BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF             )

WELCH LAND & CATTLE COMPANY FROM )

A DECISION OF THE PLATTE COUNTY          )         Docket Nos. 2002-79

BOARD OF EQUALIZATION - 2002                  ) 

PROPERTY VALUATION                                  )

                                                     FINDINGS OF FACT

CONCLUSIONS OF LAW

DECISION AND ORDER

APPEARANCES

Welch Land & Cattle Company, Petitioner, appearing by and through its owner, Patricia Thompson, and Edward Buchanan of Sawyer & Warren, P.C., having filed Petitioner’s Request to Rely on Letter of Appeal and Attached Written Statement as Opening Brief.

Lynda Chaffin, Platte County Assessor, appearing pro-se, and Eric Alden, Platte County and Prosecuting Attorney, having filed a letter of reply.

DIGEST

This matter was considered by the State Board of Equalization (State Board) consisting of Edmund J. Schmidt, Chairman, and Roberta A. Coates, Vice-Chairman, on written information and argument pursuant to a Briefing Order (Locally Assessed Property), dated August 26, 2002. It arises from a decision by the Platte County Board of Equalization (County Board) concerning the 2002 valuation of property owned by Petitioner located in Platte County, Wyoming. The issues are:

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

II. Was there substantial evidence or was it arbitrary, capricious, or inconsistent with law for the County Board to affirm the value of the land as assigned by the Assessor when two lots had trees that had burnt?

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 Petitioner filed an appeal with the County Board challenging the 2002 fair market value established by the Assessor for property owned by Petitioner. Petitioner argues the Assessor should not have assigned a fair market value to the property because it is agriculture property. Petitioner asserts the Assessor’s classification and assessment of the property as non-agricultural land is incorrect because the property is intended to be utilized as agricultural land and should be assessed as such. Another issue raised by Petitioner is whether the fair market value should be adjusted due to a fire.

We find the Assessor properly valued Petitioner’s property as non-agricultural because the lots are not being used for agricultural purposes. Petitioner failed to present sufficient evidence that the value of the lots decreased due to the trees burning.

FINDINGS OF FACT

1.       The County Board Decision is dated July 2, 2002. [County Board Record p. 44]. The Notice of Appeal was filed July 31, 2002, within thirty days of the County Board Decision. [State Board File].

2.       Petitioner filed a letter on September 23, 2002, that it wished to rely on its Notice of Appeal as an Opening Brief. The County Attorney filed a letter on November 15, 2002, declining to file a formal brief. Petitioner did not file a reply brief. [State Board File.]

3.       Petitioner is the owner of four lots located in Platte County, Wyoming described as:

OTR Ranch Survey Tracts 15, 16, 32, and 33, located in Township 27, Range 69, Section 11, Platte County, Wyoming.

The property consists of 143.66 total acres and is four (4) tracts of a platted development. [County Board Record, p. 00028].

4. During 2001 a lightening caused fire burned many trees on two of the tracts, tracts 15 and 16. [County Board Record, pp. 00001, 0007, 00012].

5. Petitioner introduced no evidence that the burnt trees effected the value of the lots.

6. The lots had no developed water or wells until after the assessment date when Petitioner applied for a well permit and installed a well. [County Board Record, p. 00028]. The lack of water indicates the land was not being used for agricultural purposes because there was no water for the proposed cattle.

7. The 35 acre lots have been developed from what was historically a ranch. [County Board Tape Recording].

8. Petitioner anticipates using the lots for grazing eight head of cattle for three or four months in the future. However, Petitioner was not grazing cattle in 2002. [County Board Tape Recording].

9. The Assessor valued the lots as non-agricultural and used comparative sales to determine value. The Assessor assigned the lowest value class to the Petitioner’s lots and compared all the lots to the sales value of other lots in the development the Assessor considered the least desirable. [County Board Record, p. 00043 and Exhibit 5, p. N].

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

CONCLUSIONS OF LAW

11.     Petitioner’s notice of appeal was timely filed and the State Board has jurisdiction to determine this matter.

12.     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).

13.     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.

14. 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.

15. 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.

16. 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.

17. 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 that Petitioner used the land for agricultural purposes. We agree with the County Board that the evidence in the record does not support agriculture use.

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).

18. 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. Clearly, the Petitioner failed to demonstrate the land meets the current definition of agriculture land in effect for the 2002 valuation.

19.     The Petitioner failed to present evidence that a monetary profit is anticipated from the use of the land. The Department of Revenue Rule, Chapter 10, Section 3(a)(ii), does not require a return of capital be realized, only that the profit be viewed from Petitioner’ standpoint and the profit be measured considering the productive capability of the property. The record is devoid of evidence of monetary profit as required by statute.

20.     Once we determined the land is not to be classified as agricultural, our inquiry is limited to whether the 2002 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.

21. All taxable property must be valued annually at fair market value. Wyo. Stat. §39-13-103(b)(ii). 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).

22.     Article 15, Section 11 of the Wyoming Constitution requires that all property “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." 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. § 39-13-103(b)(ii).

23.     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 earnings approach, and the Computer Assisted Mass Appraisal (CAMA) system. Rules, Wyoming Department of Revenue, Ch. 9, § 6 (a), (b), (c), (d).

24.     The Assessor utilized the sales comparison approach to value Petitioner’s property. Petitioner demonstrated no error or inaccuracy in the Assessor’s use of the sales comparison approach.

25.     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 & Company 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 which provide for the use of the sales comparison approach. Rules, Wyoming Department of Revenue, Chapter 9, § 6(b), (d).

26.     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 (Wyo.1996); Amax Coal v. State Board of Equalization, 819 P.2d 825 (Wyo. 1991); Sage Club, Inc. v. 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. As 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 to support an agency’s conclusion.” Sidwell v. State Worker’s Compensation Div., 977 P.2d 60, 63 (Wyo. 1999).

27. Petitioner opined that burnt trees had permanently deflated the value of her land but there was no extrinsic evidence presented to support the theory.

28. The Assessor utilized the sales comparison approach to determine the value of the lots. She properly compared the land to the lowest range for lots in the development, lots that had few or no trees.

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

                                                               ORDER

          IT IS THEREFORE HEREBY ORDERED The Platte County Board of Equalization Order Denying Protest and decision affirming the 2002 value as assigned by the Platte County Assessor 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 17^th day of January, 2003.

                                                                STATE BOARD OF EQUALIZATION

Edmund J. Schmidt, Chairman

Roberta A. Coates, Vice-Chairman

ATTEST:

Wendy Soto, Executive Secretary