BEFORE THE STATE BOARD OF EQUALIZATION
FOR THE STATE OF WYOMING
IN THE MATTER OF THE APPEAL OF )
RALPH B., AMANDA R. AND )
CHARLOTTE ALLEY FROM )
A VALUATION DECISION OF THE ) Docket No. 2006-86
FREMONT COUNTY ASSESSOR )
2005 PROPERTY VALUATION )
FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER
APPEARANCES
Ralph B., Amanda R., and Charlotte Alley (Petitioners or Taxpayers), appearing pro-se.
James Whiting, Deputy Fremont County and Prosecuting Attorney, appeared on behalf of Eileen Oakley, Fremont County Assessor (Respondent or Assessor) at the original hearing in this matter before the Fremont County Board of Equalization. Eileen Oakley, Fremont County Assessor, and Tara Berg, Deputy County Assessor, appeared pro-se at the supplemental hearing before the State Board of Equalization.
STATEMENT OF THE CASE
This matter originally came before the State Board of Equalization (State Board) as an appeal by the Fremont County Assessor from a decision of the Fremont County Board of Equalization (County Board). The Assessor appealed the County Board decision directing her to re-assess Taxpayers’ property using an agricultural classification. The 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. Neither party requested oral argument. The State Board entered a Decision and Order dated July 13, 2006, remanding the Assessor’s appeal to the County Board for further proceedings. Fremont County Assessor, (Alley Property), Docket No. 2005-83, July 13, 2006, 2006 WL 3327958 (Wyo. St. Bd. Eq.). In response, on August 14, 2006, the County Board requested, pursuant to Rules, Wyoming State Board of Equalization, Chapter 2, § 36, the original appeal by Taxpayers of the Assessor’s denial of their request for agricultural classification be certified to the State Board for its consideration as the finder of fact rather than as an intermediate level of appellate review. Wyo. Stat. Ann. § 39-11-102.1(c). Compare Rules, Wyoming State Board of Equalization, Chapter 2 and Rules, Wyoming State Board of Equalization, Chapter 3. 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). The State Board granted certification by order dated August 24, 2006. The appeal of Taxpayers from the Assessor’s agricultural classification denial is thus before this Board the same as an initial appeal pursuant to Rules, Wyoming State Board of Equalization, Chapter 2.
The State Board reviewed and carefully considered all the evidence presented at the County Board hearing, including a tape recording of the testimony. Although there was no issue of credibility of the witnesses at the County Board hearing, and thus no need for another recitation of their testimony, the State Board concluded a supplemental hearing before the State Board was necessary to take further evidence with regard to the criteria for agricultural classification of the Alley property. The State Board thus conducted, pursuant to notice, a hearing on October 10, 2006, at the Fremont County Courthouse in Lander, Wyoming, during which Amanda R. Alley, Charlotte Alley, and Eileen Oakley, Fremont County Assessor, presented testimony, and additional exhibits were received.
We have been previously provided, in the context of the Assessor’s original appeal to this Board, sufficient briefing on the relevant issues, thus receipt of further briefing is not required.
JURISDICTION
Within 30 days after the date or postmark date of an assessment schedule, whichever is later, objections to local assessments must be filed with the county assessor indicating why the assessment is incorrect. Wyo. Stat. Ann. §39-13-109(b)(i). Taxpayers’ assessment schedule was dated April 25, 2005. Taxpayers’ protest was filed with the County Assessor on May 6, 2005. The Assessor’s denial of agricultural classification was dated May 18, 2005. The Taxpayers’ appeal is timely.
CONTENTIONS AND ISSUES
Taxpayers assert the County Assessor improperly denied agricultural valuation in 2005 for their property. We affirm the Assessor’s denial of agricultural classification.
FINDINGS OF FACT
1. Amanda R., Ralph B. and Charlotte Alley own 19.59 acres located at 5 O’Brien Road. Taxpayers stated the property is a noncontiguous portion of their ranching operation which includes 121.77 acres located north of the Popo Agie River (parcel #1207380) where Charlotte and Ralph Alley live and raise cattle; 160 acres on Mill Creek where they raise hay and cattle; 70 acres at Fort Washakie where they raise cattle; and 500 acres which they lease to raise cattle and hay. Taxpayers raise approximately 70 tons of irrigated hay (partially alfalfa) in two cuttings on about 19 acres of their O’Brien subdivision property. The hay is taken across the river and fed to their cattle as winter feed. In 2004, the Alleys raised about 250 cows and 20 horses on their entire operation. [Board Record, Exhibit K, p. 45; Statement to Contest 2005 Property Tax Assessment, p. 91; October 10, 2006 Hearing Tape].
2. The O’Brien Road property has a house, a cabin, a garage and a horse barn. The cabin has plumbing in the bathroom but does not have a kitchen. [October 10, 2006 Hearing Tape].
3. Taxpayers testified they own farm equipment which is used in the haying operation for their entire ranch. [Board Record, Hearing Tape].
4. On February 12, 1991, the Fremont County Board of Commissioners approved the plat for the O’Brien Subdivision. [Exhibit C]. The County Clerk recorded the plat the same day. [Exhibit C]. The plat was executed by William Von Holtum, President of Central Bank and Trust, the proprietor and owner of the platted lands. [Exhibit C]. The plat shows eight lots. Lots 1, 2, 3, and 4 lie on the eastern side of the plat, adjacent to North Second Street. [Exhibit C]. Lots 5, 6, 7, and 8 lie on the western side of the plat. [Exhibit C]. O’Brien Road provided access to the western four lots. [Exhibit C]. O’Brien Road runs west from North Second Street between Lot 3 and Lot 2. [Exhibit C].
5. The General Notes on the plat state three caveats:
A. No Public Maintenance of O’Brien Road
B. No Proposed Public Sewage Disposal System
C. No Proposed Domestic Water Source
[Exhibit C]. The plat thus conformed to various minimum statutory requirements. See, Wyo. Stat. Ann. §§ 18-5-306(a)(iv)(D), (a)(vi)(D), (a)(vii).
6. The County Commissioners’ approval of the plat included the provision “that approval in no way obligates Fremont County for financing or constructing of improvements on lands, streets, or easements dedicated to the public except as specifically agreed to by the Board of Commissioners and further, that said approval shall in no way obligate Fremont County for maintenance of streets which are not dedicated to the public nor until all improvements shall have been completed to the satisfaction of the Board of County Commissioners.” [Exhibit C].
7. The plat, as recorded with the county clerk, bears no indication it has been vacated. [Exhibit C].
8. Once again acting on behalf of Central Bank and Trust, William P. Von Holtum recorded Protective and Restrictive Covenants for the O’Brien Subdivision on May 17, 1991. [Exhibit D]. The covenants recite their purpose “is to insure the use of the property for attractive country living residential purposes only … and in general to provide adequately for a high quality of improvement of said property with adequate free space between structures which would accommodate a country living atmosphere including certain permitted livestock, and thereby enhance the value of investments made by purchasers of building sites therein.” [Exhibit D]. Article VII of the covenants prohibited “enterprise of any kind for profit,” stating further that “nor shall such property in any way be used for other than strictly residential purposes.” [Exhibit D].
9. Taxpayers acquired the acreage identified as Lot 3 of O’Brien Subdivision. [Exhibit S]. Although their property abuts North Second Street, the access to the Alley residence is from O’Brien Road. [October 10, 2006 Hearing Tape].
10. Taxpayers recall a neighbor in the O’Brien Subdivision, Tony Spriggs, initiated the discussion with regard to acquiring agricultural classification for their property as well as the other properties in the O’Brien Subdivision. Mr. Spriggs advised them an adjoining neighbor, Richard H. Bird, had agricultural classification for a 15 acre parcel, which was smaller than any of the parcels in the O’Brien Subdivision. [October 10, 2006 Hearing Tape; Exhibit K].
11. According to the Alleys, Spriggs organized a meeting of the O’Brien Subdivision property owners to discuss acquiring agricultural classification for their properties. Most of the property owners attended, including Rick Sollars, an O’Brien Subdivision property owner as well as an attorney. At the meeting, Mr. Sollars indicated that in order to qualify for agricultural classification, the property owners needed only to vacate the subdivision and each owner show $500 in agricultural income from their respective properties. No other criteria for agricultural classification were discussed. There was also some discussion of the status of O’Brien Road after the subdivision was vacated. [October 10, 2006 Hearing Tape].
12. Sollars was apparently hired by the O’Brien Home Owners’ Association to provide legal services to achieve agricultural classification for all properties. Each homeowner contributed to the costs of the legal services through payment to the Association. [October 10, 2006 Hearing Tape]. The record does not include information concerning how and when the O’Brien Home Owners’ Association was established nor the amount each landowner contributed to the cost of legal services.
13. The Alleys joined the owners of all lots of the O’Brien Subdivision in executing a Petition to Vacate the O’Brien Subdivision dated June 1, 2004. [Exhibit S]. The Petition recites:
The Undersigned, representing 100% of the owners of the land located within the O’Brien Subdivision … hereby file this Petition to Vacate said subdivision pursuant to W.S. Section 34-12-106 and Section 8 of the Fremont County Subdivision Regulation. Petitioners state that vacation will not interfere with the development of, nor deny access via a public thoroughfare to adjoining property, as the same does not exist, and all easements will be re-affirmed or re-granted and thus utility services will not be effected by the vacation.
[Exhibit S].
14. When the Petition was filed, Fremont County had duly adopted Subdivision Regulations which had been in place since January, 2002. [Judicial Notice of Facts]. The regulations included the following provisions:
Chapter I, Section 2. Authority. The regulation and control of the subdivision of land within the unincorporated areas of Fremont County are vested in the Fremont County Board of County Commissioners by Wyoming Statutes (1997 Edition) Title 18, Chapter 5, Section 101 through Section 315.
* * *
Chapter I, Section 4. Definitions. For the purposes of these regulations, certain words, terms and phrases as used herein shall have the following meanings:
* * *
Plat – A map of a subdivision.
* * *
Subdivision – Means the creation or division of a lot, tract, or parcel or other unit of land for the immediate or future purpose of sale, building development or redevelopment, for residential, recreational, industrial, commercial or public uses. The word “subdivide” or and derivative thereof shall have reference to the term subdivision, including mobile home courts, the creation of which constitutes a subdivision of land.
* * *
Chapter II, Section 8. Vacation of a Plat of Record. A subdivider or land owner may make application to the Planning Commission to vacate any plat or portion thereof under the following conditions:
(1) The plat to vacated [sic] is a legal plat of record.
(2) Vacation of the subdivision will not interfere with the development of, nor deny access via a public thoroughfare to, adjoining properties, utility services or other improvements.
(b) Procedure – The land owner(s) shall present a “petition for vacation” to the Planning Department properly signed and executed. The document will be submitted to the Planning Department a sufficient length of time before the Planning Commission meeting where the request is to be reviewed in order for the Planning Department to review the vacation request and prepare a list of adjacent landowners. Adjacent landowners will be notified at least two (2) weeks prior to the meeting, of the time and place of the Planning Commission where the vacation request will be reviewed. The Planning Commission shall review the petition and send its recommendation to the Board of County Commissioners. The Board of County Commissioners shall approve or deny the petition. If the petition is approved, it shall then be recorded in the office of the County Clerk and recorded. All fees for the recording of such vacation shall be paid for by the landowner(s) of the vacated plat.
[Judicial Notice of Facts].
15. The Fremont County Planning Commission considered the Petition to Vacate the O’Brien Subdivision on June 24, 2004. [Exhibit E]. The Planning Commission minutes recite:
O’Brien Subdivision Lot owner Rick Sollars representing all the land owners in the O’Brien Subdivision, some of which were present, presented the vacation documents. Commissioner Frank asked Why? Mr. Sollars stated that they wanted out of the subdivision so they could be treated fairly regarding tax exemptions for agriculture ….
Eileen Oakley, County Assessor, asked: “What is to prevent next week un-subdividing the subdivision you approved tonight?” Mrs. Oakley continued that all assessment is based on market value except agriculture. Agriculture is based on production. However, an agriculture exemption cannot be applied for if the property is within a platted subdivision. Qualifications for agriculture exemptions changed several years ago.
[Exhibit E]. The Planning Commission recommended to the Board of County Commissioners “this Petition to Vacate O’Brien Subdivision not be approved.” [Exhibit E].
16. Notwithstanding the recommendation of the Planning Commission, the Fremont County Commissioners approved the Petition at a hearing held July 20, 2004. [Board Exhibit 1]. The Approval simply recites, “[i]t is hereby determined that all of the legal and procedural requirement [sic] to vacate a subdivision as are contained in Section 8 of the Fremont County Subdivision Regulations have been met and complied with.” [Board Exhibit 1]. No party introduced a copy of the Fremont County Subdivision Regulations into the record.
17. Between July 19 and August 10, 2004, the owners of all eight lots of the O’Brien Subdivision executed revised Protective and Restrictive Covenants. [Exhibit F]. The revised covenants recite that the “land described herein was previously known as the O’Brien Subdivision,” and that the revised covenants “replace and supercede” the previously recorded restrictive covenants. [Exhibit F, Section XIV].
18. The revised Protective and Restrictive Covenants included amendments to provide for agricultural use. For example, the purpose provision was amended to refer to “attractive living for residential and agricultural purposes only.” [Exhibit F, Section I], (emphasis added). The restrictions on enterprises were modified by the sentence, “This provision shall not prohibit the use of a parcel of land within the denoted area for grazing and pasturing livestock in the manner provided above, growing hay or raising crops for sale.” [Exhibit F, Section VII].
19. The revised Protective and Restrictive Covenants also included an express reference to the O’Brien Home Owners’ Association, which was vested with authority to appoint members of the Architectural Control Committee for the eight lots. [Exhibit F, Section II]. As in the original covenants, the Architectural Control Committee has the right to regulate the keeping of pets, horses, cattle, sheep, and game birds. [Exhibit D, Section V; Exhibit F, Section V]. Both sets of covenants prohibited the keeping of domestic fowl, and required all corral and feed areas to “be maintained so they are not objectionable and a nuisance to the neighbors.” [Exhibit D, Section V; Exhibit F, Section V].
20. On August 17, 2004, the County Clerk recorded the Petition to Vacate [Exhibit S], the Commissioners’ Approval [Board Exhibit 1], and the revised Protective and Restrictive Covenants. [Exhibit F].
21. Taxpayers later joined the owners of the other seven lots in signing a Quit Claim Deed for the O’Brien Road. [Exhibit T]. The quit claim deed identifies the individual owners of the eight lots as grantors and the O’Brien Owners’ Association, Inc., as grantee, and includes a description of the O’Brien Road. [Exhibit T]. The quit claim deed was recorded with the Fremont County Clerk on November 8, 2004. [Exhibit T]. Taxpayers were told the quit claim deed was necessary to provide access for the lots which did not have access to North Second Street. Charlotte Alley understood the quit claim deed for O’Brien Road was necessary to allow vacation of the subdivision. [October 10, 2006 Hearing Tape].
22. The record includes no information to establish that the O’Brien Home Owners Association referenced in the revised Protective and Restrictive Covenants [Exhibit F] and the O’Brien Owners’ Association, Inc., referenced in the O’Brien Road quit claim deed [Exhibit T] are one and the same.
23. The Taxpayers’ mortgage still refers to their property as “Lot 3, O’Brien Subdivision, Fremont County, Wyoming.” [October 10, 2006 Hearing Tape; Exhibit U].
24. In December, 2004, Taxpayers were told by either Sollars or Spriggs that they needed receipts showing at least $500 in agricultural income from the O’Brien property. [October 10, 2006 Hearing Tape]. Amanda Alley accordingly prepared three sequentially numbered receipts, each dated “12-04", reflecting sales of hay to Connie Murray for $400 and Roxanne Snyder for $600, and pasture leasing to Ray Nation for $125. [Exhibit P4].
25. At the supplemental hearing held October 10, 2006, Charlotte Alley, testified Taxpayers were still owed $600 for the hay sold. [October 10, 2006 Hearing Tape]. However, the Assessor did not contest the validity of the $125 pasture lease or the $400 balance of the hay sales, even though it is not clear from the testimony if Ray Nation, who leased pasture from Taxpayers for approximately one month, derives at least $1000 annually from an agricultural operation. [October 10, 2006 Hearing Tape].
26. Generally speaking, the Taxpayers did not separately account for income from the property in the O’Brien subdivision. Their accounting covers their entire agricultural operation and is not segregated by location. [October 10, 2006 Hearing Tape].
27. The Assessor met with the then County and Prosecuting Attorney M. L. Barton on December 28, 2004, to discuss the consequences of the County Commissioners’ approval of the Petition to Vacate under Wyo. Stat. Ann. §34-12-106. [Exhibit G]. Because the County and Prosecuting Attorney expressed an opinion which clearly questions the propriety of the Commissioners’ approval, we quote it in full:
It is clear that the statute is used to allow owners to change the use or designation of property. This could happen where the lots do not sell or one buyer accumulates a large enough interest to justify changing the use of the original subdivision or the viability of the original use has become distorted or inoperable. It is my opinion that this statute is not for vacation of a subdivision that has been sold, developed and is still being used for the purpose designated in the original plat. The vacation of a subdivision in such a situation results in creating a violation of the minimum subdivision requirements that must be met before an owner can divide his property into several lots or parcels. I would refer you to the following statutes for your review in future situations: § 18-5-101 thru § 18-5-306. These statutes are the subdivision statutes that apply to all divisions of land in the State of Wyoming and must their minimum requirements be met. [sic] Examination of the exemption provisions, § 18-5-303, does not appear to provide relief to owners who are attempting to vacate their subdivision plat without any significant change of purpose or reason. Further examination of the statutes shows that § 18-5-305 is posed in mandatory language requiring the Board of Commissioners to enforce the statutes and to implement provisions of and to insure compliance with the intent and purposes of Article 3 Planning and Zoning. Violations shall be enforced with remedies including fines or jail (see § 18-5-314). The statues also specifically allow a Board to enact stricter requirements but they cannot reduce the minimum requirements set by the state legislature.
The act of vacation should not be allowed where the end result is a violation of another statute. It is a common rule that you cannot use one statute to cause a violation of another statute. If the owners could not divide their land without meeting the requirements of § 18-5-306 then they cannot back into the same result by vacating the subdivision plat at a later date. I would recommend that any Board of County Commissioners and or other County Officials be wary of allowing this statute to be used in this manner and act promptly to avoid future issues of this nature.
[Exhibit G, (emphasis in original)]. When the County Commissioners approved the Petition to Vacate, they gave no indication that they had a reasoned basis for ignoring the concerns expressed in Fremont County Attorney Barton’s opinion. [Board Exhibit 1]. When the Assessor subsequently determined the value of the Alley property, she did so in the context of advice of counsel.
28. On April 25, 2005, the Assessor sent Taxpayers an Assessment Schedule listing the total market value of their property as $411,600. Of this amount, $136,700 was for Taxpayers’ land which is the value at issue in this proceeding. [Board Record, Exhibit A, p. 12].
29. Taxpayers applied for agricultural classification for their property on May 5, 2005, using the Fremont County Affidavit for Agricultural Classification 2005 Assessment Year form. [Board Record, Exhibit P, pp. 73-75].
30. Taxpayers filed a Statement To Contest 2005 Property Tax Assessment on May 6, 2005. [Board Record, p. 91].
31. Taxpayers did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification.
32. On May 18, 2005, the Assessor denied the application for agricultural classification, stating the information furnished did not meet the definition for agricultural land set forth in the Wyoming statutes and rules. Using a form letter, the Assessor listed 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 land is not being used or employed, consistent with the land’s size, location and capability to produce.
Activities on the land, which appear agricultural in nature, do not by themselves qualify the land for agricultural assessment.
[Board Record, Exhibit P, p. 72].
33. The denial letter also requested Taxpayers submit additional information which may affect the classification to the Assessor’s office. If they disagreed with the Assessor’s decision, Taxpayers could file a protest with the County Board within 30 days of the assessment notice. [Board Record, Assessor’s Exhibit P, p. 72].
34. The Fremont County Deputy County Assessor Tara Berg testified she was certified as a property tax appraiser by the Department of Revenue (Department). The residential classification of the land was being contested and she believed the classification of the land was correct. [Board Record, Hearing Tape; Exhibit R, p. 84].
35. The Deputy Assessor presented a complete description of Taxpayers’ property. The market value of the property was determined by using the CAMA (Computer Assisted Mass Appraisal) system set forth by the Department. [Board Record, Exhibit B, p. 13].
36. The Deputy Assessor testified that to qualify for agricultural classification, a property must meet the conditions of the statutes and rules which govern agricultural classification. The statutes outline those conditions and Chapter 10 of the Department’s Rules further define the conditions. [Board Record, Hearing Tape, Exhibit I, pp. 40-43].
37. The Deputy Assessor testified 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. Chapter 10 of the Department’s Rules state: “[t]he assessor must consider certain activities which appear to be agricultural in nature and do not by themselves qualify land for the agricultural assessment. The activity, by itself, either does not raise the expectation of monetary incentive consistent with the capability of the land to produce or occurs after the agricultural product have been raised and harvested.” The Assessor must consider all requirements, not just the appearance of the land. [Board Record, Hearing Tape].
38. Ms. Berg testified the next requirement is that the land is not part of a platted subdivision. Taxpayers’ land has been part of a platted subdivision. In her opinion, the land is or should be part of a platted subdivision. Board Record, Hearing Tape; Exhibit E, pp. 22-23; Exhibit R, p. 84].
39. While the vacation of the subdivision plat was approved by the Fremont County Commissioners, Ms. Berg believed the vacation contravened the intent of the statutes on subdivisions. The parcels which make up what was the O’Brien Subdivision were required to be platted to form the subdivision. Those parcels would be required to be platted if they were formed today. Board Record, Hearing Tape; Exhibit G, pp. 37-38; Exhibit R, p. 84].
40. The Deputy Assessor stated this and other parcels included in similar appeals are “non-agricultural land” as defined in Chapter 10, § 3(c)(ii) of the Department’s Rules. The land is in active transition from agricultural 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. [Board Record, Hearing Tape; Exhibit R, p. 84].
41. The Deputy Assessor testified that Rick Sollars, the attorney for the subdivision, stated in his application that they had waited until the subdivision was fully developed and the final lot being built on before beginning the process of vacating the subdivision. She stated the lots were sold as residential lots as reflected by the original covenants. [Board Record, Hearing Tape].
42. The third required condition for agricultural classification is that the owner derive not less than five hundred dollars ($500) from the marketing of agricultural products. [Board Record, Exhibit H, p. 39; Exhibit R, p. 85; Exhibit P, p. 75].
43. The fourth qualification for agricultural classification was quoted by the Deputy Assessor from the statute. “The 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...,” where primarily means chiefly or of the first importance. The Deputy Assessor pointed out Taxpayers’ own covenants established the land was residential with animals and agricultural use being limited. The Deputy Assessor therefore concluded the land’s primary use was residential. The parcel had significant residential improvements as described in the CAMA printouts. [Board Record, Hearing Tape; Exhibit B, p. 33].
44. The Deputy Assessor stated she applied the Department’s rules equally and uniformly. Regardless of the fact people feel they have used property as best they can and produced as much as they can, the land had to meet the standards of a true agricultural operation so everyone is assessed equally. [Board Record, Hearing Tape].
45. The Deputy Assessor prepared a quantitative analysis to determine whether Taxpayers had used their land consistent with the land’s capability to produce. [Board Record, Exhibit R, p. 85]. She first subtracted two acres from Taxpayers’ total acreage of 19.59 acres, in order to account for a residential farmstead as required by the Department’s rules. Rules, Wyoming Department of Revenue, Chapter 10, § 3(c)(iv). [Board Record, p. 42]. She then determined a productive capacity for the remaining 17.59 acres using elements of the methods prescribed by the Department for valuation of all agricultural lands. [Board Record, Exhibit R, p. 85].
46. The Deputy Assessor used the Lander Area Soil Survey to determine the land soil type of Taxpayers’ property. [Board Record, Exhibit R, p. 85; Exhibit J, p. 44]. To do so, she overlaid ownership information on the soil survey map. [Board Record, Exhibit R, p. 85; Exhibit J, p. 44; Exhibit K, p. 45].
47. The Deputy Assessor determined the productive value of Taxpayers’ soil type using the 2005 Ag Land Valuation Study authorized by the Department. [Board Record, Exhibit M, pp. 48-61]. The Deputy Assessor determined: (1) the pertinent Land Resource Area, and (2) the productive class of the land. [Board Record, Exhibit R, p. 85; Exhibit M]. These numbers were then translated into a standard productive range for irrigated crop land, expressed in tons of hay per acre. [Board Record, Exhibit R, p. 85; Exhibit M, p. 54]. The resulting range of production for Taxpayers’ property was from three to four tons per acre. [Board Record, Exhibit R, p. 85; Exhibit M, p. 54]. Using the chart identified by the Deputy Assessor, those values appear for Land Resource Area 4-5, Class III. [Board Record, Exhibit M, p. 54].
48. The Deputy Assessor next multiplied Taxpayers’ total acreage of 17.59 acres (exclusive of farmstead), times the low end of expected production per acre of three tons per acre, to reach an expected total production of 50 tons, rounded down. [Board Record, Exhibit R, p. 85]. She then multiplied this expected total tonnage by a low revenue estimate of $70 per ton of hay, to reach an expected total of $3,500 revenue for Taxpayers’ property. [Board Record, Hearing Tape; Exhibit R, p. 85].
49. The Deputy Assessor testified she had reviewed the records of other small acreage parcels between 5 and 20 acres. She stated only five small acreage parcels had an agricultural classification. There were 247 other small acreage parcels classed as residential. The Assessor’s office had consistently and uniformly classified small parcels as residential. [Board Record, Hearing Tape; Exhibit N, pp. 63-64; Exhibit O, pp. 65-71].
50. The Deputy Assessor closed her testimony at the County Board hearing by stating the land did not meet all of the requirements for agricultural classification as it still had the characteristics of a subdivision and was purchased for a residence in a subdivision. [Board Record, Exhibit R, p. 86]. The land did not qualify for agricultural assessment and, therefore, was being valued as residential land.
51. Fremont County Assessor Eileen Oakley, at the supplemental hearing on October 10, 2006, after hearing the additional testimony of Taxpayers Amanda R. Alley and Charlotte Alley, agreed Taxpayer’s parcel met all the criteria in 2005 for agricultural classification except the requirement it may not be in a platted subdivision. She asserted the property is within a platted subdivision as that term is defined by the Department Rules. She argued that once a parcel is part of a platted subdivision, under a literal reading of the Department Rules, the parcel can not subsequently be considered agricultural even if the subdivision is properly vacated. She also asserts that under Wyo. Stat. Ann. § 34-12-106, once all lots in a platted subdivision are sold, the plat can not be vacated. [October 10, 2006 Hearing Tape].
CONCLUSIONS OF LAW: PRINCIPLES OF LAW
52. The 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. Ann. § 39-11-102.1(c)(iv).
53. The Board’s Rules provide:
[T]he Petitioner shall have the burden of going forward and the ultimate burden of persuasion, which burden shall be met by a preponderance of the evidence ….
Rules, Wyoming State Board of Equalization, Chapter 2 § 20.
54. The Board, in interpreting a statute, follows the same guidelines as a court:
We read the text of the statute and pay attention to its internal structure and the functional relationship between the parts and the whole. We make the determination as to meaning, that is, whether the statute’s meaning is subject to varying interpretations. If we determine that the meaning is not subject to varying interpretations, that may end the exercise, although we may resort to extrinsic aids to interpretation, such as legislative history if available and rules of construction, to confirm the determination. On the other hand, if we determine the meaning is subject to varying interpretations, we must resort to available extrinsic aids.
General Chemical v. Unemployment Ins. Comm’n, 902 P.2d 716, 718 (Wyo. 1995).
‘Determining the lawmakers’ intent is our primary focus when we interpret statutes. Initially, we make an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe together all parts of the statute in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous. We will not construe statutes in a manner which renders any portion meaningless or produces absurd results.’ In re WJH, 2001 WY 54, ¶ 7, 24 P.3d 1147, ¶ 7 (Wyo. 2001).
TPJ v. State, 2003 WY 49, ¶ 11, 66 P.3d 710, 713 (Wyo. 2003).
55. The Board considers the omission of certain words intentional on the part of the Legislature, and we may not add omitted words. “[O]mission of words from a statute is considered to be an intentional act by the legislature, and this court will not read words into a statute when the legislature has chosen not to include them.” BP America Production Co. v. Department of Revenue, 2005 WY 60 ¶ 22, 112 P.3d 596, 607 (Wyo. 2005), quoting Merrill v. Jansma, 2004 WY 26, ¶ 29, 86 P.3d 270, 285 (Wyo. 2004). See also Parker v. Artery, 889 P.2d 520 (Wyo. 1995); Fullmer v. Wyoming Employment Security Comm’n., 858 P.2d 1122 (Wyo. 1993). The language which appears in one section of a statute but not another, will not be read into the section where it is absent. Matter of Adoption of Voss, 550 P.2d 481, 485 (Wyo. 1976).
56. It is an elementary rule of statutory interpretation that all portions of an act must be read in pari materia, and every word, clause and sentence of it must be considered so that no part will be inoperative or superfluous. Also applicable is the oft-repeated rule it must be presumed the Legislature did not intend futile things. Hamlin v. Transcon Lines, 701 P.2d 1139, 1142 (Wyo. 1985).
57. 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.”
58. 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).
59. 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).
60. 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).
61. The Department Rules contain a 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).
62. The Department 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).
63. 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).
64. 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.
65. The Wyoming statutes pertaining to vacation of a subdivision include:
Vacation; generally.
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.
Wyo. Stat. Ann. § 34-12-106.
Vacation; duty of county clerk.
The county clerk, in whose office the plats aforesaid are recorded, shall write in plain, legible letters across that part of said plat so vacated, the word "vacated", and also make a reference on the same to the volume and page in which the said instrument of vacation is recorded.
Wyo. Stat. Ann. § 34-12-110.
CONCLUSIONS OF LAW - APPLICATION OF PRINCIPLES OF LAW
66. In this appeal, the sole statutory requirement at issue is whether “[t]he land is not part of a platted subdivision.” Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(II). The County Assessor, at the supplemental hearing on October 10, 2006, conceded the Alley property met three of the four required criteria for agricultural classification. She agreed the present use and employment of 17.59 acres the Alleys’ land was for an agricultural purpose, Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(I); the statutory minimum gross revenue had been derived from the 17.59 acres, Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(III); and the 17.59 acres were being used consistent with their size, location and capability to produce, Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV). She continued to assert, however, the property did not meet the second criterion, Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(II).
67. The Department’s Rules define “platted subdivision”as:
Platted subdivision” [sic] 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). “Platted subdivision” is not otherwise defined in Wyoming statutes, although “subdivision” is defined in statutes providing for approval of subdivisions by boards of county commissioners:
“Subdivision” means the creation or division of a lot, tract, parcel or other unit of land for the immediate or future purpose of sale, building development or redevelopment, for residential, recreational, industrial, commercial or public uses. The word “subdivide” or any derivative thereof shall have reference to the term subdivision, including mobile home courts, the creation of which constitutes a subdivision of land.”
Wyo. Stat. Ann. § 18-5-302(a)(vii); see generally Wyo. Stat. Ann. § 18-5-301 et seq. The Fremont County Subdivision Regulations use this same definition. Findings, ¶ 14. We note the Department’s definition does not conflict with the subdivision regulation statute or the Fremont County Regulations.
68. The Department’s definition takes a retrospective view. Its operative words are “creation” and “division.” The Rule accordingly directs the County Assessor to determine whether (1) the property is identifiable as a unit of land which 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.
69. Stated another way, any modification to the status of Taxpayers’ property as Lot 3 in the O’Brien Subdivision occurred after the subdivision was created. The Department’s Rule ignores any post-creation modification of the platted subdivision status. Once land is platted, the Department concluded, by rule, such status is maintained going forward even if a plat may be subsequently validly vacated.
70. The requisite acts of creation and/or division occurred with respect to the O’Brien Subdivision. Taxpayers’ property is identifiable as a unit of land which was created as a lot among other units of land, and part of a subdivision, and for residential purposes. Findings, ¶ 4. The subdivision so created received the approval of the governing body in whose jurisdiction the property resided at the time of creation. Findings, ¶ 4. The division of property into lots was recorded in the records of the county clerk. Findings, ¶ 7. Taxpayers’ property is included in a platted subdivision within the meaning of the Department’s Rule.
71. Our analysis, however, does not end here as Taxpayers argue that even if their property was once part of the O’Brien Subdivision, the Fremont County Commissioners vacated the subdivision. Findings, ¶ 16. On the premise the subdivision no longer exists, they argue their property literally “is not part of a platted subdivision.” We conclude the facts do not support this argument.
72. There is considerable reason to doubt the subdivision was properly vacated due to the difference between the Fremont County Subdivision Regulations and the statutes providing for the vacation of subdivision plats. Taxpayers originally joined in a Petition to Vacate under the authority of both Wyo. Stat. Ann. § 34-12-106 and Chapter II, Section 8 of the Fremont County Subdivision Regulations. Findings, ¶ 13. In approving the Petition, the County Commissioners relied only on Section 8. The Commissioners made no reference to Wyo. Stat. Ann. § 34-12-106. Findings, ¶ 16.
73. The principal 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.
Wyo. Stat. Ann. § 34-12-106. This section is accompanied by certain authorizations and restrictions concerning streets, alleys, public highways and public grounds, and certain obligations of the county clerk. Wyo. Stat. Ann. §§ 34-12-107, 108, 109, 110. None of the statutes provides for action of any sort by a board of county commissioners.
74. The source of authority on which the County Commissioners may rely to act with regard to vacating a subdivision must be found within the statutes specifically identified by Chapter I, Section 2 of the Fremont County Subdivision Regulations, i.e., Wyoming Statutes (1997 Edition) Title 18, Chapter 5, Section 101 through Section 315. The referenced provisions concern county planning commissions, Wyo. Stat. Ann. §§ 18-5-101 through 107, county planning and zoning commissions, Wyo. Stat. Ann. §§ 18-5-201 through 208, and the regulation and control of real estate subdivisions, Wyo. Stat. Ann. §§ 18-5-301 through 315. None of the referenced sections directly provide authority to a board of county commissioners to control whether or how a subdivision may be vacated.
75. At the same time, the statutes relating to planning and subdivision control may fairly be read to empower a board of county commissioners to assure that any action related to a subdivision is scrutinized by a county’s planning process. Chapter II, Section 8(b) of the Fremont County Subdivision Regulations is consistent with this authority. See Findings, ¶ 14.
76. The subdivision regulation statutes do not supplant the plain language of Wyo. Stat. Ann. § 34-12-106, which provides no role for a board of county commissioners when the proprietor of a plat, whether or not in conjunction with owners of a lots in the plat, wishes to vacate. The statute only requires 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.” Wyo. Stat. Ann. § 34-12-106.
77. The Board Record does not include the written instrument required by Wyo. Stat. Ann. § 34-12-106. Nor does the Board Record include evidence that the county clerk has marked the recorded plat with the words “vacated,” as required by Wyo. Stat. Ann. § 34-12-110. To the contrary, the only evidence with regard to the plat gives no indication it has been vacated. Findings, ¶ 7. Taxpayers’ mortgage likewise bears no indication that the plat has been vacated. Findings, ¶ 21.
78. The Petition to Vacate submitted to the Fremont County Commissioners and subsequently recorded with the Fremont County Clerk simply makes a request for approval of the vacation action by the Commissioners. Findings, ¶ 13. The Petition does not itself make the declaration required by Wyo. Stat. Ann. § 34-12-106.
79. There is, in fact, some question whether the statute which provides a procedure to vacate a plat is applicable when 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 proprietor based upon the language which indicates the owners must join “in the execution of the writing aforesaid.” The “writing aforesaid” can only refer to the written statement declaring vacation which the original proprietor is 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 proprietor stills own a portion thereof. Once all lots have been sold, the original proprietor no longer owns any interest in the platted property, and the vacation statute becomes 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.
80. The Board believes there are sound policy reasons for interpreting Wyo. Stat. Ann. § 34-12-106 as inapplicable to a subdivision, such as the one at issue, in which all of the lots have been sold and developed for residential use. 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-).
81. The proprietor who created the O’Brien Subdivision secured benefits related to the location of the O’Brien Subdivision as originally approved pursuant to the subdivision regulations in effect in 1991. Findings, ¶ 14. While the Fremont County Commissioners may have approved Taxpayers’ request to vacate the subdivision, the fact remains that the residential density of Fremont County was modified by the creation of the subdivision, and Fremont County remains indefinitely obliged to provide government services in a manner which accounts for this revised density. Although “Mr. Sollars stated that [all of the owners of lots in the subdivision] wanted out of the subdivision so they could be treated fairly regarding tax exemptions for agriculture,” Findings, ¶ 15, the Board is not persuaded that it is fair for Taxpayers to secure the increased governmental services associated with residential subdivision density while avoiding associated tax burdens.
82. The size of the parcel at issue is 19.59 acres. Findings, ¶ 1. Because it was less than forty acres, Taxpayers were obliged to provide proof to the Assessor their parcel size should be classified agricultural. Rules, Wyoming Department of Revenue, Chapter 10, § 3(c)(x); Conclusions, ¶ 50. Such proof turned entirely on the claim that the subdivision had been vacated. We conclude that the Taxpayers failed to provide such proof to the Assessor.
83. Even if the O’Brien Subdivision had been properly vacated, we doubt Taxpayers can achieve the result they wish, for reasons related to the opinion of the Fremont County Attorney. Findings, ¶ 27. The O’Brien Subdivision, as platted, encompassed 156 acres divided into eight lots, each of which was sold, so that each specifically described lot had a separate identified owner. [Exhibits C & K]. If the subdivision plat were vacated, the lot descriptions disappear even though the lot owners retain their ownership interests. “The effect of vacating the plat was to cancel the description of property contained therein by lot and block number and to vacate that part of the alley at the back of the lots.” Abbate v. Shelden Land Co., 7 N.W.2d 97, 100 (Mich. 1942). The record gives no indication that Taxpayers or their neighbors considered the nature of the interests which result once a subdivision is vacated.
84. The Board believes the most likely legal and equitable result of vacating the subdivision would be that all owners become tenants in common, and thus each hold an undivided percentage interest in the entire 156 acres equal to the proportion his or her prior lot size bears to the entire 156 acres. Vacating a subdivision cancels the legal description using a lot designation, however such action clearly cannot divest owners of property rights. Taxpayers would thus own a 19.59/156 interest in the entire parcel as tenants in common with all other owners. As tenants in common, each owner has an equal right of possession and use, not to any lot defined in the O’Brien Subdivision plat, but to the entire 156 acre parcel:
A tenancy in common is a form of ownership in which each cotenant owns a separate fractional share of undivided property. The property may be owned in equal or unequal undivided shares, with each person having an equal right to possess the whole property, but no right of survivorship. Although the estate has a unity of possession, it is owned under separate and distinct titles. [Footnotes omitted].
20 Am. Jur. 2d Cotenancy and Joint Ownership, § 32 (2006).
Tenancy in common. A tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship.
Black's Law Dictionary, p. 1478 (8th ed. 2004)
The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physically undivided part of the entire parcel.
Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 54 (2d ed. 1984).
Tenants in common are persons who hold land or other property by unity of possession. When two or more persons are entitled to land in such a manner that they have an undivided possession, but separate and distinct freeholds, they are tenants in common. Not only is the possession of one the possession of all, but the tenants respectively have the present right to enter upon the whole land, and upon every part of it, and to occupy and enjoy the whole. Fenton v. Miller, 94 Mich. 204, 53 N.W. 957 (1892); Metcalfe v. Miller, 96 Mich. 459, 56 N.W. 16 (1893); Tiffany, The Law of Real Property (3d ed), s 426, p. 212.
Merritt v. Nickelson, 80 Mich. App. 663, 666, 264 N. W. 2d 89, 91(Mich., 1978). See also, Osborn v. Warner, 694 P.2d 730, 732 (Wyo. 1985) (“Tenants in common have equal rights of possession and one cotenant cannot establish a homestead right as against the interests of other cotenants”).
85. We doubt that such a result would be acceptable to either the individual owners or the institutions which hold their mortgages. We anticipate the individuals would each require ownership and control over a specified portion of the vacated parcel on which their homes and other improvements are presently located, that is, to the lots as delineated in the subdivision plat. To achieve this result, all the owners as tenant in common, as grantors, would have to execute separate deeds carving out a portion of the 156 acre parcel to each individual owner, as a grantee.
86. The effect of such transfers would be division of the 156 acre parcel for residential purposes. Such activity is by statute a “subdivision” subject to all the Wyoming subdivision statutory requirements, Wyo. Stat. Ann. §§ 18-5-301 through 18-5-315, including the requirement the entire parcel be platted, Wyo. Stat. Ann. §§ 18-5-306. To avoid a violation of statute and the Fremont County Subdivision Regulations, the property would once again have to become a platted subdivision.
87. Vacating the plat would also divest the public of any rights in O’Brien Road. The owners of Lots 2, 3, 5, 6, 7, and 8 thus would have no legal access to O’Brien Road in the absence of easements granted by the owners of the parcels on which O’Brien Road lies. All of the owners in the O’Brien Subdivision did, in fact, execute and record a quit claim deed describing O’Brien Road in an apparent attempt to address the access issue. [Exhibit T]. The efficacy of such deed to grant the desired access is, however, questionable for two reasons.
88. First, the entity to which the road is transferred is neither the public nor Fremont County, but rather the O’Brien Owners’ Association, a private entity whose members are apparently only the property owners who signed the deed as grantors. Transfer of the road to this entity does not grant public rights in the road.
89. Second, there is a question as to whether the reservation of an ingress, egress and utility easement is limited to the signatory grantors, or benefits successor owners as well. The reservation in the quit claim deed contains no reference to any successor owner acquiring property from a current owner/grantor of, in particular, Lots 5, 6, 7, and 8. Reference to such successors is one of the most important indicators an easement is “appurtenant” and thus benefit subsequent owners rather than an easement “in gross” which would not transfer for use by subsequent owners. R.C.R., Inc v. Rainbow Canyon, Inc., 978 P.2d 581, 586 (Wyo. 1999); Hasvold v. Park County School District Number 6, 45 P.3d 635, 640, 2002 WY 65, ¶ 21 (2002); Pokorny v. Salas, 81 P.3d 171, 178, 2003 WY 159, ¶ 25 (2003); Lozier v. Blattland Investments, LLC, 100 P.3d 380, 384, 2004 WY 132, ¶ 11 (2334). If the easement is in fact determined to be “in gross”, any successor owner of Lots 5, 6, 7, and 8, in order to have access to a public road, would need an easement granted by either the owner of the road, the Association, or by all of the then current owners of all affected property. A single owner or the Association might thus be able to significantly impede any sale of Lots 5, 6, 7, and 8, by refusing to grant an access easement. This lack of access may well affect the value and even the marketability of Lots 5, 6, 7, and 8. Such a possibility may also be of concern to Taxpayers in this appeal, who occupy Lot 3, because they use O’Brien Road to reach the public highway. Findings, ¶ 9.
90. One final matter requires attention. Amanda Alley and Charlotte Alley, during the supplemental hearing, both stated one reason for their interest in acquiring agricultural classification for their O’Brien property was their understanding a neighbor, Richard H. Bird, whose property was not in any subdivision, was allowed agricultural classification on a parcel smaller then Taxpayers’ parcel. [October 10, 2006 Hearing Tape].
91. The Bird property is a 15.18 acre parcel located south of Taxpayers’ property. [Exhibit K]. There is no evidence either by testimony or exhibits in the Board Record to indicate if, in fact, this property has agricultural classification, nor how the 15.18 acre parcel was created without being located in a subdivision. The Wyoming subdivision statutes, prior to being amended effective July 1, 2001, defined a “subdivision” as division of a parcel into three or more parcels. Chapter 208, § 1, Sessions Law of Wyoming, 2001. It is therefore possible the Bird parcel was carved out of a larger parcel prior to July 1, 2001, and the then applicable statutes did not mandate compliance with the subdivision requirements. The classification of the Bird parcel, and the reasons for such classification, have no bearing on the classification of Taxpayers’ property at issue.
92. We conclude Taxpayers have not fulfilled their burdens of going forward or ultimate burden of persuasion that the property in question qualifies for agricultural classification.
ORDER
IT IS THEREFORE HEREBY ORDERED the decision of the Fremont County Assessor denying the Taxpayers’ request for agricultural classification of the property at issue 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 December, 2006.
STATE BOARD OF EQUALIZATION
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Alan B. Minier, Chairman
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Thomas R. Satterfield, Vice-Chairman
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Thomas D. Roberts, Board Member
ATTEST:
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Wendy J. Soto, Executive Secretary