BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF                       )

GARY AND JANICE ESCHEDOR FROM                 )

A DECISION OF THE CROOK COUNTY                   )                   Docket Nos. 2001-161

BOARD OF EQUALIZATION - 2001                            )

PROPERTY VALUATION                                             )

FINDINGS OF FACT

APPEARANCES

Gary and Janice Eschedor, 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 October 5, 2001. 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 agriculture 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

The Petitioners filed an appeal with the County Board challenging the 2001 estimate of fair market value established by the Assessor for property owned by Petitioners. Petitioners argue the Assessor should not have assigned a fair market value to the property because it is agriculture 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 prior years and its use has not changed; (3) Petitioners allow others to use a portion of the land to drag, harrow, swath, and bale hay and grass.

The Assessor valued Petitioners' property as non-agricultural because: (1) the lots are smaller than 35 to 40 acres, (2) the definition of agricultural use, as defined by Wyo. Stat. 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." 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 August 8, 2001. [ Record pp. 16-20]. The Notice of Appeal was filed September 4, 2001, within thirty days of the County Board Order.

2. Petitioners filed a letter on October 10 that they wished to rely on their Notice of Appeal as an Opening Brief. The Assessor filed a response letter on December 7, 2001. Petitioners did not file a reply brief. [State Board File.]

3. Petitioners' property is not part of a legally platted subdivision and agricultural use is allowed. The property consists of approximately 22 or 23 acres of hay ground on an approximately 50 acre tract. [County Board Order Denying Protest paragraph 5 and Tape Recording of Hearing].

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

5. Petitioners harvested sixty (60) bales of hay in the 2001 year through a sharecropping arrangement. [County Board Order Denying Protest paragraph 4 and Tape Recording of Hearing]. Petitioners were not able to raise hay in prior years due to a drought, and neighbors using the land. Petitioners did fence the property and erect a pole barn (which remains empty), and intend to plant trees and build a residence. [Tape Recording of Hearing].

6. 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. [Tape Recording of Hearing].

7. Any Conclusions of Law set forth below which may include any Finding of Fact is 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. 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.

10. The applicable statutes provide in relevant part:

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

"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.

11. 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 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.

12. Prior State Board 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 Petitioners receiving a monetary profit. The State Board questions whether the current and historical use of the property is truly agricultural. As the Department of Revenue Rules indicate at Chapter 10, Section 3 (C), just because certain activities 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 County Board that the evidence in the record does not support agriculture use.

Land is not agricultural if it is used for the farmstead, 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 (Wyo. State Board of Equalization). If a 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 (Wyo. State Board of Equalization).

13. The grass and hay production does not qualify the land for agriculture classification. If the Petitioners had demonstrated that monies were made from the production commensurate with the ability of the land to produce hay, the State Board 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 (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, she had sprayed for leafy spurge and had improved ditch irrigation. Such activities demonstrated the land was being used and improved with an expectation of achieving monetary gain.

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.

14. 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 during that year govern the value of the property. Wyo. Stat. 39-13-103. The Assessor did not err by changing the classification of the land. Clearly, the Petitioners failed to demonstrate the land meets the current definition of agriculture land.

15. 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 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.

16. 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).

17. 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.

18. The Petitioners offered evidence that approximately 60 bales of hay were harvested from the property. There was no evidence this use is the highest or even an anticipated average agricultural use for this land. This "use" does not comply with the definition of agricultural property found in Wyo. Stat. 39-13-101.

19. The 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 Petitioners' standpoint and the profit be measured considering the productive capability of the property. The record is devoid of evidence of monetary profit either past or future as required by statute.

20. 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 28^th day of January, 2002.

STATE BOARD OF EQUALIZATION

Edmund J. Schmidt, Chairman

Roberta A. Coates, Vice-Chairman

Sylvia Lee Hackl, Member

ATTEST:

Wendy Soto, Executive Secretary