2528,       and   petitioned     this      court      to    bypass     the
    explanation given as to the Board's decision outside of the
    hearing transcript.   We remind the Village of Slinger that its
    Board   of  Review   is  a   quasi-judicial  body  bearing  the
    responsibility to keep accurate records, in part so that courts
    can engage in a meaningful and complete review of the
    proceedings. See Darcel, Inc. v. City of Manitowoc Bd. of Rev.,
    
    137 Wis. 2d 623
    , 626, 
    405 N.W.2d 344
    (1987).
    5
    We note that the circuit's order refers to the Village of
    Slinger Board of Review as the "Board of Appeals."          This
    scrivener's error does not affect our analysis.
    7
    No.     2015AP1970 & 2016AP2528
    court of appeals so that review of this circuit court order
    could    be    consolidated       with   review       of    the        court    of   appeals
    decision.       We granted Thoma's bypass petition and consolidated
    these cases.6
    II.    STANDARD OF REVIEW
    ¶10      In certiorari review under Wis. Stat. § 70.47(13), we
    review the Board of Review's decision, not the decisions of the
    circuit court or court of appeals, although we benefit from
    their analyses.          See Sausen v. Town of Black Creek Bd. of Rev.,
    
    2014 WI 9
    , ¶¶4-5, 
    352 Wis. 2d 576
    , 
    843 N.W.2d 39
    .                                Review is
    limited to "the record made before the board of review."                              Saddle
    Ridge Corp. v. Bd. of Rev., 
    2010 WI 47
    , ¶36, 
    325 Wis. 2d 29
    , 
    784 N.W.2d 527
    .       Our review is confined to deciding "whether the
    board's       actions    were:         (1)       within    its         jurisdiction;     (2)
    according to law; (3) arbitrary, oppressive, or unreasonable and
    represented its will and not its judgment; and (4) supported by
    evidence such that the board might reasonably make the order or
    determination       in    question."             Sausen,         
    352 Wis. 2d 576
    ,      ¶6
    (footnote      omitted).         The   taxpayer       challenging          an   assessment
    based on improper classification bears the burden of proving the
    classification is erroneous.                 
    Id., ¶10. If
    the taxpayer does
    not meet his burden of proof and "the board's determination to
    6
    The document Thoma filed with this court was labeled a
    "Motion to Consolidate."    We construed it as a petition to
    bypass.
    8
    No.    2015AP1970 & 2016AP2528
    maintain the assessment is supported by a reasonable view of the
    evidence," we will affirm the Board's decision.                 
    Id. ¶11 In
    reviewing a circuit court's order denying relief
    under Wis. Stat. § 806.07(1)(h), we apply the erroneous exercise
    of discretion standard.          See Miller v. Hanover Ins. Co., 
    2010 WI 75
    , ¶29, 
    326 Wis. 2d 640
    , 
    785 N.W.2d 493
    .                   If the circuit court
    based its decision on the pertinent facts in the record, applied
    the       correct    legal     standard,      and     reached       a   reasonable
    determination, it properly exercised its discretion and we will
    uphold its decision.           See Larry v. Harris, 
    2008 WI 81
    , ¶15, 
    311 Wis. 2d 326
    , 
    752 N.W.2d 279
    .
    III.    DISCUSSION
    ¶12     Thoma wants his land classified as agricultural for
    tax assessment purposes.             His arguments before this court rest
    on three basic propositions:               (1) Thoma and Grota previously
    agreed      that    ground   cover     counted   as    agricultural      use;    (2)
    Grota's testimony that the injunction controlled over actual use
    caused the Board to reach the wrong decision; and (3) the hay
    and alfalfa being cut on his property falls under subsector 111,
    Crop Production, of the North American Industry Classification
    System     (NAICS),    which    satisfies     the   legal     tax   definition    of
    agricultural use.7
    7
    Thoma also argued that public policy supports maintaining
    an agriculture classification for land undergoing economic
    development. The Wisconsin Farm Bureau Federation submitted an
    amicus brief refuting Thoma's claim. The court appreciates the
    Farm Bureau's thoughtful recitation explaining the history of
    the   use-value  assessment   legislation  enacted  to   protect
    (continued)
    9
    No.     2015AP1970 & 2016AP2528
    ¶13      Our review is limited both by the applicable standard
    of review in certiorari actions and by the evidence presented to
    the Board at the hearing "no matter how incomplete or inadequate
    it    may     be."         See       State    ex        el.     Hemker       v.     Huggett,          
    114 Wis. 2d 320
    , 323, 
    338 N.W.2d 335
    (Ct. App. 1983).                                            These two
    constraints         lead    us   to    a     simple      conclusion:              Thoma        did    not
    present       sufficient         evidence          to     the       Board      to       support       an
    agricultural         classification           of        his     property          under       the     tax
    assessment law.            To the contrary, the evidence presented to the
    Board supports the assessor's residential classification.                                           Thus,
    we must affirm the Board's decision upholding the assessment.
    See Dempze Cranberry Co., Inc. v. Bd. of Rev., 
    143 Wis. 2d 879
    ,
    884, 
    422 N.W.2d 902
    (Ct. App. 1988); Northland Whitehall Apts.
    Ltd. P'ship v. City of Whitehall Bd. of Rev., 
    2006 WI App 60
    ,
    ¶24, 
    290 Wis. 2d 488
    , 
    713 N.W.2d 646
    .                               We must affirm even if
    Thoma and Grota wrongly believed that ground cover qualified as
    agricultural use and even if Grota classified the property as
    residential         based       on    the     injunction,            because           our     decision
    depends on the evidence before the Board and what the law is,
    not      on     off-the-record               conversations             or         an         assessor's
    misunderstanding           of    the    law.         Although          Grota      erred        both    in
    basing        his    classification            solely          on      the     injunction             and
    testifying          that    the        injunction             determined          classification,
    neither error impacts our conclusion.                           Thoma's failure to submit
    Wisconsin's farmland.
    10
    No.    2015AP1970 & 2016AP2528
    any evidence to prove agricultural activity was taking place on
    his property leaves the residential classification unrebutted,
    supported by the evidence, consistent with applicable law, and
    therefore correct.
    A.     Tax Assessment Agricultural Classification
    ¶14    Before    addressing     the    merits    of    this     case,   we   set
    forth the law applicable to tax assessment and the requirements
    for land to receive classification as agricultural.                      A property
    is assessed according to its classification, which is determined
    by its use.         Wis. Stat. § 70.32(2)(a).         There are eight classes
    of   property,       including   residential     and        agricultural.8         
    Id. Wisconsin Stat.
    § 70.32 specifically cross-references "ch. Tax
    18   Wis.    Adm.    Code,"   which   provides    that       an   assessor    "shall
    classify as agricultural land devoted primarily to agricultural
    use."       Wis. Admin. Code DOR § Tax 18.06(1).                     "'Land devoted
    primarily to agricultural use' means land in an agricultural use
    for the production season of the prior year, and not in a use
    8
    Wisconsin Stat. § 70.32(2)(a)             lists       eight    possible     use
    classifications as:
    1. Residential.
    2. Commercial.
    3. Manufacturing.
    4. Agricultural forest.
    5. Undeveloped.
    5m. Agricultural.
    6. Productive forest land.
    7. Other.
    11
    No.    2015AP1970 & 2016AP2528
    that is incompatible with agricultural use on January 1 of the
    assessment year."       Wis. Admin. Code DOR § Tax 18.05(4).9
    ¶15     Wisconsin Stat. § 70.32 also provides:            "'Agricultural
    land' means land, exclusive of buildings and improvements and
    the land necessary for their location and convenience, that is
    devoted     primarily      to     agricultural    use."         Wis.    Stat.
    § 70.32(2)(c)(1g);      and     "'Agricultural   use'   means   agricultural
    use as defined by the department of revenue by rule and includes
    the growing of short rotation woody crops, including poplars and
    willows,      using      agronomic      practices."             Wis.    Stat.
    § 70.32(2)(c)(1i).
    ¶16     The Department of Revenue defines "agricultural use"
    to mean "[a]ctivities included in subsector 111 Crop Production,
    set forth in the North American Industry Classification System
    (NAICS)."    Wis. Admin. Code DOR § Tax 18.05(1)(a).10             The NAICS
    9
    Wisconsin Admin. Code DOR § TAX 18.06(1) provides:
    Land devoted primarily to agricultural use shall
    typically bear physical evidence of agricultural use,
    such   as  furrow,   crops,  fencing,   or   livestock,
    appropriate to the production season.      If physical
    evidence of agricultural use is not sufficient to
    determine agricultural use, the assessor may request
    of the owner . . . such information as is necessary to
    determine if the land is devoted primarily to
    agricultural use.
    10
    Wisconsin Admin. Code DOR § Tax 18.05(1)(b)-(d) also
    defines "agricultural use" to mean activities relating to
    "subsector 112 Animal Production," "[g]rowing Christmas trees or
    ginseng," and "[l]and without improvements subject to a federal
    or state easement . . . ."
    12
    No.    2015AP1970 & 2016AP2528
    is   reproduced      in    full      in   the    Wisconsin      Property      Assessment
    Manual (WPAM).           The NAICS explains that "[i]ndustries in the
    crop production subsector grow crops mainly for food and fiber,"
    and the "production process is typically completed when the raw
    product or commodity grown reaches the 'farm gate' for market."
    WPAM, ch. 11, App. A-13.              It further describes "Crop Production"
    "establishments" "as farms, orchards, groves, greenhouses, and
    nurseries, primarily engaged in growing crops, plants, vines, or
    trees and their seeds."           
    Id. ¶17 We
    emphasize what is clear under applicable law and
    undisputed by the parties:                classification of real property for
    tax assessments is based on how the property is being used.                           See
    Wis.   Stat.      § 70.32(2);     Wis.     Admin.       Code    DOR   § Tax    18.05(1).
    Zoning,      injunctions,      ordinances,        and    contracts      do    not   trump
    actual use for tax assessment purposes.                   See Fee v. Bd. of Rev.,
    2003         WI      App       17,        ¶12,      
    259 Wis. 2d 868
    ,         
    657 N.W.2d 112
    ; Wis. Stat. § 70.32(2)(c)(1g);
    https://www.revenue.wi.gov/Pages/FAQS/slf-useassmt.aspx                             (last
    visited Feb. 28, 2018).               Although an injunction, contract, or
    ordinance may be presented to argue how the property is supposed
    to be used, none can be the decisive factor for tax assessment
    purposes.         Actual use controls whether property qualifies for
    agricultural        or   any   other      classification        for   tax     assessment
    purposes.         In order to obtain agricultural use classification,
    the property owner must meet the definition of agricultural use
    set forth in the statutes and tax code.
    13
    No.    2015AP1970 & 2016AP2528
    ¶18   Property falls under a residential classification if
    it is a "parcel or part of a parcel of untilled land that is not
    suitable for the production of row crops, on which a dwelling or
    other form of human abode is located and which is not otherwise
    classified under this subsection."                     Wis. Stat. § 70.32(2)(c)3.
    In   determining     "whether      vacant       land    should       be    classified     as
    residential" the following questions are considered:
       "Are the actions of the owner(s) consistent with an
    intent for residential use?";
       "Is the size of the parcel typical of residential or
    developing residential parcels in the area?";
       "Is    the    parcel     zoned      residential         or    is    residential
    zoning likely to be allowed?";
       "Is     the     parcel       located       in     a     residential        plat,
    subdivision,           CSM       or      near          other        residential
    development?";
       "Does    the    parcel's       topography         or    physical      features
    allow for residential use?";
       "Is the parcel located in an urban or rapidly changing
    to urban area, as contrasted with a location distant
    from much residential activity?";
       "Are    there    any     other        factors     affecting         the   parcel
    which    would    indicate        residential          use     is    reasonably
    likely or imminent?".
    Wisconsin Property Assessment Manual 12-1 (Rev. 12/2017).
    B.    Thoma's Burden & Presentation at the Board Hearing
    14
    No.   2015AP1970 & 2016AP2528
    ¶19        In property tax assessment challenges, the taxpayer
    bears       the    burden    of    proving     the      assessment     is   wrong.     See
    Sausen, 
    352 Wis. 2d 576
    , ¶37.                 If the taxpayer fails to meet his
    burden       of    justifying       a   change     in    the    assessment,     then   the
    Board's      only       option    is    to   accept     the    assessor's    assessment.
    This is so because a presumption attaches to the assessor's
    valuation, Wis. Stat. § 70.47(8)(i),11 and unless the taxpayer
    presents information proving the assessor's classification or
    valuation is wrong, the taxpayer is stuck with the assessment.
    See Woller v. DOT, 
    35 Wis. 2d 227
    , 232, 
    151 N.W.2d 170
    (1967)
    ("When the assessment is disputed, as here, the burden of proof
    is on the taxpayer to show error."); State ex rel. Giroux v.
    Lien, 
    108 Wis. 316
    , 318, 
    84 N.W. 422
    (1900) ("The assessment
    needs no support by evidence in the first instance, but must
    stand, unless shown to be incorrect by reasonably direct and
    unambiguous evidence.").
    ¶20        Thoma challenged his 2014 tax assessment because he
    believed the classification was wrong.                         The assessor based the
    2014    assessment          on    the   residential       classification       and   Thoma
    believed          the     property       should       have      been     classified     as
    agricultural.           Thus, Thoma had the burden to prove to the Board
    that his property was being used for agricultural use as defined
    11
    Wisconsin Stat. § 70.47(8)(i) provides: "The board shall
    presume that the assessor's valuation is correct.          That
    presumption may be rebutted by a sufficient showing by the
    objector that the valuation is incorrect."
    15
    No.       2015AP1970 & 2016AP2528
    in the tax code.               As noted, "agricultural use" bears a very
    specific meaning for tax assessment purposes.
    ¶21    Thoma      did    not    present      any    such       evidence.       Rather,
    Thoma and his attorney repeatedly denied that any farming was
    taking place.         Thoma and his attorney testified only that he was
    growing ground cover to maintain the property, hoping the lots
    could be sold for residential construction.                            This dooms Thoma's
    case.
    ¶22    Thoma's       erroneous        belief      that    growing       ground      cover
    qualified the property for agricultural classification has no
    impact on the analysis, nor does his contention that he and
    Assessor Grota privately agreed that ground cover constitutes
    agricultural use.           We must apply the law as it exists, not how a
    party or an assessor mistakes it to be.                         The law does not permit
    agricultural classification for the use Thoma told the Board
    existed      at    the   time     of    the    Board      hearing.            Because      Thoma
    admitted he was using the property only for maintaining ground
    cover,    and      ground      cover    does    not      fall     within      the   statutory
    definition of agricultural use, the Board had no choice but to
    uphold    the      assessment.          In     so   doing,       it    acted     within     its
    jurisdiction, according to law, in a reasonable manner, and with
    evidentiary support.
    ¶23    Further,      Thoma's      claim      on    appeal       that    he    was    also
    growing      and    harvesting         hay    and   alfalfa       does     not      alter    our
    decision.         We are bound by the record before the Board.                               See
    Saddle Ridge Corp., 
    325 Wis. 2d 29
    , ¶36; 
    Hemker, 114 Wis. 2d at 323
    .     Neither Thoma nor his attorney presented any testimony to
    16
    No.     2015AP1970 & 2016AP2528
    the Board that the property was being operated as a hay and
    alfalfa farm or that any crop was being grown on the property to
    be sold for food or fiber.                Instead, both adamantly denied any
    farming took place at all on the land and insisted that Thoma
    was maintaining ground cover only.                The only reference to hay at
    the Board hearing came from the Board's attorney who explained
    that if a property owner is cutting and bailing hay and using it
    to feed livestock, then the property qualifies for agricultural
    use   classification.            The     dissenting    Board     member's       comments
    could potentially be construed to support a bailing hay use,12
    but   no    one    testified      that    hay    or   alfalfa    was     being   grown,
    bailed, or sold for food or fiber.                      The Board attorney was
    simply     giving     a    hypothetical      that     hay   bailing      would    be   an
    agricultural       use——not      that    this    actually     occurred     on    Thoma's
    property.         The dissenting Board member believed something was
    being grown and bailed on the property but said nothing about it
    being sold or used for food or fiber.                   Regardless, neither the
    Board      attorney       nor   the    dissenting     Board     member    were     sworn
    witnesses.        In short, Thoma failed to present any evidence that
    his use qualified as agricultural for tax assessment purposes.
    12
    The dissenting Board member's comments included a
    response to the Board attorney's explanation about the hay,
    "That's why I'm confused. I – I was out there and I saw there
    was that going on," [sic] and a desire to classify Thoma's
    property as agricultural because the dissenting Board member
    "drove in there every day from the first house that was there,
    from '08 or whatever it was, and I've seen the guy on the
    tractor with the bailer and no zero turn was out there cutting
    grass as a residential maintenance."
    17
    No.        2015AP1970 & 2016AP2528
    ¶24     We    are    unpersuaded        by    Thoma's           attorney's       attempt
    during oral argument to establish proof of agricultural use by
    linking three statements from the hearing:                        (1) a Board member's
    personal observation of hay growing on the property in the past;
    (2) Assessor Grota's testimony that the property's past use was
    agricultural; and (3) Thoma's testimony that its use had not
    changed.      A Board member's personal observation is not testimony
    or evidence and the referenced testimony by Grota and Thoma does
    not   change       the    fact    that    ground     cover       does      not    constitute
    agricultural use for tax assessment purposes.
    ¶25     We also reject Thoma's argument that Grota's erroneous
    view of the effect of the injunction on classification requires
    a reversal for a new Board hearing.                      It is troubling that the
    Village of Slinger's assessor presented his incorrect belief to
    the   Board    about       the    impact     of    the    injunction.             We   expect
    assessors      to    know,       understand,       and    apply         the    correct    tax
    assessment laws.          Nevertheless, we are bound by the record.                       The
    transcript     of    the     proceedings      does       not     demonstrate       that    the
    Board   denied       Thoma's       challenge       based         on     Grota's    mistaken
    "injunction-controls"              belief.            Rather,            the      transcript
    establishes that the Board denied Thoma's challenge because the
    evidence indicated Thoma was maintaining ground cover on his
    land,   which        does        not     constitute       a      statutorily           defined
    18
    No.    2015AP1970 & 2016AP2528
    agricultural      use.13     Additionally,         even     though    the   assessor
    adduced     the      wrong      basis        for      selecting         residential
    classification, this property did in fact qualify as residential
    according to the statutory definition of residential use.                           It
    was untilled land not suitable for production or row crops and
    was "not otherwise classified."              See Wis. Stat. § 70.32(2)(c)3.
    And, there can be no dispute that the property was properly
    classified as residential since each of WPAM's inquiries for
    determining    whether       vacant     land       should     be     classified     as
    residential would be answered affirmatively.
    C.    Circuit Court Order Denying Thoma's Motion to Vacate
    ¶26    Thoma     next    contends    the    circuit       court    should     have
    vacated its original order affirming the Board's decision to
    uphold the assessor's assessment of his property.                     He claims the
    circuit court should have granted his request for a new Board
    hearing because of Grota's "false" testimony at the hearing that
    13
    Thoma contends the "Minutes" of the Board prepared after
    the hearing are incorporated into its Findings of Fact,
    Determinations and Decision because that Decision said "see
    attached minutes."    We reject this contention.     First, the
    Decision says "see attached minutes" but only with regard to
    "Tax Key Number." Thus, only the tax key number is incorporated
    into the Decision.   Second, although the Minutes were sent to
    the circuit court, there is nothing in the record documenting
    how the Minutes were prepared or if the three-member Board
    approved them. Moreover, in sending the Decision itself to the
    circuit court, the Village of Slinger's Treasurer/Deputy Clerk
    did not append the Minutes to the Decision. To be sure, nothing
    in the Minutes alters our determination that Thoma failed to
    present sufficient evidence to warrant a change in his 2014 tax
    assessment.
    19
    No.   2015AP1970 & 2016AP2528
    the injunction controlled the tax classification.                Because the
    circuit court did not erroneously exercise its discretion when
    it denied Thoma's motion to vacate, we reject Thoma's claim and
    affirm the circuit court's order.
    ¶27    After the circuit court affirmed the Board's decision
    and dismissed the writ for certiorari, and while Thoma's appeal
    was pending, he filed another lawsuit directly against Assessor
    Grota.       See Polk Prop., LLC v. Grota Appraisals, LLC, Waukesha
    Cty. Circuit Ct., 2016CV63.            Pursuant to that lawsuit, sometime
    in 2016, Thoma's counsel deposed Grota and Wisconsin Department
    of    Revenue    employee    Patrick    Chaneske.14     In   September   2016,
    Chaneske testified at his deposition that he never told Grota an
    injunction prohibiting agricultural use required Grota to change
    the    classification       of   Thoma's   property   from   agricultural   to
    residential.       Rather, Chaneske testified he advised Grota that
    actual use of the property controls classification.
    ¶28    Shortly after Chaneske's deposition, in October 2016,
    Thoma filed a motion asking the circuit court to exercise its
    discretionary authority under Wis. Stat. § 806.0715 to vacate its
    14
    Patrick Chaneske worked at the Wisconsin Department of
    Revenue and at the time of the events in this matter served as
    the equalization supervisor for the Milwaukee District Office to
    review and equalize assessments submitted by nine counties in
    the southeastern part of Wisconsin. As pertinent here, in 2014,
    Grota and Chaneske had telephone conversations to discuss the
    effect of the injunction on classification of Thoma's property
    for the 2014 property tax assessment.
    15
    Wisconsin Stat. § 806.07 provides:
    (continued)
    20
    No.    2015AP1970 & 2016AP2528
    Relief from judgment or order. (1) On motion and upon
    such terms as are just, the court, subject to subs.
    (2)   and  (3),   may   relieve a   party  or   legal
    representative from a judgment, order or stipulation
    for the following reasons:
    (a) Mistake,   inadvertence,     surprise,    or   excusable
    neglect;
    (b) Newly-discovered evidence which entitles a party
    to a new trial under s. 805.15 (3);
    (c) Fraud, misrepresentation, or other misconduct of
    an adverse party;
    (d) The judgment is void;
    (e) The judgment   has   been    satisfied,    released    or
    discharged;
    (f) A prior judgment upon which the judgment is based
    has been reversed or otherwise vacated;
    (g) It is no longer equitable that the judgment should
    have prospective application; or
    (h) Any other reasons justifying        relief     from   the
    operation of the judgment.
    (2) The motion shall be made within a reasonable time,
    and, if based on sub. (1) (a) or (c), not more than
    one year after the judgment was entered or the order
    or stipulation was made. A motion based on sub. (1)
    (b) shall be made within the time provided in s.
    805.16. A motion under this section does not affect
    the finality of a judgment or suspend its operation.
    This section does not limit the power of a court to
    entertain an independent action to relieve a party
    from judgment, order, or proceeding, or to set aside a
    judgment for fraud on the court.
    (3) A motion under this section may not be made by an
    adoptive parent to relieve the adoptive parent from a
    judgment or order under s. 48.91 (3) granting adoption
    of a child. A petition for termination of parental
    rights under s. 48.42 and an appeal to the court of
    (continued)
    21
    No.    2015AP1970 & 2016AP2528
    original       order    affirming          the    Board's          decision.         Section
    806.07(1)(h) allows circuit courts to relieve a party from a
    judgment or order for "[a]ny other reasons justifying relief
    from   the     operation      of     the    judgment."             
    Id. Thoma claimed
    Chaneske's deposition proved Grota presented faulty testimony to
    the    Board    and    the     Board       relied       on    the    faulty     testimony;
    consequently, Thoma argued, an injustice occurred that could be
    undone   by     vacating      the    original       order     affirming        the   Board's
    decision and sending the matter back to the Board for a new
    hearing.
    ¶29    The circuit court disagreed.                    It refused to exercise
    its discretion to vacate the original order because:                             (1) Thoma
    failed   "to    show    extraordinary            and    unusual      circumstances      that
    justify that relief" under Wis. Stat. § 806.07(1)(h); (2) when
    the circuit court reviewed the Board hearing transcript, it "was
    struck   by     the    lack    of     evidence         presented      by"    Thoma    as   he
    "supplied no proof whatsoever as to why the property should
    remain agricultural";               (3) regardless of Chaneske's testimony,
    the injunction prevented any agricultural use on the property;
    (4) the circuit court is limited to "the record made at the
    Board of Review hearing," and (5) "[t]here is something to be
    appeals shall be the exclusive remedies for an
    adoptive parent who wishes to end his or her parental
    relationship with his or her adoptive child.
    22
    No.    2015AP1970 & 2016AP2528
    said   for   the   finality     of    judgments"     particularly      when     the
    decision being challenged "was more than two years ago."
    ¶30   In deciding a Wis. Stat. § 806.07(1)(h) motion, the
    circuit court should "examine the allegations accompanying the
    motion,"     assume   they   are     true,    and   determine      whether    they
    present "extraordinary or unique" facts justifying relief under
    paragraph (1)(h).        Sukala v. Heritage Mut. Ins. Co., 
    2005 WI 83
    ,
    ¶10,   
    282 Wis. 2d 46
    ,     
    698 N.W.2d 610
    .         "[T]he    circuit   court
    should consider whether unique or extraordinary facts exist that
    are relevant to the competing interests of finality of judgments
    and relief from unjust judgments."               
    Id., ¶11. If
    the circuit
    court finds extraordinary or unique facts from its review of the
    motion materials, it should hold a hearing to decide "the truth
    or falsity of the allegations."                
    Id., ¶10. We
    conclude the
    circuit court did not erroneously exercise its discretion.
    ¶31   As a preliminary matter, we note that because Thoma's
    motion was made more than two years after the Board's decision
    and more than a year after the circuit court's order affirming
    the Board's decision, Thoma's only avenue for relief was under
    Wis.   Stat.     § 806.07(1)(h)——the         catchall     "justice"    provision.
    Thoma could not seek relief under Wis. Stat. § 806.07(1)(a)'s
    "mistake,       inadvertence,        surprise,      or    excusable      neglect"
    paragraph;     (1)(b)'s    "newly-discovered        evidence"      paragraph;    or
    (1)(c)'s       "fraud,    misrepresentation         or     other      misconduct"
    paragraph because Wis. Stat. § 806.07(2) requires such claims be
    filed within one year of the judgment or order.
    23
    No.      2015AP1970 & 2016AP2528
    ¶32      Our     review         shows     the     circuit         court      examined          the
    relevant       facts       and     applied       the        pertinent        law    to       reach    a
    reasonable determination.                      The circuit court acknowledged the
    allegations Thoma made in his motion materials, but did not find
    the     allegations           presented          extraordinary           or        unique       facts
    warranting relief.               The circuit court recounted that the record
    showed Thoma failed to present any evidence that he was using
    the property for an agricultural use that satisfied Wisconsin's
    tax     law    definition.               The    circuit        court      concluded           Thoma's
    allegations          did    not       present        extraordinary           or    unique       facts
    because Chaneske's deposition testimony revealing Grota's error
    did not alter Thoma's absolute failure to satisfy his burden of
    proof at the Board hearing.                      The circuit court also expressed
    concern       about    the    finality          of    the    order      at   issue       given       the
    substantial         amount       of     time    that    had     passed       since       the    Board
    decided       the     case.           Although        the     circuit        court       improperly
    included the injunction as a basis, the circuit court's main
    reason    for       denying       the    motion       rested       on   Thoma's         failure      to
    present any evidence to support agricultural use.                                    Accordingly,
    the circuit court's decision was proper.
    ¶33      This    court          acknowledges          that    Chaneske's           deposition
    certainly       suggests         Grota     misunderstood           Chaneske        during       their
    phone    conversations            about    the       injunction,         and,      as    a    result,
    Grota gave the Board incorrect information about the effect of
    the injunction.            But the fact remains that the transcript from
    the Board hearing reveals Thoma did not submit any evidence to
    prove agricultural use and the Board's decision was based on
    24
    No.     2015AP1970 & 2016AP2528
    Thoma's failure to meet his burden, not on Grota's incorrect
    testimony.16        We recognize that at first retrospective glance,
    the   Board's      decision    may     appear      unfair       because    the   assessor
    selected a tax classification based on his misconception that an
    injunction        controlled     it.       A    Board    decision      based     on     such
    incorrect information certainly raises a specter of injustice.
    But   the    record    here    dispels         such   concerns.        If   the    record
    established that Thoma had presented evidence to the Board that
    his use was agricultural as defined by the tax law, and the
    Board nevertheless rejected his proof in reliance on Grota's
    erroneous testimony that the injunction trumps use, we would
    agree with Thoma that the circuit court should have granted him
    relief.     But the hearing transcript uncovers no such evidence.
    IV.   CONCLUSION
    ¶34    In    this    consolidated          case,   we     conclude    that       Thoma
    failed to prove he was using his property for agricultural use
    as that term is statutorily defined for tax assessment purposes.
    The Village of Slinger's assessor testified, mistakenly, that an
    injunction        controls       a     property's        classification          for     tax
    assessment purposes, but his misapprehension of the law did not
    supply      the    basis   for       the   Board's       decision     to    uphold       the
    16
    Thoma characterizes Grota's testimony as false.                             It was
    certainly incorrect, but there is nothing in this                                  record
    suggesting that Grota lied to the Board.
    25
    No.     2015AP1970 & 2016AP2528
    assessment.17         Rather, the lack of any evidence to show the
    property    fit       an   agricultural        classification        occasioned     the
    Board's decision, which is supported by a reasonable view of the
    evidence.        We    further   conclude        the   circuit       court   did    not
    erroneously exercise its discretion in denying Thoma's motion to
    vacate the original order affirming the Board's decision.                         Thus,
    we affirm the decision of the court of appeals in 2015AP1970,
    and we affirm the order of the circuit court in 2016AP2528.18
    ¶35    DANIEL KELLY, J. did not participate.
    By    the    Court.—The     decision       of   the     court   of   appeals    is
    affirmed, and the order of the circuit court is affirmed.
    17
    Because our review is of the Board's decision, we need
    not specifically discuss or correct any statements by the
    circuit court or the court of appeals that could be construed to
    mean the injunction controls tax classification.         Neither
    opinion is published or precedential.
    18
    After briefing was complete, the parties filed a series
    of motions in the weeks leading up to oral argument.       In a
    February 20, 2018 order, this court decided one motion and left
    the others to be addressed during oral argument. None of these
    pending motions were discussed during oral argument, and we
    decline to address them further as our disposition does not
    require it. Any outstanding motions are denied.
    26
    No.   2015AP1970 & 2016AP2528.pdr
    ¶36   PATIENCE DRAKE ROGGENSACK, C.J.             (dissenting).        Land
    must be classified as agricultural if its use is agricultural.
    Fee v. Bd. of Review for Town of Florence, 
    2003 WI App 17
    , ¶12,
    
    259 Wis. 2d 868
    , 
    657 N.W.2d 112
    .        For the reasons I address more
    fully below, the Board of Review did not make any findings in
    regard to Mr. Thoma's use of his land.             Instead, the erroneous
    legal instructions of the Board's attorney drove their decision
    to affirm the appraisal of Mr. Thoma's property.                The Board's
    attorney said that due to an injunction in another case between
    the Village of Slinger and Mr. Thoma that concerns the same
    property as does the case now before the court, the Board could
    no longer classify Mr. Thoma's vacant farm land as agricultural
    because it was zoned residential and the injunction enforced
    that zoning.    The majority errs because it ignored the erroneous
    advice given to the Board by its attorney and also because it
    ignored the undisputed factual testimony of Assessor Grota that
    Mr. Thoma's use qualified as agricultural use under taxation
    laws,   but    that   he   was   precluded    from    classifying     it    as
    agricultural due to the circuit court injunction that prohibited
    agricultural use of Mr. Thoma's property.
    ¶37   Because the Board of Review was given erroneous legal
    advice from its attorney, and because the undisputed testimony
    shows that Mr. Thoma's use qualified as an agricultural use,
    Mr. Thoma has rebutted the presumption of correctness that is
    accorded to an assessor's appraisal.         Therefore, I would reverse
    the Board of Review's classification decision and remand it to
    1
    No.   2015AP1970 & 2016AP2528.pdr
    the Board to reconsider its classification decision consistent
    with       Wis.    Stat.    §    70.32(2)(a)     and    Wis.     Adm.    Code    §   Tax
    18.06(2)(d)        (June    2015),     and   further    testimony       from    Assessor
    Grota.       Accordingly, I respectfully dissent from the majority
    opinion.1
    I.    BACKGROUND
    ¶38       Mr. Thoma purchased 62 acres of vacant farm land in
    2004 and 2005.           It was part of the Melius Farm.              He then entered
    into a development agreement with the Village of Slinger to
    create Pleasant Farm Estates.                At the June 23, 2014, Board of
    Review hearing, Mr. Thoma explained that the parcel has been
    classified as agricultural for taxation purposes, even though
    all lots in the proposed development were zoned residential in
    2007 or 2008.2             He said that taxation was "based on the use"
    until       2014     when        the   assessor        changed     to     residential
    classification.3
    ¶39       At the hearing, Mr. Thoma explained the development
    agreement         with     the    Village.       He    said    that     the     proposed
    development had three phases.                The Village required that 50% of
    the lots in Phase I be sold before any lots in Phase II or Phase
    III could be sold.               There are 17 lots in Phase I and only two
    1
    My dissent addresses the majority opinion's decision on
    certiorari review of the Board of Review's decision.    I do not
    address the majority opinion's affirmance of the circuit court's
    order denying Mr. Thoma's motion for reconsideration because my
    decision on certiorari review obviates the need to do so.
    2
    Hearing Tr. 37.
    3
    
    Id. 2 No.
       2015AP1970 & 2016AP2528.pdr
    lots       have    been    sold.4       Therefore,           all    lots    in   the     proposed
    development are not eligible to be purchased.
    ¶40        Mr.   Thoma     was   asked         why    he    believed      that    the   tax
    status had changed.             He said, "We were taxed on agricultural use
    and now we're taxed on a residential use."5
    ¶41        Assessor Grota was asked, "why the change from the
    2013 where it's assessed at ag to the 2014 present?"6                                    Assessor
    Grota responded, "I guess two things.                          One, . . . the Department
    of Revenue's opinion was that use trumps requirements, so if the
    land was being used in an acceptable agricultural manner, even
    if there was a restriction that the property couldn't be used
    for agriculture, I had to extend that.                             In – per Department of
    Revenue opinion, the court order – or with a cease and desist
    statement         within    it,     would   trump           that   use     ability.       As   Pat
    Janeske,          the     Regional      Supervisor            for     the     Department        of
    Revenue, . . . rendered that opinion in conference call."7
    ¶42        A Board member then asked, "So basically the change in
    assessment was due to the Department of Revenue's decision?"8
    The Board's attorney then inserted himself into the hearing and
    answered the question that had been directed to Assessor Grota.
    The    attorney         said,     "What     the       assessor       is     saying      that   the
    4
    
    Id. at 30.
           5
    
    Id. at 34.
           6
    
    Id. at 58.
           7
    
    Id. at 58-59.
           8
    
    Id. at 60.
    3
    No.    2015AP1970 & 2016AP2528.pdr
    Department of Revenue has understood that – if a municipality
    goes       and   gets   a     court   order,       they've     satisfied        –   you   know,
    they've done all they can.                If crop is still there and it's in
    defiance of a court order, the municipality's done all they can
    and – and the assessment will revert to the underlying zoning
    rather than the – the ag[ricultural] use."9
    ¶43       The 2013 appraisal of Mr. Thoma's property had been
    based on Assessor Grota's opinion that its use was agricultural.
    However,         in   2014,    Assessor    Grota        believed     that      he     could    no
    longer classify Thoma's property based on its use because the
    injunction that affected his property prohibited agricultural
    use    of    the      land.      Therefore,        he   appraised        the    property      as
    individual residential lots.
    ¶44       This change significantly affected the tax assessments
    of all of the lots.              To give a few examples, the 2013 appraisal
    of $300 for tax parcel number V5-0815-001 increased to $48,300
    for 2014.10           The 2013 appraisal of $100 for tax parcel number
    V5-0815-057-008 increased to $35,400 for 2014.11                               Of course the
    new        appraisals         dramatically         increased        Mr.        Thoma's        tax
    obligation.
    ¶45       When   Board    members     continued         to   be    concerned       about
    ignoring agricultural use because they understood that changing
    the    classification           caused     taxes        to     increase,        the    Board's
    9
    
    Id. at 60-61.
           10
    June 23, 2014 Hearing Ex. 4.
    11
    June 23, 2014 Hearing Ex. 3.
    4
    No.    2015AP1970 & 2016AP2528.pdr
    attorney doubled down on his erroneous instructions to the Board
    and his explanation of Assessor Grota's appraisal.                                 He said,
    "Because there's a court order here, the state has told the
    assessor that he can assess it as it is zoned and as it is
    available        for    purchase,       not    as     it     is     used."12       To    which
    explanation,        Assessor      Grota       responded,         "Exactly."13       However,
    Mr. Thoma's attorney said "he's continued to maintain the ground
    cover which is an ag[ricultural] use."14
    ¶46    As the Board's attorney was attempting to wind up the
    hearing,     again,      a     Board    member      wanted        to   be   sure   that   she
    understood Assessor Grota's opinion.                       "Are you saying then that
    you   feel       that   that    was    being       used    as     agriculture,     not    just
    ground cover maintenance?"15                  To which Assessor Grota said, "I
    believe that within Chapter Tax 18, which is what we should
    follow as well as the guide put out by the Department of Revenue
    for use – use value, that it had previous – well, it - it had
    previously        met    those        two   burdens . . . to             be    assessed     as
    agricultural."16         As a further explanation, Assessor Grota said,
    "Now the court order changed – changed the precedent then from
    use to use didn't matter because it was being used illegally."17
    12
    Hearing Tr. 68.
    13
    
    Id. 14 Id.
    at 69
    15
    
    Id. at 70.
          16
    
    Id. 17 Id.
    (emphasis added).
    5
    No.   2015AP1970 & 2016AP2528.pdr
    ¶47     The Board of Review voted 2 to 1 to accept Assessor
    Grota's appraisal that classified all 62 acres as residential
    property.18          Mr.      Thoma       appealed          the   Board's         decision    by
    petitioning      the        circuit       court       for   certiorari       review.         The
    circuit court affirmed the Board of Review, as did the court of
    appeals.
    II.     DISCUSSION
    ¶48     This case presents procedurally as a certiorari review
    of    the    Board     of    Review's       decision         pursuant        to    Wis.    Stat.
    § 70.47(13).         As such, we review the record from the Board of
    Review.       Wood v. City of Madison, 
    2003 WI 24
    , ¶12, 
    260 Wis. 2d 71
    ,    
    659 N.W.2d 31
    .      Where       the       factual     basis     for     a   board's
    decision is unclear, the case should be remanded to the board
    for specific findings of fact and conclusions of law.                                     Edmonds
    v. Bd. of Fire & Police Comm'rs, 
    66 Wis. 2d 337
    , 346-48, 
    224 N.W.2d 575
    (1975).
    A.    Standard of Review
    ¶49     Certiorari       review          is      limited        to     four       issues:
    (1) whether       the       tribunal        stayed          within     its    jurisdiction;
    (2) whether the tribunal proceeded under a correct theory of
    law;        (3) whether        the        tribunal's          action        was     arbitrary,
    oppressive, or unreasonable, representing its will and not its
    judgment; and (4) whether the evidence was such that it might
    18
    At the commencement of the hearing, Mr. Thoma's lawyer
    asked that the matter be adjourned, due to a recent death
    causing Mr. Thoma to be in attendance at a funeral that
    afternoon. The Board's lawyer said, "I think this matter has to
    proceed now." The Board then denied the request to reschedule.
    6
    No.   2015AP1970 & 2016AP2528.pdr
    reasonably have made the determination that it made.                   FAS, LLC
    v. Town of Bass Lake, 
    2007 WI 73
    , ¶8, 
    301 Wis. 2d 321
    , 
    733 N.W.2d 287
    .       Whether a tribunal proceeded under a correct theory
    of law is subject to our independent review.                       State ex rel
    Ziervogel v. Washington Cty. Bd. of Adjustment, 
    2004 WI 23
    , ¶14,
    
    269 Wis. 2d
      549,   
    676 N.W.2d 401
    .    It    is   only    this   second
    component of certiorari review that is relevant to the case
    before us.
    B.    Correct Theory of Law
    ¶50    The Board of Review must make its decision based on a
    correct theory of law.          If it does not, a reviewing court shall
    set aside its decision.         State ex rel Kesselman v. Bd. of Review
    for Vill. of Sturtevant, 
    133 Wis. 2d 122
    , 127-28, 
    394 N.W.2d 745
    (1986) (citing State ex rel Park Plaza Shopping Ctr., Inc. v.
    Bd. of Review, 
    61 Wis. 2d 469
    , 475, 
    213 N.W.2d 27
    (1973)).
    Failing to make an appraisal on the statutory basis is an error
    of law correctable on certiorari review.               State ex rel Boostrom
    v. Bd. of Review, 
    42 Wis. 2d 149
    , 156, 
    166 N.W.2d 184
    (1969).
    ¶51    Wisconsin Stat. § 70.32(2)(a) states:
    The assessor shall segregate into the following
    classes on the basis of use . . . 1. Residential.
    2. Commercial.    3. Manufacturing.   4. Agricultural.
    5. Undeveloped. 5m. Agricultural forest. 6. Productive
    forest land. 7. Other.
    (Emphasis added).        Section Tax 18.06(2) also helps focus the
    inquiry for tax assessments.         It provides:
    For each legal description of property that
    includes a parcel of agricultural land, the assessor
    shall indicate on the property record card, by
    acreage,   the    category   of    agricultural   land.
    Categories of agricultural land are the following:
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    No.    2015AP1970 & 2016AP2528.pdr
    (a) First grade tillable cropland.
    (b) Second grade tillable cropland.
    (c) Third grade tillable cropland.
    (d) Pasture.
    (e) Specialty land.
    The Wisconsin Property Assessment Manual (WPAM), a statutorily
    incorporated guide to appraisal of real estate, directs that the
    "[d]etermination       of    agricultural     status    is   based    solely   on
    whether use of the parcel is agricultural in nature."                    WPAM at
    11-10 (2014).
    C.     Erroneous Legal Instructions
    ¶52    Both Assessor Grota and the Board of Review's attorney
    told the Board that use no longer mattered for tax appraisals.
    For example, Assessor Grota told the Board that he "believe[d]
    that within Chapter Tax 18, which is what we should follow as
    well as the guide set out by the Department of Revenue for use –
    use value, that it had previous – well, it - had previously met
    those two burdens . . . to be assessed as agricultural.                  Now the
    court order changed – changed the precedent then from use to use
    didn't     matter      because     it   was     being      used     illegally."19
    Mr. Thoma's attorney had already said that "he's continued to
    maintain the ground cover which is an ag[ricultural] use."20
    ¶53    The     Board     of   Review's    attorney      also    erroneously
    instructed the Board on the law applicable to tax appraisals.
    19
    Hearing Tr. 70 (emphasis added).
    20
    
    Id. at 69
    .
    8
    No.   2015AP1970 & 2016AP2528.pdr
    He said, "Because there's a court order here, the state has told
    the assessor that he can assess it as it is zoned as it is
    available for purchase, not as it is used."21
    ¶54     Property Records for Village of Slinger, Washington
    County, hearing exhibits 4 and 5, showed examples of Mr. Thoma's
    property     classified    as    "1st    grade   tillable"    from   2008    until
    2014, when it was changed to "residential."                 As one of the Board
    members said, she drives by Mr. Thoma's property every day and
    she has seen bailers bailing the hay that grew there and had
    been cut.22
    ¶55     Therefore, at the Board of Review hearing, all were in
    agreement that Mr. Thoma's use of the property was agricultural.
    However,      according    to   the   instructions     on   the   law   from   the
    Board's attorney and according to Assessor Grota's opinion, use
    no   longer    mattered.        Zoning   controlled     classification.        The
    Board made no findings or conclusions in regard to use.                  That is
    because use was not the focus of the Board of Review hearing,
    although one would think that it were, to read the majority
    opinion.23
    ¶56     Furthermore, how Mr. Thoma used the property was not
    an issue for the Board of Review to decide because agricultural
    use had been proved for this exact property in another case in
    which the Village of Slinger and Mr. Thoma were parties.                    It was
    21
    
    Id. at 68.
          22
    
    Id. at 72.
          23
    Majority op., ¶¶2, 6, 8, 13, 21, passim.
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    proof of agricultural use that had resulted in the injunction
    that everyone referred to at the hearing before the Board of
    Review.     The injunction prohibited further agricultural use of
    this same property, and it was that same injunction and its
    effect on Assessor Grota's appraisal that drove the decision of
    the Board of Review.             It did so because both the Board of
    Review's    attorney      and    Assessor   Grota    believed    that   zoning
    trumped use, due to the injunction that the Village had obtained
    to stop Mr. Thoma from using his property for agriculture.
    ¶57     That use was not an issue for the Board of Review is
    clear from this exchange:
    CHAIR GRUDZINSKI: I just have one for Mr. Grota.
    Are you saying then that you feel that that was being
    used   as    agriculture,  not  just   ground   cover
    maintenance?
    VILLAGE ASSESSOR GROTA: I believe that within
    Chapter Tax 18, which is what we should follow as well
    as the guide put out by the Department of Revenue for
    use – use value, that it had previous – well, it – it
    had previously met those two burdens – you know, to be
    assessed as agricultural. Now the court order changed
    – changed the precedent then from use to use didn't
    matter because it was being used illegally in that –
    you know, as part of that court order, so that changed
    what would be normally use trumps.[24]
    ¶58     The   Board     of    Review    conscientiously     followed    the
    instructions of its attorney and of Assessor Grota, who told
    them that use didn't matter because there was an injunction that
    prohibited agricultural use of Mr. Thoma's property and required
    that the property be classified as residential.               The advice they
    24
    Hearing Tr. 70.
    10
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    were given was erroneous and caused the Board to operate on an
    incorrect theory of law.
    ¶59    Use    controls         the    classification         of   real    estate    for
    purposes of taxation.                Wis. Stat. § 70.32(2)(a).                 And, as Fee
    explained,       when     a    property       should       have    been    classified      as
    agricultural based on its use, but was not, the Board of Review
    errs.       Fee,    
    259 Wis. 2d
        868,    ¶1.         Therefore,     the   Board's
    decision must be reversed and the matter remanded to the Board
    for   further      proceedings         based       on    the    legal     principles     that
    actually control classification, i.e., the use of the property.
    § 70.32(2)(a).
    III.    CONCLUSION
    ¶60    The Board of Review was given erroneous legal advice
    on which it based its decision.                         Accordingly, I would reverse
    and remand the matter to the Board of Review to give the Board
    the opportunity to consider Mr. Thoma's appeal under the correct
    theory of law:            use trumps zoning for tax appraisals.                          Wis.
    Stat. § 70.32(2)(a).
    ¶61    I     am     authorized         to     state       that    Justice      ANNETTE
    KINGSLAND ZIEGLER joins this dissent.
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