BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

RICHARD J. WALL, JR. FROM )

A DECISION OF THE LARAMIE COUNTY ) Docket No. 2004-119

BOARD OF EQUALIZATION - 2004 )

PROPERTY VALUATION )

DECISION AND ORDER

APPEARANCES

Richard J. Wall, Jr., appearing pro-se (Petitioner).

Mark T. Voss, Deputy Laramie County Attorney, on behalf of Brenda Arnold, Laramie County Assessor (Assessor).

DIGEST

This matter is an appeal from a decision of the Laramie County Board of Equalization (County Board). The State Board of Equalization (State Board), comprised of Alan B. Minier, Chairman, Thomas R. Satterfield, Vice-Chairman, and Thomas D. Roberts, Board Member, considered the hearing record and decision of the County Board.

Petitioner’s Notice of Appeal was filed with the State Board effective August 16, 2004. The Assessor and Petitioner both filed briefs as allowed by the State Board’s October 8, 2004, Briefing Order. Petitioner’s reply brief included a withdrawal of his prior request for oral argument.

Petitioner appeals the County Board decision affirming the 2004 fair market valuation of his property. Petitioner generically argues the County Board decision is arbitrary, capricious, and unsupported by substantial evidence.

PROCEEDINGS BEFORE THE COUNTY BOARD

The County Board conducted a hearing on June 18, 2004. A “Decision on Appeal” was entered by the County Board on July 27, 2004.

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. Rules, Wyoming State Board of Equalization, 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 (Department). 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 Rules, Wyoming State Board of Equalization, Chapter 2 and Rules, Wyoming State Board of Equalization, Chapter 3. Statutory language first adopted in 1995, when the State Board of Equalization and the Department 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, §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 State 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.

Rules, Wyoming State Board of Equalization, 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

Petitioner argues the County Board decision is arbitrary, capricious, and not supported by substantial evidence.

FACTS PRESENTED TO THE COUNTY BOARD

1. Petitioner owns the property at issue, 5416 Sunset Drive, Cheyenne. [Exhibit1; Trans. p. 6]

2. Petitioner appeared pro se at the County Board hearing. Mark T. Voss, Deputy Laramie County Attorney, appeared at the hearing on behalf of the Assessor. [Trans. p. 5].

3. The Assessor, on March 15, 2004, sent a 2004 tax year Notice of Assessment to Petitioner for the property at issue. [Record, p. 48].

4. Petitioner filed an Official Appeal of Assessment with the County Board on April 14, 2004. [Record, pp. 1-A, 43].

5. The County Board held a hearing on Petitioner’s appeal on June 17, 2004. [Record, p. 5-A].

6. Petitioner, at hearing, stated his position the value of his property for 2004, as established by the Assessor, $175,757, was “totally off” since he had purchased the property only nineteen months previously for $157, 466. [Trans. p. 7]. He also stated he felt the sale price had been affected by adverse conditions (trash, etc.) on the property adjacent to and in front of his property. [Trans. p. 8].

7. Petitioner stated his unit is almost identical to other units in the same complex, however his fair market value was improperly higher than the other units. [Trans. pp. 8-10].

8. The only documentary evidence submitted by Petitioner was the first page of a residential loan application for the property at issue, and his written argument. [Trans. p. 12; Exhibit 1].

9. Petitioner admitted he was not a certified property appraiser in Wyoming and did not have a current appraisal for the property at issue. [Trans. p. 12]

10. Petitioner, at the conclusion of the hearing, stated he would accept a fair market value of $167,726 for his property, 5416 Sunset Drive, the same as the fair market value for an allegedly identical neighboring property, 5422 Sunset Drive. [Tr. p. 38].

11. The Assessor testified she had been Laramie County Assessor since 1995, and a certified Wyoming property tax appraiser since 1989. [Trans. p. 14]. She stated the fair market value of the property at issue for 2004 was $175,757 as determined by using the Wyoming Computer Assisted Mass Appraisal System (CAMA) as mandated by the Wyoming Department of Revenue. [Trans. pp. 16-17].

12. The Assessor described the process utilized to list property characteristics in CAMA to determine replacement cost new less depreciation (RCNLD), and how RCNLD is then adjusted by open-market sales data for other similar townhomes. [Trans. pp. 18-20].

13. The Assessor described the characteristics of the property at issue, and compared them to the property at 5422 Sunset Drive which Petitioner alleged is the same as his property. The Assessor noted a key difference in value between the two properties was related to their construction date and resulting depreciation. The property at issue, 5416 Sunset Drive, was constructed in 1999, and had a depreciation factor of 11%. The property at 5422 Sunset Drive was constructed in 1994, and thus had a depreciation factor of 15%. The difference in value between the property at issue, 5416 Sunset Drive, and the property Petitioner claimed was the same as his property, 5422 Sunset Drive, is attributed in major part to the difference in depreciation based on the respective ages. [Trans. pp. 21-27].

14. Petitioner questioned the Assessor with regard to the fact that two older units in the same complex sold in 2003 for more than a newer unit. He suggested this fact indicated the depreciation factor was incorrect, and in fact the CAMA system was in error. The Assessor stated depreciation was likely not the only factor considered by the purchasers in the three sales, and thus the CAMA depreciation was still a valid calculation. [Trans. p. 30].

15. The County Board issued its decision on July 27, 2004, affirming the 2004 fair market value established by the Assessor for the property at issue. [Record, p. 142].

DISCUSSION OF ISSUES AND APPLICABLE LAW

16. Petitioner timely filed an appeal from the County Board decision.

17. The State Board has jurisdiction to hear and determine all issues raised by Petitioner pursuant to Wyo. Stat. Ann. §39-11-102.1(c).

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

19. 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 reasonable time.

Wyo. Stat. Ann. §39-11-101(a)(vi).

20. 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). In completing this task the assessor is required to “[f]aithfully and diligently follow and apply the orders, procedures and formulae of the department of revenue or orders of the state board of equalization for the appraisal and assessment of all taxable property.” Wyo. Stat. Ann. §18-3-204(a)(ix).

21. The Wyoming Constitution, Article 15, § 11 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).

22. 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 Coop., 970 P.2d at 852.

23. The Legislature 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. 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).

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 earning approach, and the CAMA system. Rules, Wyoming Department of Revenue, Chapter 9, §6 (a), (b), (c), and (d).

25. 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.

26. 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, which provide for the use of the CAMA system in the assessment of real property. Rules, Wyoming Department of Revenue, Chapter 9 §6(b), (d). The assessor's determination of value must lead to fair value and the burden is on the taxpayer to establish an overvaluation. Hillard v. Big Horn Coal Co., 549 P.2d 294 (Wyo. 1976).

27. In determining whether there is substantial evidence in the record which reasonably supports a County Board decision, 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); Holly Sugar Corp. v. Wyoming State Board of Equalization, 839 P.2d 959 (Wyo. 1992); 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. 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).

28. Petitioner asserts his property, 5416 Sunset Drive, is identical to 5422 Sunset Drive, thus the 2004 fair market value of his property should be reduced to $167,276, the same value attributed to 5422 Sunset Drive. He argues the effect of depreciation should be ignored based upon his perception of the fact two older properties in the same complex each sold in 2003 for more than an allegedly identical newer property. He further asserts, based on this perception, the CAMA system which considers depreciation in developing the RCNLD value is not accurate, and should be ignored.

29. Petitioner, at the county board hearing, did not present any evidence to show the data input into the CAMA system was incorrect, nor present any authority to support his perception the sales of the two older units for more than the newer unit somehow negated the effects of depreciation.

30. There are many possible reasons why an older property might sell higher than a newer identical property. The mere fact of such an occurrence, without more details as to the terms of the sale, and possibly even the reasons for the sale, is not a sufficient basis to ignore the effect of depreciation, nor to overcome the presumption of validity in favor of an assessor’s value based on the CAMA system. Such an occurrence does not require the conclusion depreciation does not affect the fair market value of property for purposes of taxation.

31. The County Board record fully supports, through appropriate substantial evidence, the conclusion the Assessor complied with all legal requirements in determining the value for Petitioner’s property. She used the CAMA system pursuant to Wyo. Stat. Ann. §39-11-102, and relied on sales comparison as prescribed in Chapter 9 of the Rules and Regulations promulgated by the Wyoming Department of Revenue. The County Board record contains a detailed explanation by the Assessor of how the fair market value for the property owned by Petitioner, 5416 Sunset Drive, was derived, and why it is different, and higher than the value for the property which Petitioner asserts is identical, 5422 Sunset Drive.

32. Petitioner presented no evidence that the Assessor had incorrectly applied CAMA or that the sales used for comparison approach were not correct. He has provided no evidence to fulfill his burden of showing his property is improperly overvalued. Hillard v. Big Horn Coal Co., supra.

33. Petitioner has failed in his burden to show the County Board decision is arbitrary, capricious, and not supported by the substantial evidence.

ORDER

IT IS THEREFORE HEREBY ORDERED the Laramie County Board of Equalization decision affirming the Assessor’s 2004 valuation of Petitioner’s property 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 the appropriate district court by filing a petition for review within 30 days of the date of this decision.

Dated this _______ day of March, 2005.

STATE BOARD OF EQUALIZATION

_____________________________________

Alan B. Minier, Chairman

_____________________________________

Thomas R. Satterfield, Vice-Chairman

_____________________________________

Thomas D. Roberts, Board Member

ATTEST:

________________________________

Wendy J. Soto, Executive Secretary