BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

MARK AND KATHY LOVELAND FROM )

A DECISION OF THE CROOK COUNTY ) Docket No. 2001-144

BOARD OF EQUALIZATION - 2001 )

PROPERTY VALUATION )

FINDINGS OF FACT

CONCLUSIONS OF LAW

DECISION AND ORDER

APPEARANCES

Mark and Kathy Loveland, Petitioners, appearing pro-se.

Susan Redding, Crook County Assessor, appearing pro-se.

DIGEST

This matter was considered by the State Board of Equalization (State Board) 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 April 11, 2002. It arises from a decision by the Crook County Board of Equalization (County Board) concerning the 2001 valuation of property owned by Petitioners as located in Crook County, Wyoming. The issue is:

Was the County Board decision that Petitioners’ property is not agricultural land supported by substantial evidence, according to procedures required by law, and neither arbitrary, capricious, nor inconsistent with law?

JURISDICTION

The State Board 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 State Board 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

Petitioners originally filed an appeal with the County Board challenging the 2001 estimate of fair market value established by the Assessor for property owned by Petitioners. The County Board heard the protest in a hearing on July 16, 2001, and upheld the Assessor’s assessment in a decision issued July 25, 2001. Petitioners then appealed to the State Board. The State Board remanded the appeal back to the County Board for a new hearing due to a failure of the County’s audio recording equipment. A second hearing was held by the County Board on December 4, 2001, and it once again upheld the Assessor’s assessment. The County Board’s decision along with the record and a functioning audiotape of the proceedings were returned to the State Board for review.

Petitioners argue the Assessor should not have assigned a fair market value to the property because it is agricultural property. They assert the Assessor’s classification and assessment of the property as non-agricultural land is incorrect because: (1) the property has been utilized as agricultural land for the previous two years and is presently being utilized as agricultural land; (2) the property had no crop yield in 2000 due to the drought; (3) Petitioners allowed a neighbor to graze his cattle on the land in 2000, and Petitioners sold about 20 tons of hay and one horse off of the property in 2001; (4) Petitioners bought the property from the prior owners, the Baakes, before it was platted, and not from the developer, Donahue, of the Kara Kreek Ranches.

The Assessor valued Petitioners’ property as non-agricultural because: (1) the property was listed in an advertising brochure as part of the Kara Kreek Ranches and this demonstrates that the land is being broken up and sold as “ranchettes” indicating the area is in transition from agricultural use to residential use; and (2) the definition of agricultural use, as defined by Wyoming Statute § 39-13-101, is not met.

The County Board’s Order Denying Protest found Petitioners 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.” The County Board held that the Petitioners’ property “was not a profitable agricultural operation and is mainly intended for and used for recreational, residential and hobby purposes.” Therefore, the County Board held that the Assessor properly assessed Petitioners’ property as non-agricultural.

FINDINGS OF FACT

1. The County Board Order Denying Protest is dated February 6, 2002. [CBOE Record pp. 68-78]. The Notice of Appeal was filed March 5, 2002, within thirty days of the County Board Order.

2. Petitioners filed an Opening Brief on May 2, 2002. The Assessor filed a response letter on June 12, 2002. Petitioners filed a reply brief on June 28, 2002. [State Board File.]

3. Petitioners’ property was not part of a legally platted subdivision at the time that Petitioners purchased the property (April 28, 2000): however, covenants for the Kara Kreek Ranches were entered into on March 31, 2000, and recorded in the Crook County records on April 28, 2000, at Book 375 of Photos, Page 33. The County Board accepted the Assessor’s testimony that the 48.02 acre parcel is not capable of producing a profit based upon the productivity of the land at the $65,500 cost Petitioners paid for the land. [CBOE Order, FF # 9 & 12; Tape Recording of Hearing].

4. The Assessor assigned a fair market value of $52,851 to Petitioners’ property, assessing it as residential property, not agricultural property. Petitioners disagree with the Assessor and believe the property should be classified as agricultural land. [CBOE Order FF #1; CBOE record Vol. I, p. 5].

5. Petitioners produced no crop on the property in the year 2000. None of the farm equipment owned or purchased by Petitioners was used in agricultural production in 2000. Petitioners were not able to raise hay in year 2000 due to a drought, however, a neighbor grazed cattle on Petitioners’ land. In 2001 they did produce some hay (18.93 tons) which they sold in August, 2001 for $1325 and they also sold a horse in August, 2001 for $3000. [CBOE FF; Tape Recording of Hearing]. Petitioners did repair fence on the property, erected a shop, and stated their intention to build a house and live in it as their permanent residence. [CBOE FF; Tape Recording of Hearing].

6. The County Board found that Petitioners’ property is not a profitable agricultural operation and is mainly intended for and used for recreational, residential and hobby purposes. [CBOE Order, FF # 12]. Petitioners’ property is a parcel in a large lot subdivision known as Kara Kreek Ranches, which was formerly a working ranch and classified as agricultural lands. The ranch is now split up by a plat amongst 41 individual owners and is in transition from agricultural land to residential. [CBOE Order, FF # 14]. The recorded covenants for Kara Kreek Ranches are restrictive covenants on the land that are similar to those filed on residential platted subdivisions, not agricultural lands. [CBOE Order, FF #16].

7. Any discussion above or Conclusion of Law set forth below which includes a finding of fact may also be considered a Finding of Fact and is therefore incorporated herein by this reference.

CONCLUSIONS OF LAW

8. Petitioners’ notice of appeal was timely filed and the State Board has jurisdiction to determine this matter.

9. Our inquiry is limited to whether the 2001 assessed value established by the Assessor and confirmed by the County Board is: (a) arbitrary, capricious and an 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.

10. 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 County Board. As a reviewing body, we will not substitute our judgment for findings reasonably supported by evidence in the County Board 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).

11. 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. Public Officials § 203 at 224.

12. The Constitution of the State of Wyoming in Article 15 Section 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.

13. The applicable statute in effect at the time defines agricultural land as follows:

Wyo. Stat. § 39-13-101(a)(iii) Definitions.

“Agricultural land”, as used in W.S. 39-13-103(b)(x), 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. 1

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1 Laws 2002, Sp. Session, Chapter 92, § 1, amends this section

effective January 1, 2003, by rewriting (a)(iii) and adding (a)(viii):

Wyo. Stat. § 39-13-101. Definitions.

(a) As used in this article:

(iii) [Effective January 1, 2003.] “Agricultural land”, as usedin W.S. 39-13-103(b)(x), means land which meets the requirements of W.S. 39-13-103(b)(x), for the purpose of tax assessment;

(viii) [Effective January 1, 2003.] “Agricultural purpose,” as used in W.S. 39-13-103(b)(x), means the following land uses when conducted consistent with the land’s capability to produce:

(A) Cultivation of the soil for production of crops; or

(B) Production of timber products or grasses for forage; or

Wyo. Stat. § 39-13-103(b)(x). Imposition

(b) Basis of tax. The following shall apply:

(x) [Effective January 1, 2003.] The following shall apply to agricultural land:

(A) The department shall determine the taxable value of agricultural land and prescribe the form of the sworn statement to be used by the property owner to declare that the property meets the requirements of subparagraph (B) of the paragraph. In determining the taxable value for assessment purposes under this paragraph, the value of agricultural land shall be based on the current use of the land, and the capability of the land to produce agricultural products, including grazing and forage, based on average yields of lands of the same classification under normal conditions;

(B) Contiguous or noncontiguous parcels of land under one (1) operation owned or leased shall qualify for classification as agricultural land if the land meets each of the following qualifications:

(I) The land is presently being used and employed for an agricultural purpose;

(II) The land is not part of a platted subdivision;

(III) If the land is not leased land, the owner of the land has derived annual gross revenues of not less than five hundred dollars ($500.00) from the marketing of agricultural products, or if the land is leased land the lessee has derived annual gross revenues of not less than one thousand dollars ($1000.00) from the marketing of agricultural products; and

(IV) The land has been used or employed, consistent with the land’s size, location and capability to produce as defined by department rules and the mapping and agricultural manual published by the department, primarily n an agricultural operation, or the land does not meet this requirement and the requirement of subdivision (III) of this subparagraph because the producer:

(1) Experiences an intervening cause of production failure beyond its control;

(2) Causes a marketing delay for economic advantage;

(3) Participates in a bona fide conservation program, in which case proof by an affidavit showing qualification in a previous year shall suffice; or

(4) Has planted a crop that will not yield an income

in the tax year.

(C) If needed, the county assessor may require the producer to provide a sworn affidavit affirming that the land meets the requirements of this paragraph. When deemed necessary, the county assessor may further require supporting documentation.

14. The applicable Department of Revenue Rules, at Chapter 10, 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 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.

* * *

(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.

described in the state of Wyoming Appraisal Manual for Non-Agricultural

Land as published by the Department of Revenue, Ad Valorem Division:

(ii) Lands in active transition from agricultural use to residential

or commercial use;

15. Prior State Board decisions about the classification of land for agricultural 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.

16. The record indicates the property may have been used for an agricultural use for

the previous two years because the parcel had been a part of a large working ranch. However, in April of 2000, the ranch was broken up into over forty “ranchettes” of which Petitioners’ parcel was one. The Assessor testified that with the exception of one or two parcels, all of the old Kara Kreek Ranch lands were classified as residential lands for the year 2000. [CBOE Hearing tape, Exhibit 6, pp. 30 - 33 plus map]. Petitioners testified that in the year in question (2000), no crops were raised on their property; thus, there is no showing in the record Petitioners received a monetary profit. We agree with the County Board that the evidence in the record does not support agricultural use. If a petitioner fails to introduce evidence of prior and present agriculture use, the land cannot be classified as agricultural. In the Matter of the Appeal of Janine Perrignon from a Decision of the Lincoln County Board of Equalization, 1998 WL 918628 (Wyo. State Board of Equalization).

17. There was no hay production whatsoever in 2000. Nor does the limited hay production in 2001 qualify the land for an agricultural classification. If Petitioners can demonstrate that monies were made from the production commensurate with the ability of the land to produce hay, then an agricultural classification may be appropriate as was found in In the Matter of the Appeal of Laurie C. Sain from a Decision of the Fremont County Board of Equalization, 1997 WL 291710 (Wyo. State Board of Equalization). In that case, the petitioner was able to prove she sold hay and increased production with proper water and management, that she had sprayed for leafy spurge and that she had improved ditch irrigation. Such activities demonstrated the land was being used and improved with an expectation of achieving monetary gain. No such demonstration was made in this case.

18. The State Board 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 (Wyo. State Board of Equalization). “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 (Wyo. State Board of Equalization). The taxpayer must intend a monetary profit. In this case there is no showing Petitioners intended to make a monetary profit, or that the use of the land was commensurate with the productive capacity of the property. In fact, the Assessor demonstrated that the $65,500 purchase price paid by Petitioners for the 48-acre parcel was not consistent with a profitable hay raising operation.

19. There is substantial evidence on the record to support the County Board’s conclusion that Petitioners’ property was in the process of transition from agricultural purposes to residential. See Rules Department of Revenue Chapter 10, § 3, (c)(ii). Covenants for the Kara Kreek Ranch Property owners were filed and recorded in the County records on April 28, 2000, one month after Petitioners purchased the property. The covenants are similar to typical covenants provided for within residential platted subdivisions dealing with all sorts of non-agricultural issues, such as type of housing, fencing, parking, animals at large, garbage removal, etc. In addition, the Kara Kreek Ranches sales brochure clearly indicates that the agricultural nature of the Kara Kreek Ranch has been diminished and the properties are being sold primarily for their recreational, residential and hobby values.

20. The County Assessor is required by statute to annually assess each property within her jurisdiction. Each tax year, the conditions and use of the property on the lien date governs the value of the property. Wyo. Stat. § 39-13-103. In this instance, the value of the Petitioners’ property is set on the lien date of January 1, 2001, which looks back upon the use and condition of the property for the previous year, that being January 1, 2000, to December 31, 2000. The Assessor did not err by changing the classification of the land. Clearly, Petitioners failed to demonstrate the land met the current definition of agricultural land.

21. Petitioners failed to present evidence that a monetary profit is anticipated from the hay production. The Department of Revenue Rule, Chapter 10, Section 3(a)(ii), does not require that a return of capital be realized, only that the profit be viewed from the fee owners’ standpoint and the profit be measured considering the productive capability of the property. The record is devoid of evidence of monetary profit for the tax year in question. Instead, all of the evidence on the record points to an area that is in transition from agricultural use to residential.

22. Petitioners have not met their burden of proof in this matter. The County Board’s Order Denying Protest is supported by substantial evidence and is in accord with the law.

THIS SPACE INTENTIONALLY LEFT BLANK

ORDER

IT IS THEREFORE HEREBY ORDERED:

The Crook County Board of Equalization Order Denying Protest and decision affirming the 2001 non-agricultural classification and assessment of Petitioners’ property located in Crook 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 15^th day of October, 2002.

STATE BOARD OF EQUALIZATION

__________________________________

Edmund J. Schmidt, Chairman

_____________________________________

Roberta A. Coates, Vice-Chairman

_____________________________________

Sylvia Lee Hackl, Member

ATTEST:

________________________________

Wendy Soto, Executive Secretary