BEFORE THE STATE BOARD OF EQUALIZATION

 

FOR THE STATE OF WYOMING



 

IN THE MATTER OF THE APPEAL OF )

LANE R. AND DIANNA K. ROSS FROM )

A DECISION OF THE TETON COUNTY )             Docket Nos. 2000-157, 2000-158

BOARD OF EQUALIZATION - 2000 )

PROPERTY VALUATION )

 

ORDER OF CONSOLIDATION

FINDINGS OF FACT

CONCLUSIONS OF LAW

DECISION AND ORDER

 

APPEARANCES

Leonard R. Carlman, Hess and Carlman for Lane R. and Dianna K. Ross, Petitioners.

James L. Radda, Deputy Teton County Attorney, for the Teton County Assessor (Assessor).

 

ORDER OF CONSOLIDATION

 

These Matters have been filed with the State Board of Equalization, hereinafter referred to as "SBOE", after an unusual procedural history. The Assessor of Teton County, Suzanne Olmstead, hereinafter referred to as "Assessor", separately assessed five parcels owned by Petitioners. Petitioners originally filed one letter of protest and supporting exhibits for the five parcels [Record p. 198]. The Petitioners then filed separate protest forms for each of the five parcels [Record pp. 206, 227, 244, 261, 272]. The Teton County Board of Equalization, hereinafter referred to as the "CBOE", set one hearing date for all the properties. One hearing was held for all the properties and at the hearing the Assessor and the Petitioners presented exhibits and argument for each parcel. The CBOE issued two Findings of Fact, Conclusions of Law and Decision combining two parcels in one finding and the other three parcels in another finding. [Record pp. 302, 306]. The Petitioners filed one notice of appeal and the SBOE assigned two docket numbers for the two Findings. The Petitioners filed the same Opening Brief in both dockets and the Assessor filed the same Response Brief in both Dockets. Even though no motion for consolidation has been made and even though no notice of intent to consolidate has been entered it appears from the briefs that both parties consent to the consolidation of the two dockets.



 

IT IS THEREFORE HEREBY ORDERED:

Docket 2000-157 and Docket 2000-158 are hereby consolidated.



 

This matter was considered by the SBOE consisting of Edmund J. Schmidt, Chairman, Roberta A. Coates, Vice-Chairman, and Sylvia Lee Hackl, Member, on written information and argument pursuant to a Briefing Order (Locally Assessed Property) dated November 13, 2000. It arises from a decision by the Teton CBOE concerning the 2000 valuation of property owned by Petitioners as located in Teton County, Wyoming. The issue is:

          Was the CBOE decision that Petitioners' property is not agriculture land supported by substantial evidence, according to procedures required by law, and              neither arbitrary, capricious, nor inconsistent with law?



JURISDICTION
 

The SBOE is mandated to "hear appeals from county boards of equalization. . . upon application of any interested person adversely affected" and hold hearings after due notice pursuant to the Wyoming Administrative Procedures Act and prescribed rules and regulations. Wyo. Stat. 39-11-102.1(c). An appeal from a county board of equalization decision must be filed with the State Board within thirty (30) days from entry of the county board decision. Rules, Wyoming State Board of Equalization Chapter 3, 2.

The SBOE is required to "[d]ecide all questions that may arise with reference to the construction of any statute affecting the assessment, levy, and collection of taxes, in accordance with the rules, regulations, orders, and instructions prescribed by the department." Wyo. Stat. 39-11-102.1(c)(iv).


DISCUSSION

The Petitioners filed an appeal with the CBOE challenging the 2000 estimate of fair market value established by the Assessor for property owned by Petitioners. Petitioners argue the Assessor wrongfully assigned a fair market value to the property. They assert the Assessor's classification and assessment of the property as non-agricultural land is incorrect because: (1) the property is utilized as agricultural land and should be assessed as such; (2) the property was classified and assessed as agricultural for all prior years and its use has not changed; (3) Petitioners have allowed others to graze six horses six months during the year; (4) Petitioners allow others to use a portion of the land to graze horses and drag, harrow, swath, and bale hay and grass (5) the property is not legally platted as a subdivision.

The Assessor valued Petitioners' property as non-agricultural because: (1) the lots are smaller than 35 to 40 acres, (2) agricultural use, as defined by Wyo. Stat. 39-2-103(a)(i) (recodified as Wyo. Stat. 39-13-101), is not met.

The CBOE's Order, found Petitioners had failed to present evidence supporting agricultural use of the property "for the primary purpose of obtaining a fair rate of return (monetary profit) as agricultural, consistent with the land's size, location and productive value." Therefore, the CBOE held that the Assessor had properly assessed Petitioners' property as non-agricultural.



 

1. The CBOE Order is not dated. [ Record pp. 302, 306.] However, the Order contains a blank for the date and the month of August, 2000 is on the Order. Petitioners' notice of appeal to this SBOE was filed on August 31, 2000. Because of the month of August was on the Order and the Order could not have been signed prior to August 1, 2000 and the Appeal was filed August 31, 2000, this SBOE will finds the Notice of Appeal was filed within thirty (30) days of the Order.

2. Petitioners filed an opening brief on January 4, 2001. The Assessor filed a response brief on January 29, 2001. Petitioners did not file a reply brief. [SBOE File.]

3. The Assessor assigned a fair market value to Petitioners' property and assessed it as non-agricultural property. [ Record p. 205, 237, 254, 271, 288.]
 

4. Petitioners' property is not part of a legally, platted subdivision and agricultural use is allowed.
 

5. Petitioners' property was assessed and classified as agricultural land for all years prior to 2000. Petitioner owns a total of 49.06 acres and requests that 44.5 acres be classified as agricultural. [Record p. 296]. Petitioner filed deeds for five parcels ranging in size from 8.98 acres to 10.02 acres. [Record pp. 216, 238, 255, 272, 289]. A chart of the parcels by tract number, assessment number, size, and appearance of the property as observed from an aerial photo [Record p. 204] follows:





 

6. Petitioners allowed others to graze six (6) horses for six months each year on their property and they produced 8-10 tons of hay. No sales were made and no monies were paid to Petitioners for a lease or for the hay. [Record pp. 296, 297]. The Petitioners introduced a letter from John and Lisa Potzerritz that they use a portion of the property as pasture and they use the property to produce hay and grass that maintains the animals over the course of the winter. The Potzerritz also indicated that a portion of the property is leased to others to provide grazing for their livestock. [Record p.199]. The Petitioners also produced a livestock permit for two horses owned by the Potzerritz and numerous receipts for farm equipment and supplies. [Record pp. 207-213, 228-234, 245-251, 262-268, 279-285].

 

7. An exhibit that best describes the facts of this case is the Teton County, Wyoming, 2000 Land Classification Questionnaire [Record pp.296, 297]. The answers of Petitioner reveal the land contains the Petitioners' residence, their employee's residence, their son's residence, their daughter's residence and a wood shed but no barns or corrals are listed. The land contains a six inch irrigation pipe and is fenced. There is no sales of crops from the land or from the production of livestock. Although the 2000 Land Classification Questionnaire filled out by Petitioner indicates they filed a Schedule F (Farm Schedule) with the Internal Revenue Service, no Schedule F was introduced into the CBOE record.

 

8. Petitioners disagree with the value assigned by the Assessor, based upon their opinion that the property should be assessed as agricultural land. [Petitioners' Notice of Appeal, filed August 31, 2000.] The Assessor changed the classification of the land from agriculture to other land assessed at market value when the Petitioners filed amended deeds to the land dividing the land into 5 parcels. In prior tax years, the land was valued as agricultural land and was deeded to the Petitioners in six parcels so the new transfers actually reduced the number of lots and increased the size of the parcels. The Petitioners filed amended deeds upon the request of the County. The Assessor's testimony that re-classification was required because of the filing of new amended deeds is illogical. The size of the parcels actually increased with the new deeds. Thus filing new deeds should not have triggered a reclassification from agriculture in and of itself.

 

9. Any Conclusions of Law set forth below which may include any Finding of Fact is incorporated herein by this reference.



 

10. Petitioners' notice of appeal was timely filed and the SBOE has jurisdiction to determine this matter.

 

11. The Constitution of the State of Wyoming in Article 15 11 (b), as amended November 21, 1988, provides:

(b) The legislature shall prescribe the percentage of value which shall be assessed within each designated class. All taxable property shall be valued at its full value as defined by the legislature except agricultural and grazing lands which shall be valued according to the capability of the land to produce agricultural products under normal conditions. The percentage of value prescribed for industrial property shall not be more than forty percent (40%) higher nor more than four (4) percentage points more than the percentage prescribed for property other than minerals.

12. The applicable statutes provide in relevant part:

Wyo. Stat. 39-13-101. Definitions.

 

As used in W.S. 39-13-103(b)(x), "agricultural land" means land which has been used or employed during the previous two (2) years and presently is being used and employed for the primary purpose of obtaining a monetary profit as agricultural or horticultural use or any combination thereof is to be agricultural land for the purpose of tax assessment unless legally zoned otherwise by a zoning authority.


 

13. The applicable DOR rule provides in pertinent part: :

 

Section 3. Definitions.

(a) "Agricultural land" means land which has been used or employed during the previous two (2) years and presently is being used and employed for the primary purpose of obtaining a monetary profit as agricultural or horticultural use or any combination thereof unless legally zoned otherwise by a zoning authority. Agricultural land shall generally include land actively farmed or ranched to obtain a fair rate of return.

 

(i) "Agricultural" means cultivation of the soil, the production of forage or crops, and the rearing, feeding, and management of livestock, poultry, bees, fish, or other animal species in domestic or captive environments.

 

(ii) "Primary purpose of obtaining a monetary profit" means the owner shall pursue agricultural or horticultural activity for a reasonable profit or at least upon the expectation of a reasonable profit consistent with the production capability of the land in question. The profit or reasonable expectation thereof shall be viewed from the standpoint of the fee owner and measured on the basis of the productive capability of the land in question.

 

(A) "Reasonable profit or expectation of profit" shall not be affected by independent intervening causes of production failure or non-productive capability of the land in question. The profit or reasonable exception thereof shall be viewed from the standpoint of the fee owner and measured on the basis of the productive capability of the land in question.

 

* * *
 

(C) The assessor shall also consider that certain activities which appear to be agricultural in nature do not by themselves qualify land for agricultural assessment. The activity, by itself, either does not raise the expectation of profit consistent with the land or the activity occurs after the agricultural product has been raised and harvested.

 

(II) Grazing on land by any animal kept as a hobby will not be considered agricultural unless accompanied by other agricultural activities which would generate an expectation of profit consistent with the land.

 

14. Prior SBOE decisions about the classification of land for agriculture valuation provide guidance in this decision. The primary test was enunciated "In the Matter of the Appeal of Paul T. Von Gontard, et. Al., from a Decision of the Teton County Board of Equalization, 1994 WL 17966 (Wyo. State Board Of Equalization). To qualify for an agriculture assessment the taxpayer must show:

 

1) The property has a current agricultural use,

2) The property had an agricultural use for the prior two years,

3) The taxpayer must obtain a monetary profit from the agricultural use, and

4) The agricultural use must be permitted by the zoning authority.

 

The record indicates the property may be used for agricultural use as it is currently zoned. However, there is no showing in the record of Petitioner's receiving a monetary profit. The SBOE questions whether the current and historical use of the property is truly agricultural. As the Rules, Department of Revenue Chapter 10, Section 3 (C) clarifies, just because certain activities (such as grazing horses) may appear to be agricultural in nature, it does not necessarily follow that the land is being used for an agricultural purpose absent a showing that a profit or reasonable expectation of a profit is demonstrated. We agree with the CBOE that the evidence in the record supports commercial use (excavation business) on one lot, residential use on one parcel and hobby use on the remaining parcels.

 

Land is not agricultural if it is used for the farmstead such as the land in parcels 1 and 4, In the Matter of the Appeal of R. Dale and Ann M. Neal from a Decision of the Sheridan County Board of Equalization, 1996 WL 6210899(1996). If the Petitioner fails to introduce evidence of prior and present agriculture use, it cannot be classified as agriculture. In the Matter of the Appeal of Janine Perrignon from a Decision of the Lincoln County Board of Equalization, 1998 WL 918628(1998).

 

15. The Petitioners have failed to demonstrate Tract 1, parcel 01-003302 is being used for agricultural purposes. It is used for residences and a commercial excavation business and does not have any appearance of agriculture.

 

16. Similar to Tract 1, the Petitioners have failed to demonstrate Tract 4, parcel 01-003305 is used for agriculture. It is used for a residence and contains other buildings.

 

17. The SBOE has held that land used to graze horses is agricultural but the facts are very different from the facts at hand and can be distinguished from this fact situation. In the Matter of the Appeal of Brenda L. Arnold, Laramie County Assessor from a Decision of the Laramie County Board of Equalization (Paul J. Steele) 1997 WL 345863 the Taxpayer demonstrated that the historical use was to graze sheep and cattle and that he was currently grazing horses. He had fenced 80 acres and had plans to fence more. He had applied weed spray and he was breeding horses for sale and presented a business plan outlining the number of horses needed to make a profit, the stud fees he anticipated collecting and the price of foals he anticipated for the profit. This Petitioner has only introduced evidence that horses are grazing on his property. Nor was there a grazing lease introduced into the record indicating the Petitioner's had received a monetary profit. There is no evidence the Petitioner anticipates breeding and selling horses or that there will ever be monetary profits from the horses. In fact, from the evidence on the record, the only logical inference to be drawn is that the horses on the property are for the purpose of a hobby and not for the primary purpose of making a monetary profit.

 

18. The grass and hay production from Tract 2, parcel 01-003303, Tract 3, parcel 01-003304 and Tract 5, parcel 01-003306, does not qualify the land for agriculture classification. If the Petitioners had demonstrated that monies had been made from the production commensurate with the ability of the land to produce hay, the SBOE may have agreed to an agriculture classification as was done in In the Matter of the Appeal of Laurie C. Sain from a Decision of the Fremont County Board of Equalization, 1997 WL 291710. Laurie C. Sain was able to prove she had sold hay and increased production with proper water and management, she had sprayed for leafy spurge and had improved ditch irrigation.

 

Even if the Petitioners showed they had irrigated the land, they failed to show it was to produce hay for a monetary profit. The SBOE has defined profit as a "fair rate of return". In the Matter of the Appeal of Joseph E. Cantwell from a decision of Platte County Board of Equalization, 1989 WL 234584. "If the land is primarily used for agricultural purposes and, as a result of such use, Petitioner benefits from the lease of the property commensurate with the productive capacity of the property or commensurate with the terms of grazing leases for similar properties, the agricultural classification is proper." In the Matter of the Appeal of Floyd A. Bishop from a Decision of the Albany County Board of Equalization, 1990 WL 284530. The taxpayer must intend a monetary profit and there is no showing the Petitioner intended to ever make a monetary profit or that the use of the land was commensurate with the productive capacity of the property.

 

19. The County Assessor argued that the rationale for Tracts 2 through 5 losing their agricultural status was because the Petitioners subdivided their parcel into 5 new tracts. (The record indicated the County Commissioners requested that they do so.) The SBOE, however, places no import on this argument. The SBOE has never required a reclassification of land if the acreage is below a certain amount. In the Matter of the Appeal of Joseph E. Cantwell from a decision of Platte County Board of Equalization, 1989 WL 234584 and In the Matter of the Appeal of Edward L. and Cheri S. Najim from a Decision of the Weston County Board of Equalization, 1999 WL 284872. Regardless of what triggered the reevaluation of the agricultural status of Petitioners' property, the County Assessor is required by statute to annually assess each property within her jurisdiction. Each tax year and the conditions and use of the property during that year shall govern the value of the property. Wyo. Stat. 39-13-103. Thus we do not think the Assessor erred by changing the classification of the land. Clearly, the Petitioners failed to demonstrate the land meets the current definition of agriculture land.

20. Our inquiry is limited to whether the 2000 assessed value established by the Assessor and confirmed by the CBOE is: (a) arbitrary, capricious and abuse of discretion or otherwise not in accordance with law; (b) in excess of statutory jurisdiction or authority; (c) without observance of procedures required by law; or (d) unsupported by substantial evidence. Rules, Wyoming State Board of Equalization Chapter 3, 9.

 

21. In considering the issue of substantial evidence, the question is whether there is evidence of record to be reasonably relied upon in coming to the conclusion reached by the CBOE. As a reviewing body, we will not substitute our judgment for findings reasonably supported by evidence in the CBOE record. Sage Club, Inc., v. Employment Sec. Comm'n., 601 P.2d 1306 (Wyo. 1979). While substantial evidence may be less than the weight of the evidence, it cannot be clearly contrary to the overwhelming weight of the evidence. As many courts have stated, "It is more than a mere scintilla of evidence or suspicion of a fact to be established." Mountain Fuel Supply Company v. Public Service Commission of Wyoming, 662 P.2d 878, 882 (Wyo. 1983). See also: Squillace v. Wyoming State Employees' and Officials' Group Insurance Board of Administration, 933 P.2d 488, 490-491 (Wyo. 1997).

 

22. In the absence of evidence to the contrary, the law assumes public officials have performed their duties properly, unless the official act in question appears irregular on its face. Thus a public officer, such as a tax assessor, acting in an official capacity, is presumed to act with knowledge of what he is doing. 29 Am. Jur. 2d 203 at 224.

 

23. The Petitioners have offered evidence that six horses graze on the property for six months and approximately 8 to 10 tons of hay is harvested from the property. There was no evidence this use is the highest or even an anticipated average agricultural use for this land. In fact, the CBOE may well have concluded that these are "hobby" animals. This "use" does not comply with the definition of agricultural property found in Wyo. Stat. 39-13-101.

24. The Petitioners failed to present evidence that a monetary profit is anticipated from the hay production or the grazing of the horses. Rules, Department of Revenue, Chapter 10, Section 3(a)(ii), does not require that a return of capital be realized, only that the profit be viewed from Petitioners' standpoint and the profit be measured considering the productive capability of the property. The record is devoid of evidence of monetary profit as required by statute and there is no evidence of monetary profit in the past or anticipated in the future.

 

25. Therefore, it is the SBOE's conclusion the CBOE Order and decision is supported by substantial evidence.

 

26. Petitioners have not met their burden of proof in this matter. The CBOE's Order is supported by substantial evidence and is in accord with the law.



 

The Teton County Board of Equalization Order and decision affirming the 2000 non-agricultural classification and assessment of Petitioners' property located in Teton County, Wyoming is hereby affirmed and the land classification is hereby affirmed.

Pursuant to Wyo. Stat. 16-3-114 and Rule 12, Wyoming Rules of Appellate Procedure, any person aggrieved or adversely affected in fact by this decision may seek judicial review in the appropriate district court by filing a petition for review within 30 days of the date of this decision.


Dated this 14th day of March, 2001.

 

STATE BOARD OF EQUALIZATION

 

Edmund J. Schmidt, Chairman
 

Roberta A. Coates, Vice-Chairman
 

Sylvia Lee Hackl, Member


ATTEST:

Wendy Soto, Executive Secretary