State of Wisconsin ex rel. The Peter Odgen Family Trust of 2008 and The Therese A. Mahoney-Ogden Family Trust of 2008, Petitioners-Appellants,
Board of Review for the Town of Delafield, Respondent-Respondent-Petitioner.
OF DECISION OF THE COURT OF APPEALS Reported at 381 Wis.2d
161, 911 N.W.2d 653');">911 N.W.2d 653 PDC No: 2018 WI APP 26
argument: November 5, 2 018
Circuit Court Waukesha county No. 2016CV1707 Kathryn W.
the respondent-respondent-petitioner, there were briefs filed
by R. Valjon Anderson, and Municipal Law & Litigation
Group, S.C., Waukesha. There was an oral argument by R.
the petitioners-appellants, there was a brief filed by Paul
W. Zimmer, and O'Neil, Cannon, Hollman, DeJong &
Laing S.C., Milwaukee. There was an oral argument by Paul W.
amicus curiae brief was filed on behalf of Wisconsin Realtors
Association, Wisconsin Builders Association, and NAIOP-WI by
Thomas D. Larson, Madison.
amicus curia brief was filed on behalf of Wisconsin Farm
Bureau Federation, Cooperative and Waukesha County Farm
Bureau by H. Dale Peterson, John H Laubmeier, and Stroud,
Willink & Howard, LLC, Madison.
SHIRLEY S. ABRAHAMSON, J.
In 2016, the Board of Review for the Town of Delafield
reclassified two lots of land owned by The Peter Ogden Family
Trust of 2008 and The Therese A. Mahoney-Ogden Family Trust
of 2008 from "agricultural land" to
"residential." This reclassification resulted in a
significant increase in property tax owed for the two lots.
The Board believed that to qualify for the "agricultural
land" classification, the land must be farmed for a
The Ogdens sought certiorari review, and the Circuit Court
for Waukesha County, Kathryn W. Foster, Judge, sustained the
Board's reclassification of the land as
The court of appeals reversed the circuit court, holding that
a business purpose was not necessary for land to be
classified as "agricultural land" for property tax
purposes."Because the assessor's
determination of the appropriate classification was driven by
his erroneous understanding of the law[, ]" the court of
appeals ordered the circuit court to remand the cause to the
Board to "assess the Trust property anew in a manner
that is not inconsistent with" the court of appeals'
We affirm the decision of the court of appeals.
We agree with the court of appeals that a business purpose is
not required in order for land to be classified as
"agricultural land" for property tax purposes.
Based on the undisputed evidence presented to the Board,
two lots at issue are entitled to be classified as
"agricultural land" as a matter of law.
Accordingly, we remand the cause to the Board for the limited
purpose of affixing a value to the two lots that we conclude
are entitled to be classified as "agricultural
The Ogdens own three adjacent lots of land in the Town of
Delafield. Only two of those lots are at issue in the instant
case. The smaller of the two lots is 4.6 acres,
and the larger of the two is 7.76 acres.
From 2012 through 2015, the two lots were classified as
"agricultural land" and "agricultural forest
land." When the two lots were classified as
"agricultural land" in 2015, the assessed value of
the lots was $17, 100. In 2016, however, tax assessor Judson
Schultz reclassified the two lots as "residential."
When classified as "residential," the assessed
value of the lots jumped to $886, 000. Thus, the
reclassification of the two lots from "agricultural
land" to "residential" resulted in a
significant increase in property tax owed by the Ogdens for
the two lots. The Ogdens filed an objection to the
Assessor's reclassification with the Board, and an
evidentiary hearing was held.
At the hearing, the Ogdens maintained that the two lots
should continue to be classified as "agricultural
land." Peter Ogden testified that the two lots were
primarily used to harvest apples and hay for food and fiber
and to grow Christmas trees. He explained that he grew apple
trees on approximately one acre of the smaller lot. On the
larger lot, Mr. Ogden testified that he grew Christmas trees
on approximately four to five acres. He testified that the
larger lot also contains a three-acre hayfield. Mr. Ogden
testified that a barn was built on the smaller lot and
presented a Certified Survey Map that showed a second
proposed barn on the larger lot. Mr. Ogden concluded his
testimony as follows:
In conclusion, growing apple trees, Christmas trees and
alfalfa, which is what I am doing on these two pieces of
land, should all be considered an agricultural use as long as
that is the primary use of that land. As long as that is the
primary use of that land. That is the primary use of that
Mr. Ogden presented aerial photographs of the two lots that
showed the progression of the lots dating back to 2005. The
2013 picture shows a green hayfield, and the 2015 picture
shows lines in the hayfield from when the hay was harvested.
Mr. Ogden also presented ground photographs of the two lots.
The pictures show apple trees and Christmas trees, each
planted in orderly rows and individually staked
The ground photographs also included several photographs of
the pre- and post-harvest hayfield. Mr. Ogden further
presented over 100 pages of expense reports, invoices,
receipts, equipment rental agreements, and checks showing the
Ogdens' farming expenses for the years 2011 through
The Ogdens called a local farmer, Lloyd Williams, as a
witness. Mr. Williams testified that he and Mr. Ogden have
"farmed [the lots] since 2012. We have plowed it. We
tilled it. . . . And if Mr. Ogden gets cattle some day, we
will hopefully work out a shared agreement where we can
continue to do this in the future." Mr. Williams
testified on cross-examination that he "[a]bsolutely,
without a doubt" planted hay in the Ogden's
hayfield. He elaborated that the Ogden's land had
"extremely good soil" and that the Ogdens
"fertilize it properly." Mr. Williams explained
that the three-acre hayfield "produces 150 bales per
acre," totaling approximately 450 bales of hay from the
entire field. Mr. Williams also reaffirmed statements he made
in a letter to Mr. Ogden dated three days before the hearing.
The letter was admitted into evidence at the hearing and
stated: "In 2012, we seeded alfalfa and brome grass and
used it for cattle feed. We have established a beautiful hay
field that we have continually harvested every year. We will
again be harvesting the hay crop in 2016 . . . ."
The Assessor also testified before the Board. The Assessor
explained the basis for his determination that the two lots
were no longer entitled to the "agricultural land"
Now, the issue is that the Ogdens may say well, they have a
tree orchard and they are doing it for ag use. I can't
really substantiate . . . whether [Ms. Mahoney-Ogden] is
doing it for personal or she is doing it for actual
agricultural economic benefit, I can't determine that.
And that is why I am seeking and have asked for all of this
documentation because-and the same goes for the trees, the
Christmas tree farm.
Now, I am, okay, looking at this and going, okay, does the
property taxpayer carry on an activity like a business.
Because that is what ag use is about. Ag use is really for
farmers; right? It is about farming.
And so, given that the physical evidence for me was difficult
to substantiate, I went to documentation. And I mean, if
you are going to be in ag use, I think you should be held to
the same standards as the farmers are held to. And I am sure
that [Mr. Williams] files ... a Schedule F profit and loss.
And I mean if I were running a business, I would.
[T]here should be a relationship between [Mr. Ogden and Mr.
Williams] because they're [sic] supposed to be a
transaction going on, per the contract. So, there is just a
bad feeling that I got. You know, this is actually being done
because there is no doubt, okay, there is a significant tax
benefit that is going on for [the Ogdens] to be able to get
the ag use. ... I guess I was just looking for things to be
much more clear-cut, everything flowing through because [Mr.
Ogden] had set up this tree farm account. ... I went through
and I looked at the receipts and I tabulated the number of
trees that the receipts were in there for. And I mean, again,
and if you are doing ag use, you're doing this to
generate an income. . . . Well, if you are going to be in ag
use, you're going to be in business and you better be on
top of it. I have my own business. ... I expected as a
business person as somebody in ag use to be on top of it.
And when I looked at the documentation, I just did not get a
good feeling. Me professionally that if somebody looked
behind me that they would look at this and they would
question whether this tree farm was being done actually for
agricultural reasons, to generate a profit for business, or
was it being done to obtain significant property tax savings.
You know, unfortunately, the ag use program you would think
it was really developed for the farmers. In reality there are
so many loop holes that people can take advantage. If you
truly knew what went on, you would shake your head. . . . And
I have called into question things that, I guess, I felt
professionally that I was obligated to do. With that, in
summary, I just am going to go back to ag use is for farmers.
Ag use is for business. Okay. If you want to get into it,
okay, then you need to show that you are going to actually be
doing a business. . . . So, all things to me just do not seem
to be a business. It seems to be an effort to make it look
like a business.
And I am-I want to make sure that if somebody looks behind
me, that I am coming up with the right judgment on a
situation. And I gave the, you know, Ogden the benefit of the
doubt because I let them in the ag program. And understand
somebody chooses to be in the ag program. I don't force
anybody. That is their choice. I inform them of the
consequences. I inform them especially if they are taking
residential land and putting it in ag use that I am going to
watch you closely because I know what the significant tax
benefits are. You dot your T's, you cross your things,
there is nothing that I can do. Developers do it all of the
time. Okay. Farmers do it all of the time with residential
land for individuals. And there is nothing that I can do as
long as they do it correctly. The Ogdens simply didn't do
it correctly. I am calling them. I can't again dispute
that they have planting [sic] things, but I do not think
it's for ag use. I do not think it's for business
On cross-examination, the Assessor admitted that he knew
there were individually "staked out" apple and
Christmas trees planted "in clean rows" on the two
lots. Nonetheless, after doing some "soul
searching," the Assessor concluded that he did "not
believe based on the documentation . . . that this is ag use
In sum, the Assessor believed that he could not conclusively
determine whether the two lots were devoted primarily to
agricultural use based on physical evidence of farming. He
then asked the Ogdens for documentation that might support an
"agricultural land" classification for the two
lots, but because the documentation, in his view, did not
sufficiently show that the Ogdens "carr[ied] on [the]
activity like a business," the Assessor concluded that
the two lots were not entitled to be classified as
During deliberations, Board member Edward Kranick expressed
that he had
[not] seen where it's necessary to really have a business
in all of these exhibits and in the guide for the board of
review. I have just seen that it's a use, that it has to
be devoted primarily to agricultural use, and that it's
being used in a way for agricultural use.
[T]here is-Christmas-there are trees that are planted in a
systemic [sic] way that appears to be in the use to be used
eventually once they mature to be farmed and that the [hay
is] being taken off and that there are orchards. That is what
I am hearing. If I am not hearing that or if that is not what
other people are hearing, please correct me or enlighten me.
The chairman of the Board, Paul Kanter, engaged in the
following exchange with counsel for the Board:
[Kanter]: As to farming, you would agree that it's [sic]
intent here is to protect a business concern, not
horticulture as our ordinance defines horticulture ....
[Counsel]: There does need-Actually in the assessor's
manual it makes [a] distinction between gardens and actual
crop production. There does have to be some kind of a
commercial interest in order for it to be separate from a
personal garden where you're using it yourself. You need
to have some interest in actually selling the product.
Board member Larry Krause stated that, in his view, the two
lots do "meet the definition, very loose definition, of
agricultural land." But, Mr. Krause added that "we
are bound to take the word of ...