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. 2002-99
BOARD OF EQUALIZATION - 2002 )
PROPERTY VALUATION )
FINDINGS OF FACT
CONCLUSIONS OF LAW
DECISION AND ORDER
Gary and Janice Eschedor, Petitioners, appearing pro-se.
Susan Redding, Crook County Assessor, appearing pro-se.
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 October 14, 2002. It arises from a decision by the Crook County Board of Equalization (County Board) concerning the 2002 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?
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).
The Petitioners filed an appeal with the County Board challenging the 2002 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 the property is utilized as agricultural land and should be assessed as such.
The Assessor valued Petitioners’ property as non-agricultural because: (1) the definition of agricultural use, as defined by Wyoming Statute Section 39-13-101; is not met, (2) the land is in transition from agricultural to residential.
The County Board’s Order Denying Protest, found Petitioners failed to present evidence supporting agricultural use of the property. Therefore, the County Board held that the Assessor properly assessed Petitioners’ property as non-agricultural. We agree the property does not qualify for agriculture classification at this time.
FINDINGS OF FACT
1. The County Board Order Denying Protest for agriculture classification is dated August 7, 2002. [ State Board Record, Record pp. 16-20]. The Notice of Appeal was filed September 4, 2002, within thirty days of the County Board Order.
2. Petitioners filed a letter on November 12, 2002, stating that they wished to rely on their Notice of Appeal as an Opening Brief. The Assessor filed a response letter on December 13, 2002. Petitioners did not file a reply brief. [State Board File.]
3. Agricultural use is allowed on Petitioners’ property. The property consists of a 50.45 acre tract, approximately 22 or 23 acres is hay ground and the remainder has trees. Petitioners have taken steps to use the land for agricultural purposes such as: fencing the neighbors cattle out of the hay land, erecting a pole barn, planting some trees, purchasing a back-hoe and tractor, and Petitioners anticipate entering into a grazing lease. [County Board Record p. 0013 and Tape Recording of Hearing].
4. The Assessor assigned a fair market value to Petitioners’ property and assessed it as non-agricultural property. [County Board Record p. 0013 ]
5. Petitioners were not able to raise hay in prior years due to a drought, and neighbors were using the land. Petitioners did fence the property and erect a pole barn (which remains empty), planted trees and built 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 7, 2002.] Petitioners have owned the land for four years, and it has been assessed as agricultural for the past two years. [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:
“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.
Wyo. Stat. § 39-13-101. Definitions(a) (iii).
11. The applicable Department of Revenue Rules, at Chapter 10, provides in pertinent part:
(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.
Rules, Wyoming Department of Revenue, Chapter 10, §3(a).
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 agricultural 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.
13. The record indicates the property may be used for agricultural purposes as it is currently zoned. However, there is no showing in the record of Petitioners receiving a monetary profit. As the Department of Revenue Rules indicate at Chapter 10, Section 3 (a)(ii), 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 a reasonable expectation of profit from 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).
14. 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.
15. 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 that the use of the land was commensurate with the productive capacity of the property with an intent to make a profit.
16. The raising of trees may qualify land for agriculture classification if trees are being raised for a profit. The Petitioner has not shown a profit or the expectation of a reasonable profit.
17. 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.
18. 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.
19. 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).
20. 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.
21. The date of assessment is January 1 of each year. Wyo. Stat. §39-13-103(b)(i)(A).
The use of the property as of the date of assessment is what determines the classification for assessment. On January 1, 2002, the land was not being used for agricultural purposes. It was not being used for the purpose of obtaining a profit to the land owner. However, the landowner may be taking steps which will qualify the valuation in the future.
22. The Petitioners failed to present evidence that a monetary profit is anticipated from the hay production. The Department of Revenue Rules, 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.
23. 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.
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IT IS THEREFORE HEREBY ORDERED:
The Crook County Board of Equalization Order Denying Protest and decision affirming the 2002 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 28th day of February, 2003.
STATE BOARD OF EQUALIZATION
Edmund J. Schmidt, Chairman
Roberta A. Coates, Vice-Chairman
Wendy Soto, Executive Secretary