BEFORE THE STATE BOARD OF EQUALIZATION
FOR THE STATE OF WYOMING
IN THE MATTER OF THE APPEAL OF )
EDWARD CARTER & VICTORIA )
HUNNICUTT-BISHARA FROM A DECISION ) Docket No. 2002-80
OF THE PLATTE COUNTY BOARD OF )
EQUALIZATION - 2002 PROPERTY )
FINDINGS OF FACT
CONCLUSIONS OF LAW
DECISION AND ORDER
Edward Carter and Victoria Hunnicutt-Bishara, Petitioners, appearing pro-se.
Eric M. Alden, Platte County and Prosecuting Attorney, appearing on behalf of the Platte County Assessor, Respondent.
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 pursuant to a Briefing Order (Locally Assessed Property), dated August 22, 2002. It arises from a decision by the Platte County Board of Equalization (County Board) concerning the Platte County Assessor’s (Assessor) 2002 classification and valuation of property owned by Petitioners in Platte County, Wyoming. Our review is limited to a determination of whether or not the County Board decision was:
Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; in excess of statutory jurisdiction, authority or limitations or lacking statutory right; without observance of procedure required by law; or unsupported by substantial evidence.
Rules, Wyoming State Board of Equalization, Chapter 3, § 9.
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 or mailing of the county board decision, whichever is later. Rules, Wyoming State Board of Equalization Chapter, 3 § 2(a).
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).
Petitioners filed an appeal with the County Board challenging the Assessor’s 2002 classification and valuation of their property located in Platte County, Wyoming. The County Board held a hearing on their protest on June 11, 2002, and, after receiving additional evidence from the Petitioners on June 17, 2002, issued its decision upholding the Assessor’s classification and valuation of Petitioners’ property.
Petitioners assert the Assessor’s classification and assessment of the property as non-agricultural land is incorrect because: (1) They have an orchard with over 20 fruit and nut trees and shrubs surrounded by a chain link fence; (2) they have an apiary with two bee colonies; (3) They have an oral grazing lease covering their land; and (4) the restrictive covenants on their land do not preclude agricultural use. In the alternative, Petitioners assert the Assessor failed to properly determine the market value of their land. Petitioners also raise six procedural complaints: (1)The Assessor failed to exchange evidence 15 days prior to the hearing as required by Wyoming Statute Section 39-13-109(b)(i); (2) The assessment notice did not describe in plain terms the basis for the assessment in violation of Wyoming Statute Section 39-11-102(a)(i)(F); (3) the Assessor failed to provide Petitioners with a copy of the Platte County Agricultural Questionaire/Application; (4) the Petitioners’ purchase price was disclosed during the County Board hearing; (5) the County Board Decision dated July 2, 2002, was not mailed until July 8, 2002; and (6) a copy of the tape of the hearing was not provided in a timely manner.
The Assessor valued Petitioners’ property as non-agricultural because: (1) the property was part of a larger parcel of land subdivided into 35 acre lots offered by the developer with restrictive covenants; and (2) the Petitioners did not establish their property had been used for the prior two years as agricultural land.
The County Board found the property is not agricultural property and the valuation of the Assessor is an accurate fair market value.
We find the County Board properly affirmed the Assessor’s valuation of Petitioners’ property as non-agricultural because the parcels had not been used for the prior two years and were not being used on the assessment date primarily for agricultural purposes. Further, we concur with the County Board that the valuation of the Assessor reflects the fair market value of Petitioners’ land. Finally, we find Petitioners procedural issues do not warrant reversal of the County Board decision.
FINDINGS OF FACT
1. The County Board Decision on Appeal was dated July 2, 2002. [County Board Record, Document 0031]. The Certified Mail Receipt reflects that the decision was sent to Petitioners on July 8, 2002. [County Board Record, Document 0032]. Petitioners’ Notice of Appeal to the State Board was filed July 31, 2002, within thirty days of both the date of and the mailing of the County Board’s decision. [State Board File].
2. By an unsigned letter filed on September 26, 2002, Petitioners elected to rely on their notice of appeal rather than file an opening brief. A responsive letter was filed on behalf of the Assessor on November 14, 2002. Petitioners did not file a reply brief. [State Board File].
3. Petitioners own five lots, parcels 17, 18, 30, 31 and 8, each slightly over 35 acres, located in the Oregon Trail Ranch subdivision in Platte County, Wyoming. The combined parcels cover over 178 acres. [County Board Record Document 0007; County Board Tape Recording, Tape1, Side 1].
4. Covenants for the subdivision were filed by the developer which contain conflicting provisions concerning the use of the property for agricultural purposes. Paragraph 5 prohibits any commercial livestock raising or training or farming operation on the property and limits animals except those used for domestic or household use, including pets. [County Board Record, Document 21, p. 3]. Paragraph 12 of the covenants references a grazing lease for 1997. [County Board Record, Document 21, p. 4]. The final paragraph of the covenants states the intent of the covenants is for the land to be used for agricultural purposes. [County Board Record, Document 21, p. 5].
5. In their written statement and testimony before the County Board, Petitioners outlined the steps they had taken to establish an agricultural use of their land. These steps included a verbal agreement with the owner of Welsh Land and Cattle, L.L.C. for grazing of cattle, the establishment of two honey bee colonies on the property, the planting of a protected orchard of fruit and nut trees and shrubs, the drilling of a water well that will be used to water cattle, and the fencing of a portion of their property. [County Board Record, Documents 00007 through 00010; County Board Tape Recording, Tape 1, Side 1].
6. The owner of Welsh Land and Cattle, L.L.C. testified that Petitioners land had not been grazed for several years and that she may want to keep six to eight, or maybe four cattle on the property in the fall of 2002. [County Board Tape Recording, Tape 1, Side 2]. No evidence was presented to the County Board concerning the terms of the lease or the fees, if any, to be paid to Petitioners.
7. The application for the water well indicates the water will be applied for use by 1 house and noncommercial watering of lawns and gardens. [County Board Record, Document 00008, p. 1]. While Petitioners indicated they had amended the application to include stock watering, Petitioners did not provide a copy of the letter requesting the amendment or indicate when the amendment was requested or granted. [County Board Tape Recording, Tape 1, Side 2]. The well was completed on May 8, 2001. [County Board Record, Document 00008, p. 3].
8. At the time of the hearing, Petitioners had two bee colonies on their property. [County Board Record, Document 0007, p. 3; County Board Tape Recording, Tape 1, Side 1]. Permission for the two colonies required by the restrictive covenants was not obtained until May 1, 2002. [County Board Record, Document 0010]. Petitioners had not registered their apiary with the Wyoming Department of Agriculture as required by Wyoming Statutes Sections 11-7-101, et seq. [County Board Tape Recording, Tape 1, Side 1].
9. In support of their alternate contention that the assessed value established by the Assessor was high, Petitioners offered the following observations. First, the developer of Oregon Trail Ranch offered a discount to purchasers of parcels who paid cash. Second, the price they paid for one parcel and the amount paid by a third party for another parcel was less than the assessed value. Third, the weighted average price per acre for properties categorized as “Low” by the Assessor was lower than the assessed value of one of their parcels. Finally, they opined that their property should be compared to unsubdivided lands adjacent to the Oregon Trail Ranch. [County Board Record, Document 0007, pp. 4-5; County Board Tape Recording, Tape 1, Side 1].
10. Petitioners did not present an independent appraisal or other third party opinion of the fair market value of their property.
11. The Assessor valued Petitioners’ parcels as non-agricultural using comparable sales of other parcels in the Oregon Trial Ranch to determine the value of Petitioners’ property. The Assessor assigned value classes to Petitioners’ parcels based on the parcels physical attributes and used sales of the other similar lots in the Oregon Trail Ranch to arrive at a comparable sales value for Petitioners’ parcels. [County Board Record, Document 0020, Assessor Exhibit 5; Document 0024, Assessor Exhibit 9, ; County Board Record, Document 0029; County Board Tape Recording, Tape 1, Side 2]. The Assessor explained why the sale of the one parcel by a third party used by Petitioners was not valid. She also explained that there were insufficient sales in 2000 and 2001 to change the valuation. [County Board Record, Document 0029; County Board Tape Recording Tape 1, Side 2].
10. The Assessor sent her exhibits for the County Board hearing to Petitioners on May 29, 2002. The exhibits were available for Petitioners to pick up on June 1, 2002 but were not picked up by Petitioners until June 3, 2002. At the June 11, 2002, hearing, Petitioners stated they wanted to proceed. [County Board Tape Recording, Tape 1, Side 1]. To correct any potential prejudice to Petitioners, additional time was afforded to the Petitioners after the hearing to present any additional evidence they desired. [County Board Tape Recording, Tape 2, Side 3].
11. On appeal, Petitioners complain for the first time that the prices paid for their lots was disclosed during the hearing. The first disclosure was made by Petitioners in their statement and testimony. [County Board Record, Document 00007, p. 4; County Board Tape Recording, Tape 1, Side 1]. The Assessor mentioned the price paid by Petitioners for all five lots in her closing statement. [County Board Tape Recording, Tape 2, Side 3]. Petitioners did not request that the hearing room be cleared prior to their disclosure or object to the Assessor’s disclosure.
12. Any Conclusions of Law set forth below which may include any Finding of Fact 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. 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).
15. The Wyoming Constitution 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.
Article 15, Section 11 (b), Wyoming Constitution.
16. For 2002, agricultural land was defined by Wyoming Statutes as:
. . . 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.
Wyo. Stat. § 39-13-101(a)(iii).
17. Similarly, the applicable Department of Revenue (Department) rules define agricultural land as:
. . . 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.
Rules, Wyoming Department of Revenue, Chapter 10, § 3(a).
18. 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.
In the Matter of the Appeal of Welch Land & Cattle Company from a decision of the Platte County Board of Equalization, Wyo. State Bd. of Equalization, Docket No. 2001-79 (January 17, 2003); In the Matter of the Appeal of Mark and Kathy Loveland for a decision of the Crook County Board of Equalization, 2002 WL 31440193 (Wyo. State Bd. of Equalization); 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 Bd. of Equalization).
19. If a petitioner fails to introduce sufficient evidence of prior and present agriculture use, petitioner’s property 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 Bd. of Equalization).
18. Each tax year, the condition and use of the property as of January 1 of that year govern the value of the property. Wyo. Stat. § 39-13-103(b)(i)(A). Changes occurring after the assessment date are not relevant for purposes of that year’s valuation. In the Matter of the Appeal of Amoco Production Company form a decision of the Carbon County Board of Equalization, 1989 WL 234617 (State Board of Equalization).
19. The County Board decision that Petitioners’ land is not agricultural is supported by substantial evidence. Petitioners failed to demonstrate the land meets the definition of agriculture land in effect for the 2002 valuation. No evidence of grazing of Petitioners’ land from 1997 through January 1, 2002, was provided. Rather the evidence showed that there was no grazing during the prior two years on the assessment date. No evidence was presented as to when the orchard was planted or how a monetary profit was to be obtained from the over 20 fruit and nut trees and shrubs was presented. The evidence established there was no apiary during the prior two years or on the assessment date, January 1, 2002. Finally, the contradictory provisions of the restrictive covenants do not support an agricultural classification of the lands.
20. Having determined the County Board’s decision denying agricultural classification for Petitioners’ land is correct, 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.
22. 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).
23. 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 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).
24. 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).
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. The Assessor utilized the sales comparison approach to value Petitioner’s property. She properly compared the Petitioner’ parcels to the valid sales of comparable parcels in the development. Petitioner demonstrated no error or inaccuracy in the Assessor’s use of the sales comparison approach.
28. Petitioners did not present an appraisal or other evidence of the fair market value of their parcels to overcome the presumption in favor of the Assessor.
29. Therefore, we find the County Board decision affirming the Assessor’s valuation of Petitioners’ property is supported by substantial evidence.
30. In considering the procedural errors raised by Petitioners on appeal we consider the gravity of the error, not its mere occurrence. The Petitioners must show how the error was prejudicial and affected their substantial rights. Grams v. Environmental Quality Council, 730 P.2d 784, 787 (Wyo. 1986).
31. The assessment notice provided by the Assessor to the Petitioners complied in all respects with the requirements of Wyoming Statutes Section 39-13-103(b)(viii). The Petitioners were put on inquiry about the valuation of their parcels when the first assessment notice was received by them showing taxes well above the tax estimate contained in the “Property Fact Sheet” provided to them by the developer when they first inquired about the property. [County Board Record, Document 0007, p. 3; Document 0011].
32. Petitioners claim they were prejudiced by their receipt of the Assessor’s exhibits 8 days prior to the hearing is without merit. Petitioners expressed a clear desire to have the hearing as scheduled and were given additional time after the hearing to provide additional evidence. [County Board Tape Recording, Tape 1, Side 1; Tape 2, Side 3]. Petitioners were not prejudiced; nor were their substantive rights adversely affected by the timing of their receipt of the Assessor’s exhibits.
33. Petitioners claim that they were prejudiced by the mailing of the County Board’s decision 6 days after it was signed is also without merit. Petitioners had thirty days from the mailing of the County Board decision to perfect their appeal. The rules of the State Board require a notice of appeal to be filed “within thirty days of the within thirty (30) days from the entry of a decision of a county board of equalization or upon the date of mailing of the decision as evidenced by a legible postmark, whichever is later.” Rules, Wyoming State Board of Equalization, Chapter 3, Section 2(a). Petitioners’ ignorance of the filing requirements cannot support any claim of prejudice.
34. Likewise, Petitioners’ complaint that there was a delay in the County Clerk providing them with a copy of a tape of the County Board hearing does not support any claim of prejudice. Petitioners had until September 26, 2002, to file an opening brief with the State Board. [State Board Record]. They received the tape prior to the time their notice of appeal to the State Board was due and more than two months prior to the date their opening brief was due to be filed with the State Board. No prejudice has been shown. This is particularly true in light of Petitioners’ decision not to file either an opening brief or reply brief with the State Board.
35. The County Board decision affirming the Assessor’s 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
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 28th day of February, 2003.
STATE BOARD OF EQUALIZATION
Edmund J. Schmidt, Chairman
Roberta A. Coates, Vice-Chairman
Wendy Soto, Executive Secretary