BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

WAL-MART STORES, INC. FROM )

A DECISION OF THE ALBANY COUNTY ) Docket No. 2002-143

BOARD OF EQUALIZATION -2002 )

PROPERTY VALUATION )

DECISION AND ORDER

APPEARANCES

Jason M. Tangeman, Anthony, Nicholas, Tangeman & Yates, LLC, for Wal-Mart Stores, Inc., (Petitioner).

James P. Schermetzler, Deputy Albany County and Prosecuting Attorney, for Deborah J. Nagel-Smith, Albany County Assessor, (Assessor).

DIGEST

This is an appeal from the Albany County Board of Equalization (County Board). The State Board of Equalization (State Board), comprised of Roberta A. Coates, Chairman, Alan B. Minier, Vice-Chairman and Tom Satterfield, Member, considered the hearing record and decision of the County Board, briefs filed pursuant to a Briefing Order (Locally Assessed Property) dated January 13, 2003, and oral arguments that were heard on April 21, 2003. Mr. Satterfield joined the Board on May 1, 2003, and has reviewed the transcript of oral argument. The Petitioner appealed a decision of the County Board affirming the Albany County Assessor’s corrected 2002 valuation of the real property and improvements of Wal-Mart Stores, Inc. located at 4308 Grand Avenue, Laramie, Albany County, Wyoming. The Assessor determined the value of the subject property to be $11,571,000. Petitioner asks the State Board to remand this case to the County Board with a directive that Petitioner’s property and improvements be assessed at a value of $8,500,000. We affirm the County Board.

PROCEEDINGS BEFORE THE COUNTY BOARD

The County Board conducted a hearing on September 12, 2002, with Hearing Officer James Wolfe presiding. The Petitioner called one witness, John R. Sherman. The Assessor called two witnesses, Deborah J. Smith and Cheri Anderle. Two volumes of documents were admitted into the record.

The County Board’s findings of fact addressed the expert testimony offered on behalf of the parties. In summary, the County Board found that the Assessor had employed an appropriate valuation method uniformly and fairly, and that the value reached by the Assessor correctly included the value of a security system placed in the building. [County Board Record, pp. 369-372].

The County Board concluded, as a matter of law, that the Assessor employed an authorized Computer Assisted Mass Appraisal (CAMA) method, and that the Petitioner failed to establish that the method was not a rational method, equally applied and resulting in essential fairness and a reasonable estimate of fair market value. The County Board also found that the Petitioner did not show that the value offered by its expert was more accurate or dependable than that of the Assessor. [County Board Record, pp. 369-372].

JURISDICTION

The State Board is required to “hear appeals from county boards of equalization.” Wyo. Stat. Ann. § 39-11-102.1(c). A timely appeal from the County Board decision was filed with the State Board. Wyoming State Board of Equalization Rules, Chapter 3, §2.

STANDARD OF REVIEW

When the State Board hears appeals from a county board, it acts as an intermediate level of appellate review. Laramie County Board of Equalization v. Wyoming State Board of Equalization, 915 P.2d 1184, 1188 (Wyo. 1996); Union Pacific Railroad Company v. Wyoming State Board of Equalization, 802 P.2d 856, 859 (Wyo. 1990). In its appellate capacity, the State Board treats the county board as the finder of fact. Id. In contrast, the State Board acts as the finder of fact when it hears contested cases on appeal from final decisions of the Wyoming Department of Revenue. Wyo. Stat. Ann. § 39-11-102.1(c). This sharp distinction in roles is reflected in the State Board Rules governing the two different types of proceedings. Compare Wyoming State Board of Equalization Rules, Chapter 2 and Wyoming State Board of Equalization Rules, Chapter 3. Statutory language first adopted in 1995, when the Board of Equalization and the Department of Revenue were reorganized into separate entities, does not express the distinction between the State Board’s appellate and de novo capacities with the same clarity as our long-standing Rules. 1995 Wyo. Sess. Laws, Chapter 209, Section 1, §39-1-304(a).

By Rule, the State Board’s standards for review of a county board’s decision are nearly identical to the Wyoming Administrative Procedure Act standards which a district court must apply to hold unlawful and set aside agency action, findings of fact, and conclusions of law. Wyo. Stat. Ann. §16-3-114(c)(ii). However, unlike a district court, the Board will not rule on claims that a county board has acted “[c]ontrary to constitutional right, power, privilege or immunity.” Wyo. Stat. Ann. §16-1-114(c)(ii)(B). The State Board’s review is limited to a determination of whether the county board action is:

(a) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(b) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(d) Unsupported by substantial evidence.

Wyoming State Board of Equalization Rules, Chapter 3, § 9.

Since the State Board Rules are patterned on the judicial review provision of the Wyoming Administrative Procedure Act, we look to precedent under Wyo. Stat. Ann. §16-3-114(c) for guidance. For example, we must apply this substantial evidence standard:

Our task is to examine the entire record to determine if substantial evidence exists to support the [county board’s] findings. We will not substitute our judgment for that of the [county board] if [its] decision is supported by substantial evidence. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions.

Clark v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 934 P.2d 1269, 1272 (Wyo. 1997).

ISSUES

The Petitioner initially identified six defects in the County Board’s decision. [Petitioner’s Notice of Appeal, pp. 4-5].

In its Opening Brief, the Petitioner restated these six issues into three:

1. Whether the Albany County Board of Equalization’s (CBOE) finding that the County Assessor’s valuation of “fair market value” lacked statutory right, and whether it was supported by substantial evidence and was not arbitrary, capricious, an abuse of discretion or not otherwise in accordance with law?

2. Whether the figures and characteristics employed by the Albany County Assessor in the [Computer Assisted Mass Appraisal] model for the appraisal of the subject property were supported by substantial evidence and were not arbitrary, capricious, an abuse of discretion or not otherwise in accordance with law?

3. Whether the finding of the CBOE that the security system was a fixture and not personal property was supported by substantial evidence and was not arbitrary, capricious, an abuse of discretion or not otherwise in accordance with law?

[Petitioner’s Opening Brief, p. iv].

The County Board’s Brief did not materially disagree with these three issues. [County Board’s Opening Brief, p. 5].

We have organized our review of the County Board decision around these three restated issues.

FACTS PRESENTED TO THE COUNTY BOARD

1. Petitioner owns the Wal-Mart Supercenter (Wal-Mart) located at 4308 Grand Avenue, Laramie, Albany County, Wyoming. [County Board Record, p. 36].

2. The Assessor issued an Assessment Notice for Petitioner’s property on April 25, 2002. [County Board Record, p. 15]. In response to an appeal received May 9, 2002, the Assessor initiated a review of the property. [County Board Record, p. 35]. A Revised Assessment Notice dated June 6, 2002, included these values:

Commercial Unplatted Land $ 191,300

Commercial Building Unplatted $11,379,700

Commercial Personal Property $ 2,607,741

[County Board Record, p. 36].

3. Petitioner appealed the Assessor’s revised valuation to the County Board on June 13, 2002. [County Board Record, p. 44]. The appeal referred to the value of the real estate, but not to personal property. [County Board Record, p. 44]. A hearing on the appeal was held by the County Board on September 12, 2002. [Transcript, County Board Record, pp. 116-356].

4. At the County Board hearing, Petitioner called one witness, John Sherman, an experienced Wyoming-certified appraiser. [Transcript, County Board Record, pp. 146-151]. Sherman testified to a fee appraisal he had prepared for the subject property. [Supplemental County Board Record, pp. 392-523]. The words “fee appraisal” mean appraisal of properties one at a time, for pay. Glossary for Property Appraisal and Assessment, International Association of Assessing Officers, 1997. Sherman employed three approaches to reach his appraisal: the cost approach, the direct sales approach, and the income approach. He reconciled the results of these approaches to reach an estimate of value. [Supplemental County Board Record, pp. 443-444]. The appraisal states that, “[t]he intended use of this appraisal is to aid in, or support decisions related to the subject property as it relates to property tax liability.” [Supplemental County Board Record, p. 404].

5. In Sherman’s opinion, the market value of Petitioner’s real property and improvements on July 28, 2002, was $8,500,000. [Transcript, County Board Record, p. 152].

6. Sherman excluded the building’s security system from his appraised value on the grounds that the security system was personal property. He classified the security system as personal property for the reason that it can be detached if the building is resold, and often is. [Transcript, County Board Record, pp. 152, 172-173; Supplemental County Board Record, p. 393]. The value of the security system was $840,500. [Transcript, County Board Record, p. 231].

7. Sherman testified that the valuation date for his opinion was July 28, 2002, which is the date Sherman first inspected Petitioner’s property. [Transcript, County Board Record, pp. 232-233; County Board Record, p. 393]. When asked if his opinion was the same for December 31, 2001, Sherman testified that he “generally” felt that it was. [Transcript, County Board Record, p. 233].

8. To prepare the income approach for his valuation opinion, Sherman relied on properties outside Albany County and the state of Wyoming, properties which the Assessor was not able to use for her assessment of the property. [Transcript, County Board Record, pp. 227-228, 238; Supplemental County Board Record pp. 454-464]. In addition, several of the comparable properties used by the appraiser for rents involved leases entered into after December 31, 2001. [Transcript, County Board Record, pp. 221-222; Supplemental County Board Record, p. 470].

9. Sherman acknowledged that if one of the properties he used as a comparable sale, the 1997 sale of the Gateway Plaza in Laramie (the only Laramie sale he used in his direct sales comparison), had been resold in 1999 the sale could have affected his appraisal. [Transcript, County Board Record, pp. 203-204]. That property resold in August, 1999 for approximately $12 per square foot more than the amount reflected in Petitioner’s appraisal. [Transcript, County Board Record, pp. 327-328]. Sherman also acknowledged that he could not have completed his direct sales comparison approach using only similarly situated properties in Albany County, Wyoming. [Transcript, County Board Record, pp. 226-227].

10. Sherman used the Marshall & Swift Cost Estimator system to compute a replacement cost new, less depreciation for the building. [Transcript, County Board Record, pp. 168-172]. Based on the Marshall & Swift definitions, he rated the quality of construction as average, a ”2", and the condition of the property when he inspected it as good. [Transcript, County Board Record, pp. 170, 229]. Sherman testified that this was a fairly plain building, which he classified as a discount warehouse. [Transcript, County Board Record, pp. 170-171]. Sherman also observed that the size of the store implied a cheaper construction cost in terms of value per square foot. [Transcript, County Board Record, p. 169].

11. Sherman acknowledged that he was not familiar with mass appraisal methodology used by the county assessor, and is not an expert in that field. [Transcript, County Board Record, pp. 183, 228].

12. The Assessor uses a mass appraisal system to value over 14,000 parcels in Albany County in a single tax year. [Transcript, County Board Record, pp. 236, 256]. The words “mass appraisal” mean the process of valuing a group of properties as of a given date, using standard methods, employing common data, and allowing for statistical testing. Glossary for Property Appraisal and Assessment, International Association of Assessing Officers, 1997.

13. The Assessor used the CAMA system to value commercial properties, including Petitioner’s real property and improvements. CAMA relies on a replacement cost new, less depreciation, approach. [Transcript, County Board Record, pp. 236-237]. The Assessor used CAMA to ensure fair and equitable establishment of value and to ensure that like properties are appraised using the same method. [Transcript, County Board Record, p. 238].

14. The information used for the valuation of Petitioner’s property was collected by an employee of the Assessor’s office, Cheri Anderle, who held a permanent certification as a Property Tax Appraiser from the Department of Revenue and had taken several appraisal courses, including one on commercial valuation. [Transcript, County Board Record, pp. 255-256, 285; County Board Record, p. 5].

15. Anderle inspected and measured Petitioner’s property. [Transcript, County Board Record, p. 258, 303]. The Assessor’s office then arrived at a grade for the quality of construction, based on her inspection, on the definitions set forth in the CAMA manual, on discussions with others in her office, and on discussions with Wal-Mart representatives. [Transcript, County Board Record, pp. 264-265, 268-270].

16. The Assessor’s office assigned a “B -“ quality of construction grade based on factors which distinguished the building from a large area, warehouse type of store like Sam’s Club, and used that grade of construction for the CAMA calculations. The factors included: 1) partitioned areas for separate businesses, including a pharmacy, a hair salon, optical sales, a portrait studio, a bakery, and a deli; 2) areas with lowered ceilings, such as the restaurant area; 3) storage and stockroom enclosures; 4) office enclosures for security, management, and customer service; 5) a bank with a separate cash counting room; 6) a meat handling and preparation area; 7) defined areas finished to a higher grade than in warehouse stores, such as carpeting rather than tile in the clothing area, painted finish on open beams, and goods displayed on shelving rather than on stack pallets. [Transcript, County Board Record, pp. 264-265, 270-273, 312-315].

17. Anderle used the definitions provided in the Marshall & Swift Cost Estimator only to check the CAMA system’s values. [Transcript, County Board Record, pp. 279-281].

18. The Assessor testified that her office exclusively uses CAMA to appraise commercial property. [Transcript, County Board Record. p. 237]. CAMA does not have modules for any method other than the replacement cost new, less depreciation approach. [Transcript, County Board Record, p. 237]. The Assessor’s office is also subject to practical constraints, such as the ability to gather information outside the county and manpower limitations, which preclude the preparation of fee appraisals for commercial properties. [Transcript, County Board Record, p. 238].

19. The process of assessing personal property begins with the Assessor generating a form “ATD 25” which is sent out to businesses, on which taxpayers report their personal property connected with the business that is being assessed. [Transcript, County Board Record, pp. 261-263].

20. The Petitioner did not provide any evidence showing that it included the security system as personal property on its “ATD 25” form. [Transcript, County Board Record, pp. 261-263]. When asked during oral argument before the State Board whether or not the security system was included by Petitioner as personal property, Petitioner’s attorney stated that he had consulted with Petitioner prior to the hearing, but had not been able to verify that the security system had been included on the ATD 25 form. [Transcript of Oral Argument, pp. 28-29]. Counsel further acknowledged that the issue had come up early. [Transcript of Oral Argument, p. 30].

21. The Assessor valued the security system as real property for two reasons. Anderle did not find a definition for the security system as personal property in CAMA or in Marshall & Swift. Anderle also observed that the security system attached to the building with wires and components that were built into the building. [Transcript, County Board Record, p. 319].

22. On cross examination, the Assessor testified to her view that a distinction may be drawn between a mass appraisal of fair market value for taxation purposes, and a fee appraisal ordered by a buyer, seller, or lender for such purposes as an estate appraisal or loan. [Transcript, County Board Record, pp. 248-252]. She said that different methods may be appropriate for somewhat different purposes. [Transcript, County Board Record, p. 252]. At the same time, when challenged on cross examination by Petitioner’s counsel, she denied “that the CAMA system does not assess fair market value for commercial property.” [Transcript, County Board Record, p. 247].

23. Similarly, Anderle expressed her personal belief that using replacement cost new, less depreciation will not necessarily give a true value of what someone may pay for a parcel, but agreed that it is the value the Assessor relied on because it is the only value the Assessor’s office can make uniform. [Transcript, County Board Record, pp. 334-335]. She was uncertain about whether a fee appraisal would more closely equate to fair market value. [Transcript, County Board Record, p. 335].

24. The County Board denied Petitioner’s protest and affirmed the Assessor’s corrected valuation of Petitioner’s property. The County Board issued its decision on September 23, 2002. [County Board Record, pp. 369-372].

25. Petitioner appealed to the State Board by Notice of Appeal filed October 23, 2002. [County Board Record pp. 373-378].

26. Certain additional aspects of the record are addressed in the context of the specific claims made by the Petitioner.

DISCUSSION OF APPLICABLE LAW AND PETITIONER’S ISSUES

27. Article 15, Section 11 of the Wyoming Constitution requires all property “be uniformly assessed for taxation, and the legislature shall prescribe such regulations as shall secure a just valuation of taxation of all property, real and personal.”

Early on, Justice Blume recognized a truth inherent in the area of property valuation: ‘There is no such thing as absolute value. A stone cannot be other than a stone, but one man may give a different valuation to a piece of land than another.’ Bunten v. Rock Springs Grazing Ass’n, 29 Wyo. 461, 475, 215 P. 244, 248 (1923). Accordingly, this court has consistently interpreted Wyo. Const. Art. 15, § 11 to require ‘only a rational method [of appraisal], equally applied to all property which results in essential fairness.’

Basin Electric Power Coop. v. Dept. of Revenue, 970 P.2d 841, 857 (Wyo.1998) quoting: Holly Sugar Corp. v. State Board of Equalization, 839 P.2d 959, 964 (Wyo.1992).

28. Broken into its component parts, the constitutional standard requires (1) a rational method; (2) equally applied to all property; and (3) essential fairness. It is the burden of one challenging an assessment to prove by a preponderance of the evidence that at least one of these elements has not been fulfilled. Basin Electric Power Corp., 970 P.2d at 852.

29. All property must be valued annually at fair market value. Wyo. Stat. Ann. §39-13-103(b)(ii). Further, all taxable property must be valued and assessed for taxation in the name of the owner of the property on January 1. Wyo. Stat. Ann. §39-13-103(b)(i)(A).

30. Fair market value is defined as:

The 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 reasonably time.

Wyo. Stat. Ann. § 39-11-101(a)(vi).

31. The legislature, in turn, has required the Department of Revenue (Department) to “prescribe by rule and regulation the appraisal methods and systems for determining fair market value using generally accepted appraisal standards,” Wyo. Stat. Ann. § 39-13-103(b)(ii), and required assessors to “[f]aithfully and diligently follow and apply” those rules for the appraisal and assessment of all taxable property. Wyo. Stat. Ann. § 18-3-204(a)(ix).

32. The Department has promulgated rules prescribing the methods for valuing property. The acceptable methods include a sales comparison approach, a cost approach, an income or capitalized earning approach, and the CAMA system. Wyoming Department of Revenue Rules, Chapter 9, § 6 (a), (b), (c), and (d).

33. An Assessor’s valuation is presumed valid, accurate, and correct. This presumption survives until overturned by credible evidence. Teton Valley Ranch v. State Board of Equalization, 735 P.2d 107, 113 (Wyo. 1987). A mere difference of opinion as to value is not sufficient to overcome the presumption. J. Ray McDermott & Co. v. Hudson, 370 P.2d 364, 370 (Wyo. 1962). The presumption is especially valid where the Assessor valued the property according to the Department’s Rules and Regulations, rules which provide for the use of the CAMA system in the assessment of real property. Wyoming Department of Revenue Rules, Chapter 9 § 6(b), (d).

34. The Wyoming Supreme Court has recognized the validity of valuations derived from the CAMA system. Gray v. Wyoming State Board of Equalization, 896. P.2d 1347 (Wyo. 1995). In fact, the Wyoming Supreme Court rejected the use of actual sales price for properties in favor of the value established by the CAMA system because of the equality and uniformity derived by its use. Id. at 1351.

35. Each of the three issues raised by the Petitioner turn on the question of whether or not there is substantial evidence in the record that reasonably supports the County Board decision. In determining whether or not there is substantial evidence in the record, the State Board will not substitute its 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, 1188-1189; Holly Sugar Corp. v. Wyoming State Board of Equalization, 839 P.2d 959, (Wyo. 1992); Amax Coal v. State Board of Equalization, 819 P.2d 825 (Wyo. 1991); Sage Club, Inc. Employment Sec. Comm’n., 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. The Wyoming Supreme Court has stated, “[s]ubstantial evidence is a term of art best described as relevant evidence that a reasonable mind can accept as adequate support for an agency’s conclusion. Sidwell v. State Workers’ Compensation Div., 977 P.2d 60, 63 (Wyo. 1999).

A. Whether CAMA arrived at fair market value

36. Petitioner first contends that the Assessor admitted the CAMA system did not arrive at a “fair market value” for Petitioner’s property and improvements. Since use of the CAMA system is prescribed by the Rules of the Department of Revenue, there is no serious contention that the Assessor’s action was in any way arbitrary, or otherwise contrary to law. This issue, as well as the other two that have been presented by the Petitioner, therefore turns on whether the County Board’s decision is supported by substantial evidence.

37. Petitioner relies heavily on the cross-examination of the Assessor and her employee, which Petitioner characterizes as a concession that CAMA does not reach fair market value. We have reviewed the record as well as the exchanges between Petitioner’s counsel and the Assessor, and Petitioner’s counsel and Anderle. Supra., ¶¶ 22 and 23. We conclude the evidence does not support Petitioner’s assertion. The Assessor did reach an opinion of the fair market value for Petitioner’s property and improvements. Read as a whole, the evidence only highlights the differences between what a fee appraiser does and what an assessor does to arrive at an opinion of the fair market value for a property. We also note that Mr. Sherman’s fee appraisal was expressly prepared for the purpose of addressing “property tax liability”, supra., ¶4, so that the Assessor and Mr. Sherman were both considering fair market value in the same context.

38. The County Board was justified in concluding that Petitioner did not demonstrate that Sherman’s fee appraisal was “more accurate or dependable than that offered by the Assessor.” [County Board Record p. 371, Conclusions of Law, ¶4]. Sherman did not hold himself out as being familiar with mass appraisal or the constraints that an assessor must face in using a mass appraisal method. Sherman therefore could mount no effective criticism of the Assessor’s use of CAMA, and relied merely on the fact that he had reached a different conclusion using the method he preferred. Further, Sherman acknowledged that using similarly situated properties in Albany County, Wyoming, he could not have completed his appraisal. Supra., ¶ 11. Sherman also valued the real property and improvements as of July 28, 2002, supra., ¶ 6, rather than January 1, the statutorily prescribed date to determine the fair market value of property. Wyo. Stat. Ann. §39-13-103(b)(i)(A). It is also clear that Sherman’s information as to one sale of significant value was outdated. Supra., ¶ 8.

39. The County Board was likewise justified in concluding that the Assessor’s valuation was reached by a rational method of appraisal, equally applied to all like property which resulted in essential fairness and a reasonable estimate of the fair market value of the subject property. [County Board Record p. 371, Conclusions of Law, ¶4]. The Assessor testified both as to the use of the CAMA method, and to the reasons why her office did not prepare a fee appraisal of its own for Petitioner’s commercial property. Supra., ¶17. Sherman and the Assessor used different definitions in classifying the building’s quality of construction. Sherman, using the Marshall Swift definitions, assigned a “2" to the property and Assessor, using the CAMA manual definitions, assigned a “B-“ to the property. Supra., ¶¶ 9, 15. Our review of the record leads us to conclude that the Anderle was somewhat more thoughtful in the application of the quality of construction definitions than Sherman was. Supra., ¶¶ 10, 15, 16. Finally, the information on actual costs provided by the Petitioner to Petitioner’s appraiser was different than the information provided to the Assessor. [Transcript, County Board Record, pp. 276-277, 295-296].

40. We conclude that Petitioner’s first claim reflects a difference of opinion that has resulted from the use of two different methods. A mere difference of opinion is not enough to overcome the presumption in favor of the Assessor’s valuation. J. Ray McDermott & Co., 370 P.2d at 370. As important, the record demonstrates the existence of relevant evidence that a reasonable mind can accept as adequate support for the County Board’s conclusion. The record is therefore supported by substantial evidence.

B. The quality of construction of Petitioner’s building

41. Petitioner’s second argument is that the figures and characteristics entered into the CAMA model by the Assessor to reach the assessment figure were inaccurate. The Petitioner’s arguments turn on the quality of construction, and attacks on the Assessor’s treatment of the smaller stores within the large facility. [Petitioner’s Opening Brief, pp. 14-21].

42. Petitioner contends that the proper grade for the quality of construction of the commercial property should have been a “C” and not a “B-.” To address each of Petitioner’s main points:

1) Although the Assessor had never graded the quality of original construction for a discount department store as defined by CAMA, she was properly qualified to grade such buildings. Supra at ¶ 14.

2) The definitions set forth in the CAMA manual were relied on by the Assessor in grading the building, supra at ¶ 15, and evidence supporting the classification of the Wal-Mart as above average construction for a discount or market store was presented at the County Board hearing. Supra at ¶ 16.

3) Petitioner contends that the Assessor was incorrect in determining the eyeglass center was a “medical center.” This contention based on the definitions provided by the Marshall & Swift Cost Estimator. However, the Assessor used the CAMA system and relied on the definitions set forth in its manual to value Petitioner’s property. Supra at ¶ 15. The Marshall & Swift Cost Estimator was only used by the Assessor to double check the CAMA system’s values. [County Board Record, p. 164-165]. The CAMA system is both an accepted method by which to assess property, and a prescribed method. Wyoming Department of Revenue Rules, Chapter 9 § 6(b), (d). The County Board understandably accepted the Assessor’s approach.

43. Sherman’s testimony was heavily oriented to the premise that the building was simply a big box, discount warehouse type of store. Supra., ¶10. The facts observed by the Assessor’s employee on inspection of the building conflict with this assessment. Supra., ¶16. Anderle’s testimony provided a sufficient basis for the County Board to doubt Sherman’s conclusions.

44. From our review of the record, we conclude that the Petitioner did not offer evidence sufficient to overcome the presumption in favor of the Assessor’s valuation. There is also substantial evidence supporting the figures and characteristics used by the Assessor and entered into the CAMA system to reach the assessed value.

C. The security system

45. Petitioner’s third contention is that the Assessor erred in classifying Petitioner’s security system as being affixed to the real estate, rather than personal property. The only testimony of Sherman on this issue was essentially an argument based on Sherman’s view of a general principle. Supra., ¶6. Sherman’s testimony was not supported by reference to the personal property reported by the Petitioner to the Assessor on form ATD 25, or by enquiry to representatives or employees of the Petitioner. This alone would justify County Board in discounting Sherman’s testimony.

46. During oral argument, Petitioner’s counsel conceded that the security system ought to be taxed as either part of the real estate, or as personal property. [Transcript of Oral Argument, p. 31]. We agree. This being so, Petitioner bore some responsibility for assuring that the system was reported to the Assessor with sufficient clarity to assure that a timely and correct classification of the property could be made. In fact, the Petitioner failed to clearly identify the security system on the ATD 25 form used to report personal property for assessment. It is reasonable to expect that an item valued at $840,500 would be specifically identified on Petitioner’s report of personal property, but there is no such listing, even though there are listings for items valued as little as $13 after adjustments. [County Board Record, pp. 48-50]. The absence of a specific listing for the security system independently supports an inference that the security system was not included in the personal property report, and would therefore have escaped taxation if it were not included in the value of the commercial real estate.

47. Part of the Assessor’s reason for classifying the security system as real estate was her observation of the manner in which the system was integrated into the construction of the building. Supra., ¶21. In determining when personal property becomes a fixture, one is guided by the following test:

“It has been said on abundant authority that, generally speaking, the proper criterion of an irremovable fixture consists in the united application of three tests, viz:

‘1st. Real or constructive annexation of the article in question to the realty; 2nd. Appropriate or adaptation to the use or purpose of that part of the realty with which it is connected; and 3rd. The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention being inferred form the nature the article affixed, the relation and situation of the party making the annexation and policy of law in relation thereto, the structure and mode of annexation and the purpose or use of which the annexation has been made…’ [citations.]***.” Holland Furnace Co. V. Bird, 45 Wyo. 471, 2 P2d 825, 827-828 (1933)

Wyoming State Farm Loan Bd. v. FCSCC, 759 P.2d 1230, 1234 (Wyo. 1988); Wagner v. First Wyo. Bank of N.A. Laramie, 784 P.2d 224, 227 (Wyo. 1989).

48. While Petitioner’s witness testified that in most cases a security system could be removed without damaging the property, supra., ¶ 10, the Assessor presented evidence establishing that Petitioner’s security system is very attached to the building with wires and components that are built into the building, supra., ¶ 21. Substantial evidence of annexation was presented to the County Board.

49. No evidence was presented to the County Board that the security system was not appropriate or adapted to the use or purpose of the realty, to provide security for the Wal-Mart Superstore.

50. The most important factor is the intention of the person making the annexation. Holland Furnace Co. v. Bird, 21 P.2d 825, 827-828 (Wyo. 1933). The Wyoming Supreme Court follows a majority of jurisdictions in placing the most emphasis on the intention of the person making the annexation. Wyoming State Farm Loan Bd. v. FCSCC, supra. 759 P.2d at 1234. Because Petitioner did not establish that the security system was reported as personal property, the County Board could infer that Petitioner intended the property to be a fixture.

51. There is substantial evidence in the record to support to support the County Board’s acceptance of the Assessor’s valuation of Petitioner’s security system as part of Petitioner’s real property and improvements. We also conclude that the Petitioner did not offer evidence sufficient to overcome the presumption in favor of the Assessor’s valuation.

52. Based on the record before us, we conclude there is substantial evidence to support the decision of the County Board on all three points. We decline to substitute our judgment of the facts for that of the County Board. We likewise conclude that on all three points the Petitioner did not overcome the presumption in favor of the Assessor’s valuation.

53. The decision of the County Board affirming the Assessor’s corrected value of Petitioner’s property was supported by substantial evidence, was in accordance with procedures required by law, and was neither arbitrary, capricious nor inconsistent with law.

THIS SPACE INTENTIONALLY LEFT BLANK

ORDER

IT IS THEREFORE HEREBY ORDERED that the Albany County Board of Equalization Order denying the Petitioner’s protest and affirming the 2002 assessment of Petitioner’s property located at 4308 Grand Avenue, Laramie, Albany County, Wyoming is affirmed.

Pursuant to Wyo. Stat. Ann. § 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 at the appropriate district court by filing a petition for review within 30 days of the date of this decision.

Dated this 21^st day of July, 2003

STATE BOARD OF EQUALIZATION

________________________________

Roberta A. Coates, Chairman

________________________________

Alan B. Minier, Vice-Chairman

________________________________

Thomas R. Satterfield

ATTEST:

_________________________________

Wendy J. Soto, Executive Secretary