Sausen v. Town of Black Creek Bd. of Review

• Citation: 352 Wis.2d 576,2014 WI 9,843 N.W.2d 39
• Decision Date: 19 February 2014
• Docket Number: No. 2010AP3015.,2010AP3015.
• Parties: Frank J. SAUSEN, Petitioner–Appellant–Petitioner, v. TOWN OF BLACK CREEK BOARD OF REVIEW, Respondent–Respondent.
• Court: Wisconsin Supreme Court

352 Wis.2d 576

843 N.W.2d 39

2014 WI 9

Frank J. SAUSEN, Petitioner–Appellant–Petitioner,

v.TOWN OF BLACK CREEK BOARD OF REVIEW, Respondent–Respondent.

No. 2010AP3015.

Supreme Court of Wisconsin.

Argued Sept. 4, 2013.

Decided Feb. 19, 2014.

For the petitioner-appellant-petitioner, there were briefs by R. George Burnett, T. Wickham Schmidt, and Conway, Olejniczak & Jerry, S.C., Green Bay, and oral argument by R. George Burnett.

For the respondent-respondent, there was a brief by Michael C. Menghini and Herrling Clark Law Firm Ltd., Appleton, and oral argument by Michael C. Menghini.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1 This is a review of an unpublished decision of the court of appeals affirming an order of the circuit court for Outagamie County, Michael W. Gage, Judge.¹ In a certiorari review, the circuit court affirmed the Town of Black Creek Board of Review's assessment of taxpayer Frank J. Sausen's real property for purposes of real estate taxation.² The court of appeals summarily affirmed the order of the circuit court. We affirm the decision of the court of appeals.

¶ 2 The issue presented is whether the town board of review erred in refusing to lower the assessment of the taxpayer's real property. The town assessor valued the property at $27,500, classified the property as “productive forest land,” and assessed the property at $27,500. The taxpayer does not challenge the assessor's valuation of the property. The taxpayer challenges the assessment on the ground that the assessor's classification of the property is erroneous.

¶ 3 The assessor's classification of the property directly affects the assessment in the present case: Property classified as “productive forest land” under Wis. Stat. § 70.32(2)(a) and (c)2. (2011–12) ³ is assessed at full value; property classified as “undeveloped land” is assessed at 50 percent of its full value.⁴ The taxpayer claims that the board should change the classification of the property to “undeveloped land” under Wis. Stat. § 70.32(2)(c)4. and that the property, properly classified as undeveloped land, should be assessed at $13,750, that is, at 50 percent of the full value of $27,500.

¶ 4 The taxpayer in the present case appeals a determination of the board of review under Wis. Stat. § 70.47(13), which provides that an “appeal from the determination of the board of review shall be for an action for certiorari....” ⁵ Accordingly, this court's review of the board's determination of the assessment and classification of the property is by certiorari review.

¶ 5 In certiorari review, this court reviews a decision of the board of review under Wis. Stat. § 70.47(13), not the decisions of the circuit court or court of appeals. This court reviews a decision of the board of review in the same manner as the circuit court and court of appeals, benefiting from their analyses. Waste Mgmt. of Wis., Inc. v. Kenosha Cty. Bd. of Review, 184 Wis.2d 541, 554, 516 N.W.2d 695 (1994).

¶ 6 In a certiorari review, the court is confined to determining 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.⁶

¶ 7 The taxpayer's argument in the present case centers on the fourth element of certiorari review, namely that the board's determination to adopt the assessor's classification of the property is not supported by evidence such that the board might reasonably make the determination in question.

¶ 8 The taxpayer argues that he does not have the burden to prove the classification and by extension, the assessment, erroneous; that the board, the circuit court, and the court of appeals imposed that burden of proof on him, erroneously according a presumption of correctness to the assessor's classification of the property; and that the board erroneously concluded that the taxpayer did not carry his burden at the board hearing. The taxpayer asks the court to remand the matter to the board so that it can determine the correct assessment without imposing on the taxpayer the burden of proving the classification erroneous.

¶ 9 The statutes do not state whether the taxpayer challenging an assessment (or classification) has the burden of proving at the board hearing that the assessment (or classification) is incorrect.

¶ 10 Upon considering the general rule of law regarding burden of proof, the statutes, and the case law, we conclude that the taxpayer challenging an assessment and classification has the burden of proving at the board hearing that the assessment and classification of property are erroneous; that the taxpayer did not meet his burden of proof; and that the board's determination to maintain the assessment is supported by a reasonable view of the evidence. We therefore affirm the decision of the court of appeals.

¶ 11 The following facts are not in dispute for purposes of this review. Frank Sausen, the taxpayer, owned a 10–acre plot of property at W5930 County Road A, parcel number 010064400, in the Town of Black Creek, Outagamie County, Wisconsin. He used the property for occasional hunting. The property has not been used to produce commercial forest products.

¶ 12 In early November 2009, the taxpayer was notified that the assessment of his property had increased from $11,000 in 2008 to $27,500 in 2009. The increase in assessment in 2009 resulted from an increase in the assessor's valuation of the property, not a change in classification.⁷

¶ 13 Pursuant to Wis. Stat. § 70.32, the 2009 assessment roll included the assessor's valuation of the property at $27,500 as well as the assessor's classification of the property as “low grade woods.”

¶ 14 According to the Wisconsin Property Assessment Manual, “low grade woods” is a permissible subset of “productive forestland.” ⁸ “Productive forest land” is defined in Wis. Stat. § 70.32(2)(c)2. as “land that is producing or is capable of producing commercial forest products and is not otherwise classified under this subsection.” ⁹

¶ 15 Before we examine the issues of burden of proof and the presumption of the correctness of the assessor's classification of the property, we describe the statutory methodology for creating an assessment for real estate taxation. Wisconsin Stat. § 70.32 establishes a three-part methodology for creating an assessment: First, an assessor assigns the property a “valuation”—a value of the property to be assessed based on the statutory requirements in Wis. Stat. § 70.32 and the Wisconsin Property Assessment Manual.¹⁰ The Wisconsin Property Assessment Manual at 7–7 through 7–8 explains that the legislature has established value standards for different classes of properties. Value may thus be affected by the classification of the property.¹¹

¶ 16 Second, “the assessor, having fixed a value,” “segregates” the property into a “class” under the statutes.¹² The legislature has established eight classes: residential, commercial, manufacturing, agricultural, undeveloped, agricultural forest, productive forest land, and other. SeeWis. Stat. § 70.32(2).

¶ 17 Third, certain classes, notably agricultural forest land and undeveloped land, are assessed at a percentage of full value. Undeveloped land “shall be assessed at 50% of its full value,” with the value determined as set forth in the first step described above. SeeWis. Stat. § 70.32(4).

¶ 18 This case involves a challenge to an assessment, based on a challenge to classification. Although Wis. Stat. § 70.32 sets forth a methodology for determining an assessment and uses the word “assessment” often, the word is not defined. The words “assessment” and “assessed value” are set forth in the glossary of terminology in the Wisconsin Property Assessment Manual to mean “a dollar amount assigned to the taxable property ... by the assessor for the purpose of taxation.” The Manual states that “the levy is applied directly against it [the assessment] to determine the tax due.” ¹³

¶ 19 We begin our discussion of whether the taxpayer has the burden of proof regarding the classification of property by enunciating the general rule of law that “a party seeking judicial process to advance his position carries the burden of proof.” ¹⁴ A board of review is a quasi-judicial body to which this general rule governing burden of proof applies.¹⁵ Applying this rule to the present case means the taxpayer has the burden of proof.

¶ 20 The taxpayer argues that this general rule governing the burden of proof does not apply to him because the statute is silent about the burden of proof and the statutes accord a presumption of correctness only to the assessor's valuation, not to the assessor's classification or assessment. The taxpayer recognizes, as we do, that the concepts of burden of proof and presumption of correctness are intertwined. “The concept of a ‘presumption’ is very familiar in the law, and it is closely related to the concept of a ‘burden.’ ” Ottman v. Town of Primrose, 2011 WI 18, ¶ 50, 332 Wis.2d 3, 796 N.W.2d 411.

¶ 21 Although our initial impression is that the general rule assigning the challenging party the burden of proof applies in the present case, we examine the statutes and the case law to inform us further.

¶ 22 Support for applying this general rule allocating the burden of proof to the taxpayer challenger is found in Wis. Stat. § 70.47(7). The statute places a burden on a taxpayer who objects to a valuation to present evidence to the board in support of the objection. This provision adopts the general rule placing the burden of proof on the taxpayer to put on an affirmative case in his or her favor before the board:

Wis. Stat. § 70.47(7)(a) Objections to valuations.... No person shall be allowed in any action or proceedings to question the amount ¹⁶ or valuation of property unless such written objection has been filed and such person in good faith...