Nudo Holdings, LLC v. Board of Review for the City of Kenosha

2020 WI APP 78
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP1618

†Petition for Review Filed

Complete Title of Case:

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 NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 25, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals 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

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.

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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

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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.

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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

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No. 2019AP1618

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

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No. 2019AP1618

¶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.

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No. 2019AP1618

[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

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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-A-
20, 14-A-26 through 28.

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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

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No. 2019AP1618

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

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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.

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No. 2019AP1618

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).

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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

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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:

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No. 2019AP1618

 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

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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).

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No. 2019AP1618

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

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No. 2019AP1618

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.

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No. 2019AP1618

¶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.

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No. 2019AP1618

¶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.

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No. 2019AP1618

¶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.

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No. 2019AP1618

By the Court.—Order affirmed.

23
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)

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,1 then 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).

2
No. 2019AP1618(D)

2