2020 WI APP 78

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2019AP1618

Complete Title of Case: 

†Petition for Review Filed

STATE OF WISCONSIN EX REL. NUDO HOLDINGS, LLC,

 PETITIONER-APPELLANT,†

 V.

BOARD OF REVIEW FOR THE CITY OF KENOSHA,

 RESPONDENT-RESPONDENT.

Opinion Filed: November 25, 2020

Submitted on Briefs: June 26, 2020

JUDGES: Neubauer, C.J., Reilly, P.J., and Davis, J.

Concurred:

Dissented: Reilly, P.J.

Appellant

ATTORNEYS: On behalf of the petitioner-appellant, the cause was submitted on the 

briefs of Anthony Nudo of Guttormsen, Terry & Nudo, LLC, of 

Kenosha.

Respondent

ATTORNEYS: On behalf of the respondent-respondent, the cause was submitted on 

the brief of Robert I. DuMez of Alia, Dumez & McTernan, S.C., of

Kenosha. 
2020 WI App 78

COURT OF APPEALS

DECISION

DATED AND FILED

November 25, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2019AP1618 Cir. Ct. No. 2018CV896

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN EX REL. NUDO HOLDINGS, LLC,

 PETITIONER-APPELLANT,

 V.

BOARD OF REVIEW FOR THE CITY OF KENOSHA,

 RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Kenosha County: 

ANTHONY G. MILISAUSKAS, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Davis, J. 

¶1 DAVIS, J. The question before us in this tax assessment case is 

whether vacant land slated for residential development, on which the landowner 

made minimal efforts to farm naturally growing crops, was correctly classified as 

residential, rather than agricultural. Nudo Holdings, LLC (Nudo) appeals from a 
No. 2019AP1618

2

trial court order affirming the decision of the Board of Review for the City of 

Kenosha (the Board). The Board decision, in turn, upheld the city assessor’s 

classification of Nudo’s property as residential. We conclude that the Board 

correctly applied Wisconsin law on property classification for tax assessment 

purposes. We further conclude that there was sufficient evidence supporting the 

Board’s determination that the land was properly classified as residential. 

Accordingly, we affirm.

BACKGROUND

¶2 In September 2017, Nudo paid $100,000 for an 8.9 acre parcel of land 

in the City of Kenosha. The parcel was tax-exempt at the time of purchase but was 

later assessed at $10,000 per acre, having been classified as residential for 2018 tax 

purposes. Nudo objected to the assessment, arguing that the parcel should have 

been classified as agricultural because that was its primary use. See WIS. STAT. § 

70.32(2)(c)1g (2017-18)1(the assessor shall classify as agricultural land “that is 

devoted primarily to agricultural use”). 

¶3 The Board held a hearing on the matter and sustained the assessment, 

finding that the parcel was properly classified as residential and not agricultural. 

Nudo brought this action, challenging the Board’s determination by way of 

certiorari review. The trial court reversed, concluding that the Board had incorrectly 

required the parcel to have a “business purpose” in order to qualify as agricultural 

land, contrary to the supreme court’s recent decision in State ex rel. Peter Ogden 

Family Trust of 2008 v. Board of Review, 2019 WI 23, ¶32, 385 Wis. 2d 676, 923 

N.W.2d 837 (land does not need to be farmed for a “business purpose” in order to 

 

1

 All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2019AP1618

3

be classified as “agricultural land” for property tax purposes). The court remanded 

to the Board to reconsider Nudo’s appeal in light of Ogden. On remand, the Board 

took into account testimony and other evidence from both Board proceedings, which 

are as follows. 

¶4 Anthony Nudo testified as owner of Petitioner-Appellant Nudo (to 

avoid confusion, we refer to the witness as “Mr. Nudo”). Mr. Nudo purchased the 

property “[t]o eventually develop it” into subdivided residential lots. At the time of 

assessment, however, the parcel remained in an “unimproved” state, with “no 

habitable structures ... sewer or water [on] the property.” Mr. Nudo testified that 

residential construction would be “impossible” without “substantial public 

improvements.” 

¶5 Mr. Nudo explained that even though the long-term goal was 

residential development, the property’s current use was agricultural. According to 

Mr. Nudo, “Nudo Farms” (as he labeled it) contained “a significant walnut grove.” 

He did not plant the walnut trees—they were there when he purchased the property. 

To protect the trees, however, Mr. Nudo did purchase and plant a “windbreak 

packet” of small trees. In addition to the walnut trees, “Christmas trees [were] 

growing scattered at the site.” Mr. Nudo testified that he had cut and maintained 

trails to connect and provide access to the Christmas trees and walnut grove. Aside 

from these actions, Mr. Nudo did not point to any agricultural practices taking place 

on the property. For example, he stated that the trees were not planted in rows and 

that there was “not much” tilling; he did not describe any fertilization, pruning, soil 

management, pest control, or other actions to enhance growth or yield. Mr. Nudo 

further admitted that he had not harvested any Christmas tree timber and had not 

commercially harvested any walnuts. He and his wife did harvest some walnuts on 
No. 2019AP1618

4

their own; however, Mr. Nudo provided few details on this point.2 He gave the 

harvested walnuts to his mother, who passed them out as gifts to her hairdressing 

clients. 

¶6 Mr. Nudo testified that Nudo Farms was registered by the State of 

Wisconsin as “livestock premises” and was licensed by the City of Kenosha for the 

keeping of up to twenty-five chickens. Mr. Nudo, however, only “stored” chickens 

on the property once, temporarily, while his cousin was cleaning out their coop—

and in any case, this was sometime after 2017, the relevant tax assessment period.

He also obtained permits from Kenosha County to harvest Christmas trees and other 

timber on the property. According to Mr. Nudo, these facts, taken together, showed 

that the parcel should be classified as agricultural, not residential, land.

¶7 Peter Krystowiak, the city assessor, also testified. Krystowiak 

acknowledged that Nudo’s property was located in an A-2 Agricultural Land 

Holding District, but he explained that “the key determination” for classification is 

“[a]ctual use of the property ... not location, zoning or other factors.” In any case, 

the A-2 designation “is really more of a holding zoning” for “parcels that have come 

in from [neighboring towns and villages] ... until a plan is in place for that parcel.” 

Nudo’s property, in fact, was located within the “St. Peters Neighborhood Plan,” 

meaning that the city had slated the location for single-family residential 

development, in line with Nudo’s goals. As Krystowiak noted:

Mr. Nudo is looking to pursue having up to 18 lots on this 

parcel, 18 residential lots. That is allowable. As long as he 

 

2

 During the Board’s first deliberation, one member noted that the walnut harvesting took 

place on a single day, December 3, 2017, but there is no testimony or evidence to that effect in the 

record. It appears that Nudo provided a packet of materials to the Board that is not included in the 

record, and which possibly contains this and other information on the walnut harvest. It is 

undisputed, however, that much of the information that the assessor considered pertinent, such as 

the yield of walnuts, is unknown. See infra, ¶9.
No. 2019AP1618

5

follows all the ordinances, as long as he does everything that 

needs to be done here, according to the neighborhood plan, 

the city would really have no way to stop him. This 

neighborhood plan is as good as zoning.

Therefore, Krystowiak classified the property as “residential,” based on its likely 

future use. 

¶8 Krystowiak next explained why, in his opinion, the land was not 

“devoted primarily to agricultural use.” He pointed out that land classified as 

agricultural “shall typically bear physical evidence of agricultural use, such as 

furrows, crops, fencing or livestock.” See WIS. ADMIN. CODE § TAX 18.06(1) (July 

2018). Krystowiak testified that he did not see any such “physical evidence,” or any 

other indication that the land was being farmed. What he did see on the property 

were “a few paths” cutting through “extremely heavy underbrush on a majority of 

this parcel”: 

From the sidewalk, this parcel, if you get more than ten to 15

feet off the sidewalk, this is a parcel that brushes up above 

your knees. So I mean, you could get—literally, I think you 

could get lost in this nine acres in the city. It’s—it’s heavy—

really heavy. 

There was also no evidence of a harvest and “no evidence of livestock being allowed 

or able to roam free.” In short, Krystowiak characterized the parcel as a “raw piece 

of land,” stating, “I don’t see any effort, any action, any plan in terms of agricultural. 

This is a piece of land that has some things growing on it.” (Emphasis added.) 

¶9 Krystowiak further testified that despite his request under the 

administrative code, Nudo did not provide any additional information, such as the 

yield of walnuts harvested, that might indicate agricultural use. See WIS. ADMIN.

CODE § TAX 18.06(1) (“If physical evidence of agricultural use is not sufficient to 

determine agricultural use, the assessor may request ... such information as 
No. 2019AP1618

6

necessary to determine if the land is devoted primarily to agricultural use.”). 

Specifically, Krystowiak received no information regarding his request for: (1) “a 

profit and loss statement and/or tax records ... which documents agricultural 

activities, the harvesting of trees and nuts at the parcel”; (2) “[a]ny documentation 

that substantiates the harvesting of black walnuts and Christmas trees in [20]17”; 

(3) [a]ny evidence of keeping livestock on the parcel”; (4) “[a]ny evidence of 

furrows, crops or fencing”; and (5) “[a]ny evidence of agronomic practices defined 

in the Property Assessment Manual.” Krystowiak stated that he did not request this 

information to verify a commercial or business purpose to Nudo’s farming, but 

rather, because he wanted to “establish whether there was cultivation, whether there 

was a harvest, whether there was a yield.” After remand to the Board, Krystowiak 

again clarified, “The lack of a business purpose was not the reason why this parcel 

was denied ag[ricultural] use.... This parcel was denied ag[ricultural] use because 

it did not fit the statutory definitions of what ag[ricultural] land [and] ag[ricultural] 

use ... are.”

¶10 After considering all of the evidence, the Board sustained the 

assessment. Addressing the trial court’s prior concern about the effect of Ogden,

the Board explicitly stated that its decision was not based on any “business purpose” 

requirement but on the fact that the land’s use was residential, not agricultural. This 

time on certiorari review, the trial court affirmed the Board’s decision, concluding 

that the Board “had sufficient basis to affirm the assessor’s valuation based on the 

evidence presented.” Nudo appeals from that order.

DISCUSSION

Standard of Review and Relevant Law Applicable to Real Property Assessment
No. 2019AP1618

7

¶11 A brief background of relevant assessment principles will be helpful 

before we consider Nudo’s appeal and the standards governing it. The tax assessor 

shall annually assess all property according to WIS. STAT. ch. 70 “in the manner 

specified in the Wisconsin property assessment manual” (WPAM). WIS. STAT. §§ 

70.32(1), 70.10. We therefore adhere to the WPAM “absent conflicting law,” 

relying on the guidance therein to supplement the statutes and case law.3 Marathon 

Petroleum Co. v. City of Milwaukee, 2018 WI App 22, ¶19, 381 Wis. 2d 180, 912 

N.W.2d 117.

¶12 The tax due on a parcel of real property is based on the property’s 

“assessment” or “assessed value”; that is, the “dollar amount assigned to the taxable 

property ... by the assessor for the purpose of taxation.” WIS. DEP’T OF REVENUE,

WISCONSIN PROPERTY ASSESSMENT MANUAL G-1 (Dec. 2017) (hereinafter, 

WPAM). The assessor classifies property “on the basis of use” into one of eight 

categories, including the two classifications at issue here: “agricultural” and 

“residential.” See WIS. STAT. § 70.32(2)(a)1., 4. For most of these classes, 

including residential, assessed value is simply “the full value which could ordinarily 

be obtained therefor at private sale”—that is, fair market value. Sec. 70.32(1); State 

ex rel. Levine v. Board of Rev., 191 Wis. 2d 363, 372, 528 N.W.2d 424 (1995). Our 

legislature has determined, however, that this standard does not apply to agricultural 

land. In order “to protect Wisconsin’s farm economy and curb urban sprawl,” 

agricultural land is taxed according to its “use-value,” or “the value of a property 

for a specific use.” WPAM 14-1; see also Thoma v. Village of Slinger, 2018 WI 

45, ¶12 n.7, 381 Wis. 2d 311, 912 N.W.2d 56 (“the use-value assessment legislation 

 

3

 The Wisconsin Department of Revenue (DOR) annually updates the WPAM. Our 

decision cites to the 2018 version in effect at the time of Nudo’s assessment, but for our purposes 

that version is identical to the most current (2020) version.
No. 2019AP1618

8

[was] enacted to protect Wisconsin’s farmland”). Accordingly, the value of 

agricultural land is based on “the income that could be generated from [the land’s] 

rental for agricultural use.” Sec. 70.32(2r). As might be expected (and seemingly 

as intended), use-value assessment typically results in a significantly lower 

comparative tax burden for agricultural property, thus providing a considerable 

incentive for landowners to seek this classification. See, e.g., Ogden, 385 Wis. 2d 

676, ¶9. 

¶13 Nudo’s appeal concerns the residential and agricultural land 

classifications, and it is important to note a conceptual difference in how these two 

are defined. Our statutes do not limit the term “residential” to land meeting a 

particular set of criteria; instead, “‘[r]esidential’ [land] includes any parcel or part 

of a parcel of untilled land that is not suitable for the production of row crops, on 

which a dwelling or other form of human abode is located and which is not 

otherwise classified under this subsection.” WIS. STAT. § 70.32(2)(c)3. (emphasis 

added). Because this definition is nonexclusive and does not easily apply to vacant 

lands, the WPAM contains guidelines to help the appraiser determine when vacant 

parcels are residential, based on intended future use. See WPAM 12-1; see also 

West Capitol, Inc. v. Village of Sister Bay, 2014 WI App 52, ¶¶33-35, 354 Wis. 2d 

130, 848 N.W.2d 875. These guidelines will be examined in greater detail below.

¶14 In contrast, the agricultural classification scheme is specifically 

focused on current use. This is made clear through a series of definitions within the 

statute and administrative code. Again, agricultural land is defined generally in 

the assessment statute; in pertinent part, it simply means land “devoted primarily to 

agricultural use.” WIS. STAT. § 70.32(2)(c)1g. Land devoted primarily to 

agricultural use is further defined by department of revenue (DOR) rule to mean 

“land in an agricultural use for the production season of the prior year, and not in 
No. 2019AP1618

9

a use that is incompatible with agricultural use on January 1 of the assessment year.” 

WIS. ADMIN. CODE § TAX 18.05(4) (emphasis added). Per statute, and as relevant 

here, agricultural use is “defined by the department of revenue by rule.”4 Sec.

70.32(2)(c)1i. The DOR definition of agricultural use, in turn, encompasses the 

three activities Nudo claims as the basis for its agricultural classification: growing 

Christmas trees, farming walnuts, and keeping chickens.5 See WIS. ADMIN. CODE 

§ TAX 18.05(1). 

¶15 Property assessment takes place “as of the close of January 1 of each 

year.” WIS. STAT. § 70.10. “Because the use of agricultural parcels can change 

frequently, the assessor must review the classification of these parcels” at each 

assessment cycle. WPAM 4-6. As noted previously, DOR rule outlines this process 

and, importantly, the criteria that determine whether such classification is 

appropriate:

An assessor shall classify as agricultural land devoted 

primarily to agricultural use. Land devoted primarily to 

agricultural use shall typically bear physical evidence of 

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

appropriate to the production season. If physical evidence 

of agricultural use is not sufficient to determine agricultural 

use, the assessor may request of the owner ... such 

 

4

 WISCONSIN STAT. § 70.32(2)(c)1i. further defines “agricultural use” to “include[] the 

growing of short rotation woody crops, including poplars and willows, using agronomic practices.” 

For purposes of this appeal, we assume that the crops at issue (Christmas and walnut trees) are not 

“short rotation woody crops.” Therefore, our analysis is not dependent on the “agronomic 

practices” requirement that is a statutory prerequisite to agricultural classification for “short 

rotation woody crops.” 

5

 As relevant to this appeal, the DOR defines “agricultural use” to include “[g]rowing 

Christmas trees” and “[a]ctivities included in subsector 111 Crop Production [and subsector 112 

Animal Production], set forth in the North American Industry Classification System (NAICS).” 

See WIS. ADMIN. CODE § TAX 18.05(1)(a)-(c). The WPAM states that walnut farming and 

poultry/egg production fall within subsectors 111 and 112, respectively, of NAICS. WPAM 14-A20, 14-A-26 through 28.
No. 2019AP1618

10

information as is necessary to determine if the land is 

devoted primarily to agricultural use.

WIS. ADMIN. CODE § TAX 18.06(1). 

¶16 We will discuss below additional principles relating to agricultural 

classification. But to summarize the above authority, a parcel is generally best 

classified as agricultural where it was used primarily for DOR-specified agricultural 

activities in the previous year and could support such use in the coming year. 

Typically, there will be physical evidence of agricultural use; if not, then the 

taxpayer normally will need to provide additional information “as is necessary” to 

demonstrate that the land is primarily devoted to agricultural use. 

¶17 A taxpayer may object to an assessment by appealing to the 

appropriate board of review, which shall hold a hearing on the matter. WIS. STAT.

§ 70.47(7), (8). The board shall presume that the assessment (and, by extension, the 

underlying classification) is correct. Sec. 70.47(8)(i); Sausen v. Town of Black 

Creek Bd. of Rev., 2014 WI 9, ¶10, 352 Wis. 2d 576, 843 N.W.2d 39. The taxpayer 

may rebut this presumption of correctness only with “a sufficient showing” that the 

assessment is incorrect. Sec. 70.47(8)(i). 

¶18 If the board sustains the assessment, the taxpayer may appeal to the 

trial court. Where, as here, the taxpayer seeks certiorari review pursuant to WIS.

STAT. § 70.47(13), then the trial court is limited to a deferential review of the record, 

as to whether the board: (1) kept within its jurisdiction; (2) acted according to the 

law; (3) acted arbitrarily, oppressively, or in bad faith; and (4) might reasonably 

have made the determination in question, given the evidence before it. See Nankin 

v. Village of Shorewood, 2001 WI 92, ¶¶19-20, 245 Wis. 2d 86, 630 N.W.2d 141; 

Levine, 191 Wis. 2d at 370. Our review mirrors the trial court’s, in that we 
No. 2019AP1618

11

independently apply the certiorari standard to the record before the board. See 

AllEnergy Corp. v. Trempealeau Cnty. Env’t & Land Use Comm., 2017 WI 52, 

¶9, 375 Wis. 2d 329, 895 N.W.2d 368. 

Application to Nudo’s Appeal

¶19 Nudo’s various challenges to the Board proceedings fit into two 

certiorari categories: that the Board did not correctly apply the law and that the 

evidence did not support the Board’s decision. We consider each in turn.

The Board’s Decision was According to the Law

¶20 As to Nudo’s arguments concerning application of the law, it contends 

that: (1) the Board “relied on the lack of at least some business purpose” as the 

basis for denying agricultural classification, contrary to Ogden, 385 Wis. 2d 676, 

¶¶32-33; (2) the parcel does not “fall within the ordinary meaning of the term 

‘residential’” as a matter of law, see West Capitol, Inc., 354 Wis. 2d 130, ¶34; (3) 

“[t]he Board wrongfully relied on the future use of Nudo Farms, not the use as of 

January 1, 2018, to sustain” the residential classification; and (4) the Board did not 

give sufficient weight to the fact that the parcel is zoned “A-2 Agricultural.” 

¶21 Nudo’s “business purpose” challenge arises out of Ogden, in which 

our supreme court held that a business purpose is not required for agricultural 

classification purposes. See Ogden, 385 Wis. 2d 676, ¶¶32-33. Following remand 

from the trial court to rehear this matter in light of Ogden, the Board explicitly 

concluded that “the requirement of a ‘business purpose’ was not considered ... in 

affirming the valuation by the assessor.” Taken as a whole, the record supports this 

assertion, and we find no obvious basis for Nudo’s position that the Board in fact 

required a “business purpose.” Nudo takes issue with one Board member’s 
No. 2019AP1618

12

statement that Krystowiak “request[ed] business records ... [but] did not base [the 

assessment] exclusively on business records or lack thereof.” It is unclear why 

Nudo finds this statement objectionable. In any case, under WIS. ADMIN. CODE 

§ TAX 18.06(1), it was proper for Krystowiak to request “such information as is 

necessary to determine if the land is devoted primarily to agricultural use.” 

Certainly “business records” could have shed further light on the nature and extent 

of practices supporting agricultural use, irrespective of the relevance such records 

also might have had to a “business purpose.” It also seems clear that the members 

who voted to sustain the assessment focused on the lack of agricultural use on the 

parcel, rather than on the absence of any business purpose.6 

¶22 Nudo’s next legal argument draws on a passage from West Capitol, 

Inc., 354 Wis. 2d 130, ¶34, in which we stated that any property not explicitly 

described as “residential” under WIS. STAT. § 70.32(2)(c)3. can be included in that 

class only if it “fall[s] within the ordinary meaning of the term ‘residential.’”7 Nudo 

posits that the ordinary (dictionary) definition of “residential” does not encompass 

 

6

 For example, one member summarized the evidence presented and concluded, “[N]o 

evidence has been presented that would convince me that the primary purpose of the entire 8.9 

acres, or even a predominant portion thereof, is to cultivate walnuts.... My opinion is that the Nudo 

property is a piece of land that happens to have some things growing on it.” Another member 

concluded, “In going by the property and seeing what is the land used for ... I don’t see any farming, 

I don’t see agriculture ... I believe the fact that there are walnut trees on [the property] is just the 

fact that a hundred years ago or however long ago when those walnut trees were planted ... and I 

feel that [the fact that] they happen to be on that property does not make it agricultural.” 

7

 Recall that “residential” is not precisely defined in the statute but is rather described by 

what it “includes.” See WIS. STAT. § 70.32(2)(c)3. (residential property “includes ... untilled land 

that is not suitable for the production of row crops, on which a dwelling or other form of human 

abode is located”). In essence, Nudo argues that if land does not fall within the statutory description 

of what is expressly included as “residential,” then the only other source we can refer to in 

classifying such property is an ordinary dictionary. 
No. 2019AP1618

13

uninhabitable property such as this; therefore, the Board acted contrary to the law 

in sustaining that classification. The problem with this argument is that appraisers 

and boards cannot rely on ordinary dictionary definitions in the face of binding 

authority providing specific guidance on this point—namely, the statutes, rules, and 

(where not conflicting with such) WPAM. And the WPAM, in fact, provides a 

number of guidelines for determining whether vacant land not ordinarily thought of 

as “residential” should nonetheless be so classified for property tax purposes. 8 See 

WPAM 12-1. Based on his testimony, it appears that Krystowiak relied on these 

guidelines, which together seek to determine whether residential use is “reasonably 

likely or imminent.” Id. We will further discuss the WPAM guidelines in the next 

section, when we review the sufficiency of the evidence. For our purpose here, it is 

enough to say that Krystowiak and the Board relied upon the proper sources for 

classifying Nudo’s property.

¶23 Somewhat in keeping with the “ordinary meaning” argument, Nudo 

next claims that the Board acted contrary to law by considering the property’s future 

use (residential development) as relevant to its present classification as of January 

1, 2018. As we have previously explained, under the WPAM, the intended future 

use of the property certainly is a pertinent consideration, and in fact may be 

dispositive in the absence of sufficient evidence to support a different classification. 

The WPAM states that the residential class “includes vacant land in cities and 

 

8

 The quote from West Capitol, Inc. that Nudo relies on is taken out of context. See West 

Capitol, Inc. v. Village of Sister Bay, 2014 WI App 52, ¶34, 354 Wis. 2d 130, 848 N.W.2d 875 

(“Aside from the property specifically described in [WIS. STAT.] § 70.32(2)(c)3., any other property 

included in the residential class must fall within the ordinary meaning of the term ‘residential.’”). 

Nowhere in West Capitol, Inc. did we hold that the dictionary definition of “residential” controls 

the classification of land as such, particularly with respect to considerations of future use. The 

point of the quoted sentence was merely that land demonstrably not residential, such as a cemetery 

or parking lot, is not within the “ordinary meaning” of residential. Id. We then made clear that, 

consistent with the WPAM, “a vacant property may be classified as residential if it is most likely to 

be used for residential development.” Id., ¶35 (emphasis added). 
No. 2019AP1618

14

villages where the most likely use would be for residential development.” WPAM 

7-14. Furthermore, the WPAM guidelines for residential classification concern 

future use: whether “the actions of the owner(s) [are] consistent with an intent for

residential use,” whether “residential zoning [is] likely to be allowed,” whether “the 

parcel’s topography or physical features allow for residential use” and “any other 

factors ... which would indicate residential use is reasonably likely or imminent.” 

WPAM 12-1 (emphases added). See also Thoma, 381 Wis. 2d 311, ¶¶3-6, 18-25;

West Capitol, Inc., 354 Wis. 2d 130, ¶¶35-45 (applying the above principles to 

conclude that the most likely use of the property at issue was residential 

development). The assessor and the Board considered future use under these 

parameters, noting, for example, the property’s location within the “St. Peter’s 

Neighborhood Plan.” The argument that such consideration was improper is 

without merit.

¶24 Finally, Nudo argues that the Board did not sufficiently account for 

the parcel’s “A-2 Agricultural” zoning status. Nudo concedes, however, that zoning 

is not determinative of agricultural classification. Indeed, as should be evident from 

our discussion so far: 

[C]lassification of real property for tax assessments is based 

on how the property is being used. Zoning, injunctions, 

ordinances, and contracts do not trump actual use for tax 

assessment purposes. 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 ....

Thoma, 381 Wis. 2d 311, ¶17 (emphasis added; citations omitted); see also WIS.

STAT. § 70.32(2)(a) (the assessor shall classify the property “on the basis of use”). 

Accordingly, whether and how the A-2 designation impacts the property’s 
No. 2019AP1618

15

classification is encompassed by our review of the sufficiency of the evidence, to 

which we now turn.

The Board’s Decision Was Supported by Sufficient Evidence

¶25 Nudo’s second certiorari challenge is based on sufficiency of the 

evidence. Nudo bears a heavy burden on this point. On certiorari review, courts 

determine the sufficiency of the evidence by applying the “substantial evidence” 

test. AllEnergy Corp., 375 Wis. 2d 329, ¶74. “Substantial evidence is evidence 

that is relevant, credible, probative, and of a quantum upon which a reasonable fact 

finder could base a conclusion.” Cornwell Personnel Assoc., Ltd. v. LIRC, 175 

Wis. 2d 537, 544, 499 N.W.2d 705 (Ct. App. 1993). Consistent with the deference 

we owe to the superior fact-finding capabilities of the assessor and the board, such 

“quantum” is “less than a preponderance of the evidence” but “more than ‘a mere 

scintilla’ of evidence and more than ‘conjecture and speculation.’” See AllEnergy 

Corp., 375 Wis. 2d 329, ¶76 (citations omitted). Where there is substantial 

evidence, the board’s decision must be affirmed, even where the evidence would 

also support a contrary determination. See Von Arx v. Schwarz, 185 Wis. 2d 645, 

656, 517 N.W.2d 540 (Ct. App. 1994); AllEnergy Corp., 375 Wis. 2d 329, ¶75. Put 

another way, the board’s decision may be set aside only “if a reasonable man, acting 

reasonably, could not have reached the decision from the evidence and its 

inferences.” See Omernick v. DNR, 100 Wis. 2d 234, 250-51, 301 N.W.2d 437 

(1981) (citation omitted). 

¶26 We conclude that substantial evidence supported the Board’s 

decision. As discussed above, where it is unclear whether a vacant parcel should be 

classified as residential, the assessor must consider whether “the most likely use 

would be for residential development,” according to the following guidelines:
No. 2019AP1618

16

 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, 

[certified survey map] 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[?]

WPAM 7-14, 12-1.

¶27 The answers to these queries provide ample support for a residential 

classification in this case. Nudo purchased the parcel with the intent “to eventually 

develop it” into subdivided single-family residential lots. It did not take any actions 

inconsistent with that goal. The parcel’s size, location, and physical features allow 

for residential use. The property is located within the City of Kenosha, in the A-2 

Agricultural “holding zone” that preserves land for urban development. In addition, 

the property is part of the “St. Peters Neighborhood Plan,” meaning that the City 

expects and encourages residential development in this location. In short, there was 

sufficient evidence to sustain this classification, based on the property’s likely future 

use.

¶28 Notwithstanding the above, Nudo could have overcome the 

presumptive residential classification through “a sufficient showing” that the 
No. 2019AP1618

17

property’s current primary use was in fact agricultural. See WIS. STAT.

§§ 70.47(8)(i); 70.32(2)(a)4., (c)1g. No such showing was made here. We begin 

by noting that a single parcel of land may contain several classifications, based on 

differences in use. See, e.g., WPAM 14-22 through 24. Mr. Nudo did not argue to 

the Board that the portion of his parcel containing the walnut trees should be 

separately classified as agricultural, although he apparently discussed this 

possibility with Krystowiak. The Board independently asked Krystowiak about the 

prospect of some type of “compromise,” but Krystowiak responded that it would be 

“problematic” to classify even the walnut grove as agricultural. Nonetheless, for 

the sake of completeness, and because our analysis differs depending on the portion 

of property considered, we will separately address whether agricultural 

classification should attach to: (1) the larger portion of the parcel, containing few 

or no walnut trees; (2) the smaller portion of the parcel containing the walnut grove; 

and (3) the entire parcel considered as a whole.

¶29 One principle is key to all three considerations: the agricultural 

classification does not attach merely because plants falling within the DOR 

definition of “agricultural use” happen to be growing on the property.9 See WIS.

ADMIN. CODE § TAX 18.05(1). Agricultural activity is necessary. Although Nudo 

appears to take issue with this principle, it clearly follows from the plain language 

of our statutes and rules. See WIS. STAT. § 70.32(2)(a) (classifying properties 

according to use); sec. 70.32(2)(c)1g.-1k. (requiring agricultural use and, where 

required, agronomic practices); WIS. ADMIN. CODE § TAX 18.05(1)(a)-(c) (defining 

“agricultural use” as either specified “[a]ctivities” or “[g]rowing Christmas trees or 

ginseng” (emphasis added)). We note too that previous decisions appear to have 

 

9

 Although not at issue here, this same principle applies to activities within the animal 

production subsector. See WIS. ADMIN. CODE § TAX 18.05(1)(b).
No. 2019AP1618

18

taken this requirement as a given. See, e.g., Thoma, 381 Wis. 2d 311, ¶¶20-23 

(focusing on whether the taxpayer was actively farming the property or merely 

growing ground cover); Ogden, 385 Wis. 2d 676, ¶31 (emphasizing that the relevant 

inquiry is whether the taxpayer was growing [as opposed to “marketing, selling, or 

profiting from”] crops). And in addition to being mandated under the law, this result 

is sensible, just, and consistent with public policy. Although there are sound reasons 

for according agricultural land preferential treatment, this necessarily increases the 

burden on other taxpayers. Properties should not qualify for agricultural 

classification through happenstance.

¶30 We begin, then, with the portion of the property that most clearly 

cannot be considered agricultural under any reasonable view of the evidence. This 

is the portion containing few or no walnut trees and consisting of “extremely heavy 

underbrush” that “you could get lost in.” The area was “scattered” with an unknown 

number of Christmas trees, which Nudo did not plant, harvest, or cultivate in any 

fashion. There were no chickens or other livestock raised on this portion in 2017, 

the relevant time period (and according to Krystowiak, there was “no evidence of 

livestock being allowed or able to roam free” anytime thereafter). See WIS. ADMIN.

CODE § TAX 18.05(4). In sum, Nudo offered no meaningful evidence rebutting the 

presumption that this portion of land was not “devoted primarily to agricultural use.” 

See WIS. STAT. § 70.32(2)(c)1g. 

¶31 That leaves the smaller portion of the property, containing the walnut 

trees. The only actions Nudo took with respect to these trees were cutting a trail to

their location, planting the protective “windbreak packet,” and engaging in vague 

efforts to gather some undisclosed quantity of walnuts. As a result, there was little 

or no evidence that Nudo met the initial DOR criteria by which an assessor “shall 

classify land as agricultural.” See WIS. ADMIN. CODE § TAX 18.06(1). That is, this 
No. 2019AP1618

19

portion did not “bear physical evidence of agricultural use” (“such as furrows, crops, 

[or] fencing”), as is “typical[]” of agricultural land. See id. 

¶32 As previously explained, where such physical evidence is insufficient 

to determine agricultural use, the assessor may request “such information as is 

necessary to determine if the land is devoted primarily to agricultural use.” Id. 

Krystowiak did so here and was told by Mr. Nudo, “[Y]ou already have all my 

information”—meaning Krystowiak “did not get anything new” and “was basically 

left as to where [he] was before.” It was Nudo’s, not Krystowiak’s, burden to 

establish agricultural use; for example, by submitting documentation to establish the 

yield of walnuts or by providing evidence of agricultural practices. Nudo’s failure 

to do so meant that Krystowiak (and by extension, the Board and this court) was left 

with almost no information to substantiate Nudo’s claim. For example, not only do 

we not know the yield of walnuts, or the time or effort spent harvesting them, but 

the assessor was told virtually nothing of any efforts—such as fencing, pruning, 

treating, pest control, or soil management—that would suggest that the primary 

purpose of this property was the cultivation of walnut trees. 

¶33 On the basis of the evidence that was made available, and given the 

highly deferential standard to which we are bound, we cannot say that the Board 

erred in sustaining the assessment. That is, Nudo did not overcome the presumption 

of correctness that attached to the residential classification. See WIS. STAT. § 

70.47(8)(i). We further note that the record does not support Nudo’s assertion on 

appeal that the Board rigidly required evidence of “harvesting” or any other 

particular practice, while ignoring valid evidence indicating agricultural use. 

Rather, the Board rightly looked at all the available evidence to conclude that total 

agricultural activity was minimal—and thus, the “primary use” of the property was 

not agricultural. 
No. 2019AP1618

20

¶34 This evidentiary shortcoming underscores an important policy 

consideration: landowners should not be permitted to take advantage of the favored 

treatment our legislature has accorded farmland properties by resort to nominal 

agricultural practices. Agricultural status is not achieved through use of dubious 

labels (“Nudo Farms”) or by engaging in sporadic and desultory farming efforts 

(e.g., spending a day or two gathering some unspecified amount of edible product 

from naturally growing vegetation).10 Indeed, the WPAM directs the assessor to 

“be aware of questionable [agricultural] classification claims,” including “gardens 

... cultivated in urban areas” and “gardens ... cultivated in rural areas for personal 

consumption.” WPAM 14-17. 

 When these and other questionable classification claims 

arise the assessor should develop a comparative analysis of 

the standard agricultural production practices with the land 

in question.... Generally, a single violation of an industry 

standard should not automatically preclude land from 

agricultural classification. However, an assessor should 

analyze a trend of several instances that are inconsistent with 

the industry standards and employ the information to 

develop and defend a land classification determination.

WPAM 14-18. 

 

10

 Here the evidence supporting agricultural classification was particularly sparse, possibly 

because there was no such evidence, but possibly also because of Nudo’s own actions during the 

assessment period and on Board review. As discussed, Nudo provided Krystowiak with little 

information corroborating agricultural use, and Mr. Nudo’s testimony on key points was often 

vague. In addition, it appears that Nudo did not permit Krystowiak access to its property (this fact 

was not in the record, but Nudo asserts so in its appellate briefing). This was, of course, Nudo’s 

right, but assessments are made according to the assessor’s “actual view or from the best 

information that the assessor can practicably obtain,” WIS. STAT. § 70.32(1), and agricultural 

assessments, in particular, typically rely on “physical evidence of agricultural use,” WIS. ADMIN.

CODE § TAX 18.06(1). We remind property owners that they bear the burden of challenging their 

tax classification and should generally take every afforded opportunity to develop an evidentiary 

record in support of their desired classification.
No. 2019AP1618

21

¶35 Coincidentally, the WPAM uses the example of walnut production. 

Therefore, if we needed any affirmation of our decision here, it is that there is little 

evidence that Nudo adhered to basic “walnut industry standards.” Id. The WPAM 

asks, for example, “What is the spacing between the trees?”; “Were the trees 

thinned?”; and “Have measures been taken to ensure proper tree growth, which can 

include tree pruning, weed control, animal control, etc.?” Id. Here, the trees were 

not spaced, thinned, or cultivated through the above measures.11 The WPAM also 

asks, “Are the site characteristics conducive to walnut production?” Id. As the 

walnut trees were surrounded by brush, accessible only by path, and unirrigated 

(there was no running water on the property), we have no trouble answering this 

question in the negative. We do not even know “the number of walnut trees per 

acre.” See id. In short, even if Nudo’s case were a close call under our statutes and 

rules, it would not be under the WPAM.12 

 

11

 Although Nudo provided few details about the “windbreak packet,” such as the effort

spent planting it or its utility to walnut cultivation, we can assume that this might be a measure 

“taken to ensure proper tree growth.” Nonetheless, this was the only measure that Nudo arguably 

took in line with WPAM guidance and, the Board implicitly found, was insufficient to establish 

agricultural use. 

12

 In reaching the opposite conclusion, the Dissent (correctly) notes that tax assessment of 

agricultural land is retrospective, in that land must be “in an agricultural use for the production 

season of the prior year.” See WIS. ADMIN. CODE § TAX 18.05(4); supra, ¶¶13-15; Dissent, ¶¶1-

2. We uphold the Board’s decision for precisely that reason: there was substantial evidence that 

Nudo’s land was not in an agricultural use during the production season of 2017, the relevant tax 

assessment year. Of course, in contrast to the agricultural classification, the residential 

classification may take into account whether residential use is “reasonably likely or imminent.” 

See supra, ¶¶13, 22-23. The Dissent appears to take issue with this principle, but this is the law 

and precedent to which we are bound. See Thoma, 381 Wis. 2d 311, ¶18; WIS. STAT.

§ 70.32(2)(c)3; Dissent, ¶3. Furthermore, the Dissent’s implication notwithstanding, our decision 

in no way supports the premise that an assessor could classify land as residential based only on its

potential for future residential development, if such land were, in fact, demonstrably agricultural. 

That property would properly meet the definition of “agricultural land,” so as a matter of both fact 

and law, the assessor could not treat the land as vacant or apply WPAM guidelines for determining 

when vacant land should be classified as residential. 
No. 2019AP1618

22

¶36 Our supreme court’s decision in Ogden, on which Nudo places 

considerable reliance, provides a helpful contrast to this case. In Ogden, “[t]he 

evidentiary record before the Board conclusively show[ed]” that the property at 

issue was agricultural because it was “devoted primarily to agricultural use”—that 

is, it was “chiefly put towards the growing of Christmas trees, apples, and hay” in 

the prior production season and, as of January 1 of the tax assessment year, was not 

put towards an incompatible use. Ogden, 385 Wis. 2d 676, ¶¶36, 42. In particular, 

the Christmas and apple trees were “individually staked out and planted in clean 

rows,” the hay was “consistently planted and harvested,” and the owners indicated 

plans for future harvests. Id., ¶43. Here, the evidence before the Board 

demonstrated the opposite: no planting, no cultivation, and no concrete plans for 

future production. Both Ogden and this case concern property (allegedly) farmed 

without a business purpose, but the similarity ends there. 

¶37 Because neither portion of this property is properly classified as 

agricultural land, it is obvious that the entire property cannot be so classified. We 

separately consider the classification of the whole only to recognize that there are 

“grey area[s]” (as Krystowiak put it) in determining agricultural classification. For 

example, a “hobby farm is generally devoted to residential use, with an incidental 

agricultural use” and should therefore be classified as residential. WPAM 14-10. 

At some point, the agricultural use becomes more extensive, and the agricultural 

designation more appropriate. It is not our role on certiorari review to precisely 

define where that line lies—this, of course, involves a fact-specific inquiry—and 

we decline any attempt to do so here. We hold only that neither the law nor the 

evidence permits us to overturn the residential classification of an overgrown, 

uncultivated vacant lot awaiting future residential development, given the minimal 

showing of agricultural activity in the record before us. We affirm.
No. 2019AP1618

23

By the Court.—Order affirmed.
No. 2019AP1618(D)

¶38 REILLY, P.J. (dissenting). Ogden requires that the tax assessment of 

agricultural land be made retrospectively rather than prospectively. See State ex 

rel. Peter Odgen Fam. Tr. of 2008 v. Board of Rev., 2019 WI 23, ¶¶28-31, 38-41, 

385 Wis. 2d 676, 923 N.W.2d 837. To determine whether land is entitled to be 

classified as “agricultural land,” the relevant statutes and administrative rules 

instruct that we are to look to whether the land is “devoted primarily” to “‘growing’ 

the relevant crops” as of “January 1 of the assessment year” and not whether the 

property owner is “marketing, selling, or profiting from them.” 

Id., ¶¶28-31, 38 (citations omitted); see also WIS. ADMIN. CODE § TAX 18.05(4) 

(July 2018) (“‘Land devoted primarily to agricultural use’ means land in an 

agricultural use for the production season of the prior year, and not in a use that is 

incompatible with agricultural use on January 1 of the assessment year.” (emphasis 

added)). This necessarily requires looking back rather than forward in the 

assessment. If land is “devoted primarily to agricultural use,” then “as a matter of 

law” the land is “entitled to be classified as ‘agricultural land.’” Ogden, 385 Wis. 

2d 676, ¶44; see also WIS. STAT. § 70.32(2)(c)1g. As the Majority errs in applying 

a prospective application of tax assessment law to Nudo Holdings, LLC’s land, I 

respectfully dissent.

¶39 Land has an “agricultural use” if it is put “chiefly ... towards 

agricultural use.” Ogden, 385 Wis. 2d 676, ¶39. As of January 1, 2018, Nudo’s 8.9 

acre vacant land was in an unimproved state: it had no habitable structures, it had 

no sewer or water, it was registered by the State of Wisconsin as “livestock 

premises,” it was licensed by the City of Kenosha to have poultry, it had a walnut 
No. 2019AP1618(D)

2

grove to harvest, it had trees planted by Nudo to protect the walnut trees, and it had 

Christmas trees for harvest. Nudo’s land had no residential use as of January 1, 

2018—only a desire by Nudo that it be residential in the future and only a desire by 

the City that it receive taxes for Nudo’s property as if it was residential property. 

¶40 The reason our statutes and administrative code regulations apply a 

retrospective assessment to agricultural land is that a landowner can be priced off 

his or her land by the government’s imposition of a tax based upon the prospective 

use of the land. As the Majority recognizes, our legislature has determined that “fair 

market” valuation does not apply to agricultural land in order to protect our farm 

economy and to curb urban sprawl. Majority, ¶12. If assessors apply a 

consideration that “residential use is reasonably likely or imminent,” see Majority, 

¶¶22-23, which is really just another way to apply a “highest and best use” fair 

market value approach,1then assessors would consistently be conducting a fair 

market value assessment rather than the agricultural land assessment pursuant to 

Ogden. If land as of January 1 is devoted to agricultural purposes, then fair market 

valuation does not apply and a business purpose is not required for the land to 

qualify as “agricultural land” for property tax purposes. Ogden, 385 Wis. 2d 676, 

¶33; see also WIS. STAT. § 70.10; WIS. ADMIN. CODE § TAX 18.05(4).

¶41 Both the City of Kenosha and the State of Wisconsin gave official 

recognition to Nudo’s agricultural use of his vacant land, and Ogden makes clear 

that growing trees for later harvest is an agricultural use. Ogden, 385 Wis. 2d 676, 

¶43. I respectfully dissent.

 

1

 Fair market value “must reflect its ‘highest and best use,’” i.e., a prospective 

consideration. See Forest Cnty. Potawatomi Cmty. v. Township of Lincoln, 2008 WI App 156, 

¶10, 314 Wis. 2d 363, 761 N.W.2d 31 (citation omitted); see also WIS. STAT. § 70.32(1).
No. 2019AP1618(D)

2