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(2017 – Unpublished)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. 
2

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.
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,

 v.

Village of Slinger,

 Respondent-Respondent.

FILED

MAY 10, 2018

Sheila T. Reiff

Clerk of Supreme Court

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v. Village of Slinger, No. 2015AP1970, unpublished slip op.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 

2

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.
No. 2015AP1970 & 2016AP2528 

3

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.
No. 2015AP1970 & 2016AP2528 

4

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 
No. 2015AP1970 & 2016AP2528 

5

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: 
No. 2015AP1970 & 2016AP2528 

6

"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)
No. 2015AP1970 & 2016AP2528 

7

¶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.
No. 2015AP1970 & 2016AP2528 

8

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.
No. 2015AP1970 & 2016AP2528 

9

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)
No. 2015AP1970 & 2016AP2528 

10

¶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.
No. 2015AP1970 & 2016AP2528 

11

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.
No. 2015AP1970 & 2016AP2528 

12

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 . . . ."
No. 2015AP1970 & 2016AP2528 

13

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.
No. 2015AP1970 & 2016AP2528 

14

¶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
No. 2015AP1970 & 2016AP2528 

15

¶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."
No. 2015AP1970 & 2016AP2528 

16

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 
No. 2015AP1970 & 2016AP2528 

17

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."
No. 2015AP1970 & 2016AP2528 

18

¶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 
No. 2015AP1970 & 2016AP2528 

19

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.
No. 2015AP1970 & 2016AP2528 

20

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)
No. 2015AP1970 & 2016AP2528 

21

 

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)
No. 2015AP1970 & 2016AP2528 

22

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.
No. 2015AP1970 & 2016AP2528 

23

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.
No. 2015AP1970 & 2016AP2528 

24

¶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 
No. 2015AP1970 & 2016AP2528 

25

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.
No. 2015AP1970 & 2016AP2528 

26

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.
No. 2015AP1970 & 2016AP2528.pdr

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¶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 
No. 2015AP1970 & 2016AP2528.pdr

2

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.
No. 2015AP1970 & 2016AP2528.pdr

3

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. 
No. 2015AP1970 & 2016AP2528.pdr

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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. 
No. 2015AP1970 & 2016AP2528.pdr

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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). 
No. 2015AP1970 & 2016AP2528.pdr

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¶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.
No. 2015AP1970 & 2016AP2528.pdr

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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:
No. 2015AP1970 & 2016AP2528.pdr

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(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.
No. 2015AP1970 & 2016AP2528.pdr

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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.
No. 2015AP1970 & 2016AP2528.pdr

10

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. 
No. 2015AP1970 & 2016AP2528.pdr

11

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.
No. 2015AP1970 & 2016AP2528.pdr

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