BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

PONDEROSA UBO, ELLIS HEMLER, )

TRUSTEE FROM A DECISION OF )

THE WESTON COUNTY BOARD OF ) Docket No. 2001-156

EQUALIZATION - 2001 PROPERTY )

VALUATION )

FINDINGS OF FACT

CONCLUSIONS OF LAW

DECISION AND ORDER

APPEARANCES

Ellis Hemler, Trustee of the Ponderosa UBO, Petitioner, appearing pro se.

Kurt Kremke, Weston County Assessor, Respondent, 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 pursuant to a Briefing Order (Locally Assessed Property) dated November 2, 2001. The appeal arises from a decision of the Weston County Board of Equalization (County Board) affirming the fair market value of Petitioner's residential property and assessed value as set by the Weston County Assessor at $53,730.00. Petitioner contends that the decision of the County Board was in error, that Petitioner's property tax assessment was too high and that the current tax law allows preferential treatment of some property owners, mainly agricultural, and discriminates against every person in Wyoming who pays residential property taxes.

On appeal, the State Board must consider the following issue:

Was the County Board decision affirming the Weston County Assessor's determination of value of the Petitioner's residential property for 2001 supported by substantial evidence, in accordance with 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 Procedure 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.

DISCUSSION

On April 20, 2001, the Weston County Assessor issued a tax assessment notice to Petitioner, Ponderosa UBO, for a residential home located at 225 Second Avenue, Newcastle, Wyoming (Lots 11, 12 and 13, Block 7, Forest Hill Park Addition). The Assessor assigned a value of $8,316 for the land, and $45,414 for the structure, for a total of $53,730. This was an increase from the value of the property set by the Assessor in 2000 of $47,105. The actual taxes assessed increased $47.20 from $336.37 in 2000 to $383.65 in 2001. Ellis Hemler, Trustee for the Ponderosa UBO, filed an appeal of his property tax assessment with the Weston County Board of Equalization alleging the following:

There is a conspiracy on the part of the Weston County Assessor, Weston County Commissioners and other county officials that constitutes discrimination against the taxpayers of Weston County, other than agricultural land owners.

In the past two years the county assessor has raised the taxes of the majority of the residential property owners by 100% to 300%. He has used figures from properties that sold at inflated prices, from properties located in other counties and even from South Dakota to justify the extortion of money from the senior citizens of Weston County.

Agricultural landowners' taxes are not raised. Four of the five Weston County Commissioners are "mega land owners" and the fifth commissioner is a "yes man."

Last year all three property owners who tried to protest their tax assessments were turned down by the Weston County Board, which is the same Kangaroo Court that turned them down this year.

The flag in the County Commissioner's office is an "admiralty flag," which means it is a military flag and stands for military law. Under military law, you are guilty until proven innocent. The hearing officer at the County Board hearing was a lawyer picked by the commission. He would not allow Petitioner to ask questions as to why there was a military flag rather than a civil law flag in a civil court office.

None of the comparable properties used by the assessor to value Petitioner's property are admissible because they are not near or adjacent to Petitioner's property. All of the homes are 20 to 35 years older than the subject property. All but one of the homes were built at a time when houses were being built for $10,000 to $20,000 new. Now these homes are overvalued from $60,000 to $80,000 in order to raise more taxes to pay for more schools and county buildings.

In the County Board hearing, Petitioner played a cassette tape of the sound of high speed trains going by his house, which they do 24 hours a day. Petitioner's house is located one block away from the railroad tracks. Petitioner's house is also one block away from a tank battery owned by Wyoming Refinery which contains thousands of barrels of volatile fluids.

Two-thirds of Petitioner's taxes goes to the Weston County School District even though Petitioner is 77 years old and has never had any children or grandchildren in the Weston County school system.

Raising taxes is all just a conspiracy by agricultural people to discriminate against the people of Weston County and save themselves money. The Assessor is married to the daughter of one of the largest land tycoons in Weston County.

All of these people belong to a secret organization that is not open to the general public. All of the county's public and private businesses are controlled by this secret society.

During the hearing before the County Board, the Assessor introduced a readjusted valuation sheet on Petitioner's property trying to get Petitioner to accept a lower valuation. This was attempted bribery by an elected official.

On the August 9, 2002, the Weston County Board issued an order with Findings of Facts and Conclusions of Law which affirmed the County Assessor's determination of the fair market value of the Petitioner's property at $53,730.

FINDINGS OF FACT

1. On April 20, 2001, the Weston County Assessor issued an assessment on 225 Second Avenue, (lots 11, 12 and 13, Block 7, Forest Hill Subdivision), Newcastle, Weston County, Wyoming. The 2001 market value was $53,730. The tax was $383.65. [County Board record].

2. Petitioner filed a timely Notice of Appeal with the County Board on May 14, 2001. [County Board record, pp. 1-2].

3. The County Board held a hearing on August 9, 2001.

4. Petitioner submitted an audio cassette tape of the sound of trains going by his property, which reportedly is one block away from the railroad tracks. [Petitioner's Exhibit "A" from County Board record].

5. At the beginning of the County Board hearing, Petitioner submitted as evidence a

"To Whom It May Concern" letter with addendum written and signed by him which asked a series of rhetorical questions of Mr. Kremke, the county assessor, regarding his authority to assess properties at from 100% to 300% of last year's value, his preferential treatment of agricultural landowners versus residential taxpayers of Weston County, and the alleged conflict of interest of the members of the County Board. Mr. Hemler testified that one acre of land contains 21,120 sq. feet. Five thousand square feet or one lot fits in one acre 4.224 times, or 4 1/4 times. Therefore if his lot is worth $4,159 that makes an acre worth $17,567.55. "This is what the Assessor is trying to pan off as fair market value." Mr. Hemler concluded by stating that he did not recognize the County Board hearing as being a legal proceeding so he was taking his petition along with the signatures of 109 taxpayers of Weston County to the District Court. [County Board record, Petitioner's Exhibit "B," pp. 44-45].

6. Petitioner had a neighbor, Mr. Russell Camp, testify that he had also gone through

the hearing process at both the county and state level and that he had not been treated fairly, that he had no respect for the process and that there was no due process. [County Board record, pp. 47].

7. There was no other substantive evidence of the value of Petitioner's property introduced into the record of the County Board hearing by Petitioner nor was there any evidence introduced to dispute the evidence of value introduced by the county assessor through his use of the CAMA system. [County Board record].

8. Kurt Kremke, the Weston County Assessor, introduced into the record data that he used from the CAMA system to determine the fair market value of the Petitioner's property. Those items included: a) List of nine comparable sales used in appraisal and the value correlation worksheet; b) Appraisal worksheets for all comparables plus Petitioner's house; c) Boeckh residential building valuation system data collection sheet to explain all codes used in appraisal worksheet; d) Pictures of all comparable sales; and; e) Map showing location of all comparable sales. The Assessor testified at the hearing, explaining the adjustments in value that he made for each comparable sale. [County Board Transcript, pp. 33 - 45, Respondent's Exhibits 1 - 15].

9. The County Board entered an Order dated August 21, 2001 affirming the fair market value set by the Assessor. [County Board Order].

10. The County Board's Order at paragraph 3 states the Weston County Assessor presented evidence of nine comparable sales within the vicinity of the subject property over the last two years. Disregarding the highest and lowest comparable sales, they found the adjusted average sales price for the remaining seven comparable sales to be $67,785, which is very close to the Assessor's correlated value for the subject property of $68,000.

[County Board Order, Paragraph # 3].

11. The County Board found that the Petitioner failed to present any evidence to indicate the Assessor erred in the use of the state-prescribed CAMA system. [County Board Order, Paragraph #5].

12. Any Discussion above or Conclusion of Law below which includes a finding of fact may also be considered a Finding of Fact and, therefore, is incorporated herein by this reference.

CONCLUSIONS OF LAW

13. Petitioner's Notice of Appeal was timely filed and the State Board has jurisdiction to determine this matter.

14. The State Board's inquiry is limited to whether the assessment of Petitioner's property, as affirmed by the County Board is: (a) arbitrary, capricious, 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.

15. Petitioner has not asserted, and our review of the record has not revealed any evidence that the actions of either the Assessor or the County Board were in excess of statutory jurisdiction or authority, or without observation of procedures required by law.

16. Therefore, we turn to the question of whether there is substantial evidence in the record that reasonably supports 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. Laramie County Board of Equalization v. State Board of Equalization, 915 P.2d 1184, 1189 (Wyo. 1996); Amax Coal v. State Board of Equalization, 819 P.2d 825 (Wyo. 1991); Sage Club, Inc. v. Employment Security Commission, 601 P.2d 1306, 1310 (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 the Wyoming Supreme Court has stated, substantial evidence "is more than a mere scintilla of evidence or suspicion of a fact to be established." Mountain Fuel Supply Company v. Public Service Commission, 662 P.2d 878, 882 (Wyo. 1983). "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the conclusions of the agency." Amax Coal v. State Board of Equalization, supra at 828.

17. The Wyoming Supreme Court has held that "an agency's action is arbitrary and capricious and must be reversed if any essential finding is not supported by substantial evidence." Amax Coal West, Inc. v. State Board of Equalization, 896 P.2d 1329, 1335 (Wyo. 1995), citing Majority of Working Interest Owners in Buck Draw Field Area v. Wyoming Oil and Gas Conservation Commission, 721 P.2d 1070, 1079 (Wyo. 1986), and Amax Coal v. State Board of Equalization, supra. "Substantial evidence is that quantum of relevant evidence which would be accepted by a reasonable mind as adequate to support the conclusion." Gray v. Wyoming State Board of Equalization, 896 P.2d 1347, 1348 (Wyo. 1995).

18. Article 15, Section 11 of the Wyoming Constitution provides that "[a]ll property. . . shall be uniformly assessed for taxation, and the legislature shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal."

19. All taxable property must be valued annually at fair market value. Wyo. Stat. 39-13-103(b)(ii). The Department of Revenue is to "prescribe by rule and regulation the appraisal methods and systems for determining fair market value using generally accepted appraisal standards." Wyo. Stat. 39-13-103(b)(ii) (emphasis added). Fair market value is defined as:

[T]he amount in cash, or terms reasonably equivalent to cash, A well informed buyer is justified in paying for a property and a well informed seller is justified in accepting, assuming neither party to the transaction is acting under undue compulsion, and assuming the property has been offered in the open market for a reasonable time . . .

Wyo. Stat. 39-11-101(a)(vi).

20. An assessor's valuation is presumed valid, accurate and correct, a presumption which survives until overturned by credible evidence. Basin Electric Power Coop. v. Dept. of Revenue, 970 P.2d 841, 851 (Wyo. 1998). A mere difference of opinion as to value is not sufficient to overturn this presumption. Id. The presumption is especially valid where, as here, the Assessor value the property according to the Department's Rules and Regulations which prescribe the use of the CAMA system in the assessment of real property.

21. Petitioner made serious allegations of preferential treatment of agricultural landowners at the expense of residential property owners, conflicts of interest by the assessor and members of the County Board, "secret organization" and conspiracy theories. None of these allegations were supported by substantial evidence, nor are they relevant to prove that the Assessor's methods of valuation were in error, or that the County Board decision was not based on substantial evidence. The constitutional and statutory duties of the State Board are limited to a consideration of property valuation issues. The State Board does not have authority to address the other issues raised by Petitioner.

22. The only allegations made by Petitioner in the record that remotely deal with the issue of the value of his property are: (a) The detrimental effect that railroad noise has on Petitioner's property, and, (b) Petitioner's statement that the comparable sales used by the Assessor are not close or adjacent to Petitioner's property, are significantly older than Petitioner's property and are inflated in value. The Assessor answered each of these allegations with substantial evidence in the record and the County Board accepted the Assessor's testimony.

23. The State Board finds that the County Board's decision was not (a) arbitrary, capricious, 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.

THIS SPACE INTENTIONALLY LEFT BLANK

ORDER

IT IS THEREFORE HEREBY ORDERED:

The decision of the Weston County Board of Equalization affirming the Assessor's 2001 valuation of Petitioner's property located at 225 Second Avenue, Newcastle, Wyoming is 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 10^th day of April, 2002.

STATE BOARD OF EQUALIZATION

Edmund J. Schmidt, Chairman

Roberta A. Coates, Vice-Chairman

Sylvia Lee Hackl, Member

ATTEST:

Wendy Soto, Executive Secretary