BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF THE   ) 

FREMONT COUNTY ASSESSOR FROM     )

A DECISION OF THE FREMONT COUNTY   )         Docket No. 2005-84

BOARD OF EQUALIZATION - 2005               )

PROPERTY VALUATION                                  )

(Nation Property)                                                 )

DECISION AND ORDER

APPEARANCES

James Whiting, Deputy Fremont County and Prosecuting Attorney, on behalf of Eileen Oakley, Fremont County Assessor (Petitioner or Assessor).

Ramon A. and Trina R. Nation (Respondents or Taxpayers), appearing pro se.

DIGEST

The Fremont County Assessor appeals a decision of the Fremont 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 18, 2005. Petitioner and Taxpayers filed briefs as allowed by the State Board’s October 26, 2005, Briefing Order. Neither party requested oral argument.

The Assessor appeals the County Board decision directing her to re-assess the Taxpayers’ property using an agricultural classification.

We evaluate the Assessor’s claims against our standard of review, which is whether the ruling of the County Board was arbitrary, capricious, unsupported by substantial evidence, and/or contrary to law. Rules, Wyoming State Board of Equalization, Chapter 3, § 9.

PROCEEDINGS BEFORE THE COUNTY BOARD

The County Board conducted a hearing on June 27, 2005. On July 19, 2005, the County Board entered a Decision ordering the Assessor to re-assess the Taxpayers’ land using an agricultural classification.

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, the State Board 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 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), (currently Wyo. Stat. Ann. § 39-11-102.1(c)).

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. § 16-3-114(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;

(c) Without observance of procedure required by law; or

(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.

Romero v. Davy McKee Corp., 854 P.2d 59, 61 (Wyo. 1993).

We review the findings of ultimate fact of a county board of equalization de novo:

“When an agency’s determinations contain elements of law and fact, we do not treat them with the deference we reserve for findings of basic fact. When reviewing an ‘ultimate fact’ we separate the factual and legal aspects of the finding to determine whether the correct rule of law has been properly applied to the facts. We do not defer to the agency’s ultimate factual finding if there is an error in either stating or applying the law.” Basin Elec. Power Co-op., Inc. v. Dep’t of Revenue, State of Wyo., 970 P.2d 841, 850-51 (Wyo. 1998).

Britt v. Fremont County Assessor, 2006 WY 10, ¶ 17, 126 P.3d 117, 123 (Wyo. 2006).

We must also apply this “arbitrary and capricious” standard:

Even if sufficient evidence is found to support the agency’s decision under the substantial evidence test, this [Board] is also required to apply the arbitrary-and-capricious standard as a “safety net” to catch other agency action which might have violated the Wyoming Administrative Procedures Act. Decker v. Wyoming Medical Comm’n, 2005 WY 160, ¶ 24, 124 P.3d 686, 694 (Wyo. 2005). “Under the umbrella of arbitrary and capricious actions would fall potential mistakes such as inconsistent or incomplete findings of fact or any violation of due process.” Id. (quoting Padilla v. State ex rel. Wyoming Workers’ Safety and Comp. Div., 2004 WY 10, ¶ 6, 84 P.3d 960, 962 (Wyo. 2004)).

State ex rel. Wyoming Workers’ Safety and Comp. Div. v. Madeley, 2006 WY 63, ¶ 8, 134 P.3d 281, 284 (Wyo. 2006). Where there is insufficient information to review the decision of the County Board on its merits or the findings of fact or conclusions of law are inadequate to permit effective review, the matter must be remanded. Id. at ¶ 14.

ISSUES

Under our standards of review, the Assessor must argue that the County Board decision is unsupported by substantial evidence, and/or the County Board acted arbitrarily or capriciously when it determined the Taxpayers’ property should be classified as agricultural for 2005 tax purposes.

We are unable to discern from the County Board decision whether the four separate statutory requirements for agricultural classification were considered by the County Board or what factual basis, if any, the County Board relied on in granting the Taxpayers’ request for an agricultural classification. We will remand this case to the County Board for further proceedings consistent with this decision.

FACTS PRESENTED TO THE COUNTY BOARD

1.        Ray and Trina Nation own and reside on 18.74 acres at 31 O’Brien Road north of Lander, Wyoming. The property was formerly known as Lot 5 of the O’Brien Subdivision in Fremont County, Wyoming. [County Board Record, Exhibit A, p. 12].

2.        Eileen Oakley is the Fremont County Assessor. [County Board Record, Hearing Tape].

3.        The Assessor sent the Taxpayers an Assessment Schedule listing the total market value of their property as $432,300 on or about April 25, 2005. Of this total $131,800 was for the Taxpayers’ land, which is the amount at issue in this proceeding. [County Board Record, Exhibit A, p. 12].

4.        Ray and Trina Nation applied for agricultural classification for their property on March 1, 2005, using the Fremont County Affidavit for Agricultural Classification, 2005 Assessment Year form. [County Board Record, Exhibit P, pp. 72, 79].

5.        On April 4, 2005, the Assessor denied the Taxpayers’ application for agricultural classification stating the information furnished did not meet the definition for agricultural land set forth in the Wyoming statutes and rules and the property had characteristics of a subdivision or was in transition for further development. [County Board Record, Exhibit 14, p. 135].

6.        Ray and Trina Nation made a second request for agricultural classification for their property on May 6, 2005. Again, they used a Fremont County Affidavit for Agricultural Classification, 2005 Assessment Year form. [County Board Record, Exhibit 12, pp. 130-132].

7.        On May 18, 2005, the Assessor sent a letter denying the Taxpayers’ second application for agricultural classification stating the information furnished did not meet the definition for agricultural land as set forth in the Wyoming statutes and rules. The Assessor gave the following reasons for the denial:

Property has characteristics of a subdivision or is in transition for further development.

Primary purpose or use of the land is other than producing a marketable agricultural product, i.e. home site, cabin site, or dude ranch facilities.

The owner/lessee does not report or pay taxes on farm machinery or other agricultural equipment.

[County Board Record, Exhibit P, p. 71].

8.        The denial letter also advised the Taxpayers that if they had additional information which may affect the classification to furnish it to the Assessor’s office. If they disagreed with the decision, they could file a protest with the County Board within 30 days of the assessment notice. [County Board Record, Exhibit P, p. 71].

9.        The Taxpayers filed a Statement To Contest 2005 Property Tax Assessment on May 10, 2005, with a letter attached. [County Board Record, Exhibit 5, pp. 104-105; Exhibit 6, pp. 106-107]. The Taxpayers filed a second Statement to Contest 2005 Property Tax Assessment on May 15, 2005, with additional information attached. [County Board Record, Exhibit 7, pp. 108-110].

10.      A hearing was held before the County Board on June 27, 2005. [County Board Record, p. 144; Hearing Tape].

11.      Mr. Nation testified the O’Brien Subdivision was vacated in 2004. In support of this testimony, a copy of a quitclaim deed was submitted. [County Board Record, Exhibit 3, p. 100].

12.      Mr. Nation informed the County Board the land being appealed is part of their cow/calf operation. In addition to their 18.74 acres in this appeal, they own 20 acres of irrigated and sub-irrigated pasture in the Fort Washakie area, and lease 40 acres of irrigated hay land in the Boulder Flat region. [County Board Record, Hearing Tape; Exhibit 10, pp. 125-126; Exhibit 11, pp. 127-129].

13.      Mr. Nation stated he was seeking agricultural classification for irrigated land which produced two cuttings of hay. Half of the hay was sold and the other half was used to feed their cattle. All of the cattle spend eight months each year on the 31 O’Brien Road property. Mr. Nation presented copies of four checks representing the proceeds from the sale of agricultural products in 2004. The agricultural products included hay, three-quarters of one butchered beef, three open cows and one six year old bull. [County Board Record, Hearing Tape; Exhibit P, pp. 78-79; Exhibit 13, pp. 133-134].

14.      The Taxpayers also submitted their 2004 tax return, including Schedule F, Profit or Loss From Farming, which indicated no gross revenues from their agricultural operation in 2004. [County Board Record, Exhibit P, pp. 74-77].

15.      The Taxpayers complained that similar parcels near their property, including the Richard Bird and Ken Mead properties, received agricultural classification. Neither property have a cattle operation but both have a few horses for pleasure. [County Board Record, Exhibit 15, p. 137].

16.      Mr. Nation told the County Board all of the property within the county could have characteristics of subdivisions. He testified their land would never be further developed or subdivided because the rules of the Home Owners Association will not allow it. [County Board Record, Hearing Tape; Exhibit 2, p. 94].

17.      Mr. Nation testified the landowners in the former O’Brien Subdivision could run as many livestock as they wanted but could not have certain types of livestock such as hogs and chickens. He said the covenants do not provide for a committee setting the number of sheep or cows. [County Board Record, Hearing Tape].

18.      The Taxpayers disagreed with the Assessor concerning the land being in transition. The Taxpayers questioned why there was a difference in the Assessor’s denial of their two agricultural exemption applications. [Compare County Board Record, Exhibit 14, p. 135 with Exhibit P, p. 71].

19.      Eileen Oakley testified she was the Fremont County Assessor and was certified as a property tax appraiser by the Department. [County Board Record, Hearing Tape].

20.      The Assessor presented a complete description of the Taxpayers’ property. The market value of the property was determined by using the CAMA (Computer Assisted Mass Appraisal) system set forth by the Department. [County Board Record, Exhibit B, p. 13].

21.      Only the residential classification of the Taxpayers’ land was disputed. [County Board Record, Hearing Tape; Exhibit R, p. 87].

22.      The Assessor testified in order to qualify for agricultural assessment the Taxpayers’ property must meet the conditions of the statutes and rules governing agricultural classification. The statutes outline those conditions and Chapter 10 of the Rules of the Department further define the conditions. [County Board Record, Exhibits I, pp. 39-42; Exhibit R, p. 88].

23.      The Assessor told the County Board to meet agricultural classification there were four qualifications, all of which must be met. The initial qualification is that the land be used to produce forage. There were, however, other qualifiers. The Assessor must consider that certain activities which appear to be agricultural in nature do not by themselves qualify land for the agricultural classification. The Assessor must consider all requirements, not just the appearance of the land. [County Board Record, Hearing Tape; Exhibit R, p. 88].

24.      The second requirement an assessor must consider is whether the land is part of a platted subdivision. The Assessor conceded the Board of County Commissioners had vacated the O’Brien Subdivision but believed the vacation contravened the intent of the statutes on subdivisions. [County Board Record, Hearing Tape; Exhibit R, p. 88].

25.      The Assessor testified the parcels in the O’Brien Subdivision were required to be platted at the time they were formed and would be required to be platted if they were formed today. [County Board Record, Hearing Tape; Exhibit K, p. 44].

26.      The Assessor testified the definition of non-agricultural land under the Department’s Rules, Chapter 10, § 3(c)(ii) states “[l]and in active transition from agricultural use to residential, commercial or industrial use, which includes creation or division of a tract, parcel or other unit of land for the purpose of sale or development for such use” shall be non-agricultural. [County Board Record, Assessor’s Exhibit I, p. 41; Exhibit R, p. 88].

27.      The Assessor informed the County Board the owners of the O’Brien Subdivision lots waited until the subdivision was fully developed to begin the process of vacation. These lots were sold as residential lots. The original restrictive covenants were designed to insure the use of the property for attractive country living, with residential purposes only. The original restrictive covenants allowed some animals but such use was regulated by an Architectural Control Committee. [County Board Record, Hearing Tape; Exhibit D, pp. 17-22; Exhibit R, p. 88]. The amended restrictive covenants, filed after the vacation of the subdivision, changed the covenants’ wording minimally, adding the word “agricultural” to the permitted land uses. The Architectural Control Committee, however, still controlled the use of the land in the amended covenants. [County Board Record, Hearing Tape; Exhibit F, pp. 29-37].

28.      The Assessor testified the statutes and rules address agricultural land being used or employed primarily in an agricultural operation, where primarily means chiefly or of the first importance. The Assessor expressed her opinion that because the land was defined in its own covenants as residential, with animals and agricultural use being limited, its primary use was residential. This parcel has significant residential improvements as described in the CAMA printout. [County Board Record, Hearing Tape; Exhibit B, p. 13; Exhibit R, p. 89].

29.      The Assessor told the County Board the third qualification for consideration was whether the owner of the land had derived annual gross revenue of not less than $500. The Taxpayers furnished the Assessor copies of four checks totaling $4,523.15. [County Board Record, Exhibit P, pp. 78-79]. This parcel, however, was part of a larger agricultural operation. The Assessor could not determine what portion of the revenue was attributed to the Taxpayers’ land listed in this appeal. [County Board Record, Hearing Tape; Exhibit R, p. 89].

30.      The Assessor testified the fourth qualification to be considered for agricultural classification was that “[t]he land has been used or employed, consistent with the land’s size, location and capability to produce as defined by the department rules and the mapping and agricultural manual published by the department, primarily in the agricultural operation.” The Assessor pointed out that by their own covenants, the Taxpayers’ land was residential with agricultural use being limited. It was her opinion, therefore, that the primary use of the Taxpayers’ land was residential. [County Board Record, Hearing Tape; Exhibit B, p. 13].

31.      The Assessor reviewed the records of other small acreage parcels. Only five parcels between 5 and 20 acres in size had an agricultural value. There were 247 other parcels of similar size valued as residential. The Assessor’s Office is receiving more and more applications for agricultural classification. Agricultural status is considered at the time of the application. The Assessor’s office has consistently and uniformly valued these small parcels as residential. [County Board Record, Hearing Tape; Exhibit N, pp. 62-63; Exhibit O, pp. 64-70; Exhibit R, p. 89].

32.      In conclusion, the Assessor told the County Board the Taxpayers’ property had activities that appeared to be agricultural but did not meet all of the requirements for agricultural classification. The agricultural land was divided into parcels and sold with the primary use as residential property and is controlled by restrictive covenants. In the Assessor’s opinion, the Taxpayers’ land was correctly valued as residential. [County Board Record, Hearing Tape; Exhibit R, p. 89].

DISCUSSION OF ISSUES AND APPLICABLE LAW

33.      At the County Board hearing, the Taxpayers challenged the Assessor’s decision to classify a portion of their land located at 31 O’Brien Road as residential rather than agricultural. On appeal, the Assessor argues the County Board erred in ordering her to classify the Taxpayers’ land located at 31 O’Brien Road as agricultural.

34.      The Wyoming Constitution, article 15, § 11(b) provides in pertinent part: “[a]ll 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.”

35.      The classification of land as agricultural requires fulfilment of four statutory requirements:

(x) The following shall apply to agricultural land:

        (A) The department shall determine the taxable value of agricultural land and prescribe the form of the sworn statement to be used by the property owner to declare that the property meets the requirements of subparagraph (B) of this paragraph. In determining the taxable value for assessment purposes under this paragraph, the value of agricultural land shall be based on the current use of the land, and the capability of the land to produce agricultural products, including grazing and forage, based on average yields of lands of the same classification under normal conditions;

        (B) Contiguous or noncontiguous parcels of land under one (1) operation owned or leased shall qualify for classification as agricultural land if the land meets each of the following qualifications:

    (I) The land is presently being used and employed for an agricultural purpose;

                (II) The land is not part of a platted subdivision;

    (III) If the land is not leased land, the owner of the land has derived annual gross revenues of not less than five hundred dollars ($500.00) from the marketing of agricultural products, or if the land is leased land the lessee has derived annual gross revenues of not less than one thousand dollars ($1,000.00) from the marketing of agricultural products; and

    (IV) The land has been used or employed, consistent with the land's size, location and capability to produce as defined by department rules and the mapping and agricultural manual published by the department, primarily in an agricultural operation, or the land does not meet this requirement and the requirement of subdivision (III) of this subparagraph because the producer:

                                     (1) Experiences an intervening cause of production failure beyond its

                                      control;

(2) Causes a marketing delay for economic advantage;

                                    (3) Participates in a bona fide conservation program, in which case proof

                                     by an affidavit showing qualification in a previous year shall suffice; or

    (4) Has planted a crop that will not yield an income in the tax year.

       (C) If needed, the county assessor may require the producer to provide a sworn affidavit affirming that the land meets the      requirements of this paragraph. When deemed necessary, the county assessor may further require supporting documentation.

Wyo. Stat. Ann. § 39-13-103(b)(x) (emphasis added).

36.      The Department is required to confer with, advise and give necessary instructions and directions to the county assessors as to their duties, and to promulgate rules and regulations necessary for the enforcement of all tax measures. Wyo. Stat. Ann. § 39-11-102(c)(xvi) and (xix). In particular, except as provided by law for specific property, the Department “shall 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).

37.      A county assessor has a corresponding duty to annually value property within the assessor’s county, and in doing so 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).

38.      The Department’s Rules contain this definition of “agricultural land:”

(a) "Agricultural land" means contiguous or noncontiguous parcels of land presently being used and employed for the primary purpose of providing gross revenue from agricultural or horticultural use or any combination thereof unless part of a platted subdivision. Agricultural land shall generally include land that is actively farmed, ranched or is used to raise timber for timber products to obtain a fair rate of return.

Rules, Wyoming Department of Revenue, Chapter 10, § 3(a).

39.      The Department’s Rules also contain a definition of “non-agricultural lands:”

(c) "Non-agricultural lands" shall include but not be limited to lands as described in the State of Wyoming market valuation of Residential, Commercial and Industrial Lands as published by the Department of Revenue, Ad Valorem Tax Division:

        (i) Lands classified within neighborhood boundaries as residential, commercial, industrial or rural, whether vacant or improved;

        (ii) Lands in active transition from agricultural use to residential, commercial or industrial use, which includes creation or division of a tract, parcel or other unit of land for the purpose of sale or development for such use.

        (iii) Residential subdivision lands developed with either predetermined floor plans and elevations or custom buildings;

        (iv) Farmsteads with lands occupied by buildings which constitute the homesite including one or more acres of land used in direct connection with the homesite;

* * *

        (x) Parcels of land forty (40) acres or less unless the landowner provides proof that such land should otherwise be classified as agricultural land.

        (xi) Land zoned for purposes, which exclude agricultural uses.

Rules, Wyoming Department of Revenue, Chapter 10, § 3(c).

40.      Administrative rules have the force and effect of law. Wyo. Dep’t of Revenue v. Union Pacific Railroad Co., 2003 WY 54, ¶ 18, 67 P.3d 1176, 1184 (Wyo. 2003); Painter v. Abels, 998 P.2d 931, 939 (Wyo. 2000).

41.      With regard to appeals of property tax matters, the Wyoming Supreme Court has stated:

The Department’s valuations for state-assessed property are presumed valid, accurate, and correct. This presumption can only be overcome by credible evidence to the contrary. In the absence of evidence to the contrary, we presume that the officials charged with establishing value exercised honest judgement in accordance with the applicable rules, regulations, and other directives that have passed public scrutiny, either through legislative enactment or agency rule-making, or both.

The petitioner has the initial burden to present sufficient credible evidence to overcome the presumption, and a mere difference of opinion as to value is not sufficient. If the petitioner successfully overcomes the presumption, then the Board is required to equally weigh the evidence of all parties and measure it against the appropriate burden of proof. Once the presumption is successfully overcome, the burden of going forward shifts to the DOR to defend its valuation. The petitioner, however, by challenging the valuation, bears the ultimate burden of persuasion to prove by a preponderance of the evidence that the valuation was not derived in accordance with the required constitutional and statutory requirements for valuing state-assessed property….

****

Colorado Interstate Gas Company v. Wyoming Department of Revenue, 2001 WY 34, ¶¶ 9-11, 20 P.3d 528, ¶¶ 9-11 (Wyo. 2001) (citations omitted).

Airtouch Communications, Inc. v. Dep’t of Revenue, 2003 WY 114, ¶ 12, 76 P.3d 342, 348 (Wyo. 2003).

Thunder Basin Coal Co. V. Campbell County, Wyoming Assessor, 2006 WY 44, ¶ 13, 132 P.3d 801, 806 (Wyo. 2006). This presumption applies equally to an assessor’s valuation of locally assessed property. Id. at 806 n.1.

A.       Present Use for Agricultural Purpose

42.      The first statutory requirement for agricultural valuation is the present use of the land for an agricultural purpose. Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(I). “Agricultural purpose” is defined by statute:

“Agricultural purpose,” as used in W.S. 39-13-101(b)(x), means the following land uses when conducted consistent with the land’s capability to produce:

                      (A)     Cultivation of the soil for production of crops; or

                      (B)     Production of timber products or grasses for forage; or

                      (C)     Rearing, feeding, grazing or management of livestock.

Wyo. Stat. Ann. § 39-13-101(a)(viii).

43.      In this case, the Taxpayers offered testimony that they had two cuttings of hay from their property and grazed cattle on the land in 2004. These uses of the land are agricultural purposes and meet the requirement of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(I).

B.       Not Part of Platted Subdivision

44.      The second statutory requirement for agricultural classification is that the land “is not part of a platted subdivision.” Wyo. Stat. Ann. § 39-13-103(b) (x)(B)(II). The Department’s Rules define “platted subdivision” as follows:

Platted subdivision” means for the purpose of Chapter 13 of Title 39, the creation of a lot, parcel, or other unit of land; or division of a lot, parcel, or other unit of land into one or more parts that has received approval from the governing body in whose jurisdiction the property resides at the time of creation and is recorded in the records of the county clerk.

Rules, Wyoming Department of Revenue, Chapter 10, § 3(b). We note that neither of the parties nor the County Board addressed the Department’s Rule.

45.      The Taxpayers argue that because their property was not now part of a subdivision, they met this test. Yet the definition provided in the Department’s Rule is contrary to this interpretation. Instead, the Department’s definition is backward-looking. If we apply the letter of the platted subdivision definition found in the Department’s Rules in the context of this record, it is undisputed that: (1) the Taxpayers’ property is identifiable as a unit of land that was created as a lot among other units of land, and part of a subdivision; (2) the subdivision so created received the approval of the governing body in whose jurisdiction the property resided at the time of creation; and (3) the creation was recorded in the records of the county clerk. The Taxpayers’ property fits within the Rule, and cannot qualify as agricultural if the rule is literally construed. We see no indication in the record the County Board or the parties addressed the effect of the Department’s Rule.

46.      Stated another way, any modification to the status of the Taxpayers’ property as Lot 5 in the O’Brien Subdivision occurred after the subdivision was created. The Department’s Rule appears to ignore any such post-creation modification of the platted subdivision status.

47.      The Taxpayers’ property was platted as one of eight lots in the O’Brien Subdivision according to the plat filed with the Fremont County Clerk on February 12, 1991. [County Board Record, Exhibit C, p. 16]. The Taxpayers assert the O’Brien Subdivision was vacated by the county commissioners on July 26, 2004. The only evidence in the record supporting The Taxpayers’ assertion is a copy of a quitclaim deed from the Nations to themselves describing the property by metes and bounds. [County Board Record, Exhibit 3, p. 100]. There are no copies of minutes or resolutions of the Board of County Commissioners purporting to vacate the subdivision in the record.

48.      The only Wyoming statute which addresses vacating a subdivision plat is Wyo. Stat. Ann. § 34-12-106:

Any such plat may be vacated by the proprietors thereof at any time before the sale of any lots therein, by a written instrument declaring the same to be vacated, duly executed, acknowledged or proved and recorded in the same office with the plat to be vacated, and the execution and recording of such writing shall operate to destroy the force and effect of the recording of the plat so vacated, and to divest all public rights in the streets, alleys, commons and public grounds laid out or described in such plat, and in case where any lots have been sold, the plat may be vacated as herein provided, by all the owners of lots in such plat joining in the execution of the writing aforesaid. No plat or portion thereof within the corporate limits of a city or town shall be vacated as herein provided without the approval of the city or town.

49.      The plain language of Wyo. Stat. Ann. § 34-12-106 does not require a county commission take any action if a plat is to be vacated under this statute. However, the statute does require a “written instrument declaring the same to be vacated, duly executed, acknowledged or proved and recorded in the same office with the plat to be vacated.” The County Board Record is devoid of such supporting documentation.

50.      There is some question whether the statute which provides a procedure to vacate a plat is in fact applicable to the situation in which an entire subdivision has been sold by the original developer or proprietor. Wyo. Stat. Ann. § 34-12-106. While the statute allows a plat to be vacated after “any lots have been sold”, the vacation action must include both the owners of any lots as well as the original proprietors based upon the language which indicates the owners join “in the execution of the writing aforesaid.” The “writing aforesaid” is apparently a reference to the written statement declaring vacation which the original proprietors are empowered to use to vacate the plat. Wyo. Stat. Ann. § 34-12-106. The statute in effect allows a plat to be vacated as long as the original proprietors still own a portion thereof. Once all lots have been sold, the original proprietors no longer own any interest in the platted property, and the vacation statute is arguably inapplicable. This interpretation is reinforced by the fact the statutory language differentiates between “proprietors” who own all lots before any are sold, and “owners” of sold lots.

51.      When the State Board interprets the language of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(II), it must reach a reasonable interpretation in light of the purpose and policy behind the enactment. Kunkle v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 2005 WY 49, ¶ 11, 109 P.3d 887, 890 (Wyo. 2005). One of the principal purposes of subdivision regulation is to allow local governments to provide for integration of a new development into an existing community:

Subdivision regulation is important for a variety of reasons. First, it enables a community to ensure (insofar as possible) that a new development will “fit in” with the existing community character, that the existing community will be able to provide needed services to the new development both at the present time and in the future, and that the new development will be a safe and healthy place for its citizens to live. Second, in a broader sense, subdivision controls give local governments the opportunity to attempt to ensure the success of a new development. This is important in several respects. For example, subdivision regulations can protect tax revenues and prevent undue disbursements of public funds by limiting the creation of blighted areas. Furthermore, a financially successful development also protects lot purchasers and mortgage lenders by preserving resale value, and helps protect the reputation of the subdivision developer.

Patrick J. Rohan, Zoning and Land Use Controls, § 45.01[3], p. 45-19 (1978-).

52.      While the county commissioners may have approved the Taxpayers’ request to vacate the subdivision, we doubt the purpose of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(II) was to enable landowners who subdivided for the purposes of securing government resources, particularly the location of public roads and access to public roads, to later secure the substantial property tax benefits of agricultural land status. Even if the O’Brien Subdivision owners were “up front” about vacating the subdivision, [see County Board Record, Exhibit E, pp. 24-25], the State Board concludes that the Taxpayers must fully and completely demonstrate compliance with Wyo. Stat. Ann. § 34-12-106, yet did not do so.

53.      The public purpose of ensuring the success of a new development is also at issue in this record. The vacation of a plat also acts to “divest all public rights in the streets, . . . laid out or described in such plat.” Wyo. Stat. Ann. § 34-12-106. If there are no “public rights” in the streets laid out on a vacated plat, the county, in this case, Fremont County, is prohibited from performing any maintenance, snow removal or repair thereon. Vacating the plat would also divest the public of any rights in O’Brien Road. The owners of lots 5, 6, 7 and 8 would have no legal access to a public road unless they have been granted easements by the owners of the lots which lie between lots 5, 6, 7 and 8 and an apparent public road, North 2^nd Street. This may be of great concern to these Taxpayers who occupy Lot 5, but there is no indication they appreciated the full implications of vacating the subdivision.

54.      The parties to this proceeding did not request oral argument, and their Briefs did not address the issues of concern to the State Board regarding the interpretation and application of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(II). The County Board’s decision offers no insight into what specific facts it relied upon with respect to this test, nor what conclusions of law it drew. The County Board, the Taxpayers and the Assessor may have an interest in addressing these issues and may raise arguments or policy considerations that the State Board has not examined based on the inadequate record presented to us. For example, the Assessor appears to believe it significant that the parcel in question could not have been created other than by the subdivision. The State Board concludes that the appropriate action is to remand the case. The County Board, in its discretion, may wish to take further evidence from the Taxpayers regarding whether the subdivision was properly vacated.

C.       Minimum Annual Gross Revenues

55.      The third requirement for agricultural valuation is that the owner establish the statutory minimum gross revenues were derived from agricultural use of the property. Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(III). The evidence presented to the County Board consists of copies of the face of four checks made out to the Taxpayers and copies of the Taxpayers’ 2004 federal income tax return with Schedule F, Profit or Loss from Farming, supra. ¶¶ 13-14. While the checks offered by the Taxpayers indicate the minimum gross revenue requirement was met for all of their lands, their federal income tax return showed no gross revenue from their agricultural operations. The checks do not show whether any of the income was associated with the 31 O’Brien Road property as required by the Department’s Rules, Chapter 10, § 3(c)(x).

56.      The County Board’s Decision offers no insight into how it resolved the conflicting evidence with respect to this test. Since the parties and the County Board may have an interest in addressing this conflict, the State Board concludes that the appropriate action is to remand the case to the County Board. The County Board, in its discretion, may wish to take further evidence from the Taxpayers regarding the minimum gross revenues, if any, derived by the Taxpayers from agricultural use of the 31 O’Brien Road property.

D.       Use Consistent with Size, Location and Capability to Produce

57.      The Wyoming Constitution grants favorable treatment to agricultural and grazing lands, by providing that they “shall be valued according to the capability of the land to produce agricultural products under normal conditions.” Wyo. Const., art. 15 § 11(b). The statutory definition of agricultural purpose echoes this language, limiting those purposes to being “consistent with the land’s capability to produce.” Wyo. Stat. Ann. § 39-13-101(a)(viii). Land can only qualify for agricultural classification if it meets a fourth and related statutory test of being “used or employed, consistent with the land’s size, location and capability to produce as defined by department rules and the mapping and agricultural manual published by the department, primarily in an agricultural operation….” Wyo. Stat. Ann. § 39-113-103(b)(x)(B)(IV). The qualifying phrase, “consistent with the land’s capability to produce,” appears repeatedly in the Department’s Rules. E.g., Rules, Wyoming Department of Revenue, Chapter 10, §§ 3(a)(i), 3(a)(ii), 3(a)(ii)(B), 3(a)(ii)(B)(II), 3(a)(ii)(B)(III), 3(a)(ii)(B)(IV).

58.      The pertinent definition of “consistent” is “in agreement or harmony; in accord; compatible.” Webster’s New World College Dictionary, 4^th Edition (2001), p. 311. The fourth statutory test for agricultural classification requires use of the land in an actual agricultural operation, measured generally by the same constitutional standard providing favorable property tax treatment – the land’s capability to produce. The State Board concludes the intent of the Wyoming Legislature was to deny agricultural classification to lands principally employed in other uses, such as residential or being held for future residential development, yet generating enough agricultural revenue to meet the minimum gross revenue standards of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(III).

59.      In this case, the County Board’s decision does not disclose the facts or rationale for the County Board’s conclusion that the Taxpayers’ land use was consistent with the land’s capability to produce. Evidence of current use of the land, standing alone, is insufficient to establish the Taxpayers’ use was consistent with the land’s capability to produce under normal conditions. Absent any County Board findings concerning the capability of the Taxpayers’ land to produce under normal conditions, the State Board is unable to review the County Board’s conclusion that the Taxpayers’ actual use of their land met the requirements of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV). For this reason alone, we remand the County Board’s decision for further proceedings, and anticipate a decision which: (1) specifically acknowledges the requirements of the statute; and (2) if the County Board concludes that the Taxpayers have met the requirements of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV), specifically addresses the evidentiary basis for its conclusions.

60.      The County Board’s decision indicates it considered two other issues related to Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV), i.e. the argument that the property was in transition to a residential purpose, and the effect of the restrictive covenants on the Taxpayers’ property. [County Board Record, Findings of Fact ¶¶ 3 and 4, p. 5]. On remand, the State Board concludes the County Board is not obliged to revisit the first issue, but may wish to revisit the second issue.

61.      The “lands in transition” issue arises from the Department’s definition of non-agricultural lands. Supra, ¶ 39. The State Board has previously been reluctant to deny agricultural classification based on an assessor’s general assertion that the lands in question are in transition. E.g., Arnola M. Davis, Docket No. 2003-96, February 11, 2004, 2004 WL 364070 (Wyo. St. Bd. Eq.). In this case, the County Board could readily have determined, in its capacity as finder of fact, that any transition of the Taxpayers’ land had already occurred. We accordingly uphold the County Board’s conclusion on this point.

62.      The Assessor also relied on the restrictive covenants as a basis for her decision to classify the Taxpayers’ land as residential. The Taxpayers asserted the covenants restrict further subdivision of their land, but permit agricultural uses. Supra, ¶¶ 16-17. A review of the restrictive covenants shows that an Architectural Control Committee is empowered to determine the number of livestock which may be kept on any given property. [County Board Record, Exhibit F, Section V, p. 31]. On its face, this provision promotes residential use, restricts agricultural use, and unavoidably acts as a limit on the land’s capability to produce. We are skeptical that land which is truly devoted primarily to agricultural purposes can be encumbered by restrictive covenants. However, we cannot discern from the County Board’s decision how it chose to address the effect of the covenants. Should the County Board determine on remand that the Taxpayers have otherwise met the requirements of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV), we encourage specific findings and conclusions on this issue.

E. Miscellaneous Issues

63.      At the County Board hearing, the Taxpayers’ offered testimony regarding similar situated parcels near their property that were receiving agricultural classification. Supra, ¶ 15. As a matter of law, any disparity can be of no concern if the other tracts properly qualify as agricultural. In fact, the Taxpayers are plainly seeking to create a disparity between themselves and other taxpayers who have located in large lot subdivisions in Fremont County. The sole question before the County Board is whether these Taxpayers qualify for favorable treatment.

64.      The Taxpayers have also ignored a provision of the Department’s Rules placing an additional burden on landowners who seek agricultural status for a parcel of forty acres or less. Those landowners must provide proof that a parcel of that size should be classified agricultural. Rules, Wyoming Department of Revenue, Chapter 10, § 3(c)(x). This burden applies whether or not the landowner chooses to appeal an assessor’s determination of agricultural status. For any such landowner the threshold question is not whether other landowners have provided such proof to the assessor, but whether the landowner seeking the classification has done so.

65.      We conclude the County Board’s Findings of Fact and Conclusions of Law are inadequate to permit review of the merits of the County Board’s determination. We must, therefore, remand this case to the County Board for supplemental findings of fact and conclusions of law or other proceedings consistent with this decision.

ORDER