BEFORE THE STATE BOARD OF EQUALIZATION
FOR THE STATE OF WYOMING
IN THE MATTER OF THE APPEAL OF )
RICK AND MONICA SOLLARS FROM )
A VALUATION DECISION OF THE ) Docket No. 2006-89
FREMONT COUNTY ASSESSOR )
2006 PROPERTY VALUATION )
IN THE MATTER OF THE APPEAL OF )
RAY AND TRINA NATION FROM )
A VALUATION DECISION OF THE ) Docket No. 2006-90
FREMONT COUNTY ASSESSOR )
2006 PROPERTY VALUATION )
IN THE MATTER OF THE APPEAL OF )
TONY AND CINDY SPRIGGS FROM )
A VALUATION DECISION OF THE ) Docket No. 2006-91
FREMONT COUNTY ASSESSOR )
2006 PROPERTY VALUATION )
IN THE MATTER OF THE APPEAL OF )
GERHARDT AND LOIS REINS FROM )
A VALUATION DECISION OF THE ) Docket No. 2006-92
FREMONT COUNTY ASSESSOR )
2006 PROPERTY VALUATION )
IN THE MATTER OF THE APPEAL OF )
STEVEN AND CORALEE OSBORN FROM )
A VALUATION DECISION OF THE ) Docket No. 2006-93
FREMONT COUNTY ASSESSOR )
2006 PROPERTY VALUATION )
IN THE MATTER OF THE APPEAL OF )
AMANDA ALLEY FROM )
A VALUATION DECISION OF THE ) Docket No. 2006-94
FREMONT COUNTY ASSESSOR )
2006 PROPERTY VALUATION )
RICHARD AND GLENDA HLAVNICKA )
FROM A VALUATION DECISION OF THE ) Docket No. 2006-95
FREMONT COUNTY ASSESSOR )
2006 PROPERTY VALUATION )
IN THE MATTER OF THE APPEAL OF )
PATRICK AND KAREN WENDT FROM )
A VALUATION DECISION OF THE ) Docket No. 2006-96
FREMONT COUNTY ASSESSOR )
2006 PROPERTY VALUATION )
FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER
APPEARANCES
Docket No. 2006-89 - Rick and Monica Sollars (Sollars or Taxpayer) appearing pro se.
Docket No. 2006-90 - Ramon A. and Trina R. Nation (Nation or Taxpayer) appearing pro se.
Docket No. 2006-91 - Rick L. Sollars, Western Law Associates, P.C., on behalf of Tony and Cynthia Spriggs (Spriggs or Taxpayer).
Docket No. 2006-92 - Gerhardt J. & Lois L. Reins (Reins or Taxpayer) appearing pro se.
Docket No. 2006-93 - Steven E. and Coralee Osborn (Osborn or Taxpayer) appearing pro se.
Docket No. 2006-94 - Amanda Alley did not appear.
Docket No. 2006-95 - Richard and Glenda Hlavnicka (Hlavnicka or Taxpayer) appearing pro se.
Docket No. 2006-96 - Patrick and Karen Wendt, (Wendt or Taxpayer) appearing pro se.
James Whiting, Deputy Fremont County and Prosecuting Attorney, appearing on behalf of Eileen Oakley, Fremont County Assessor (Respondent or Assessor).
STATEMENT OF THE CASE
This matter is before the State Board of Equalization (State Board) as the result of a request by the Fremont County Board of Equalization filed August 14, 2006, pursuant to Rules, Wyoming State Board of Equalization, Chapter 2, § 36, that the appeal by each Taxpayer 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 each Taxpayer from the Assessor’s agricultural classification denial is before this Board the same as an initial appeal pursuant to Rules, Wyoming State Board of Equalization, Chapter 2. The State Board consolidated the eight appeals by order dated September 19, 2006.
A hearing before the Board consisting of Chairman Alan B. Minier, Vice Chairman Thomas R. Satterfield, and Board Member Thomas D. Roberts, pursuant to order dated September 26, 2006, was held November 15 and 16, 2006, in the Fremont County Commissioners’ office, Lander, Wyoming.
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). Each Taxpayer’s assessment schedule was dated May 10, 2006. Sollars’ protest was filed with the County Assessor on May 26, 2006. Nation’s protest was filed with the County Assessor on May 31, 2006. The protests of Spriggs, Reins, and Osborn were filed with the County Assessor on June 6, 2006. Alleys’ protest was filed with the County Assessor on June 8, 2006. Hlavnicka’s and Wendt’s protests were filed with the County Assessor on June 9, 2006. Each Taxpayer’s appeal is timely.
CONTENTIONS AND ISSUES
Each Taxpayer asserts the County Assessor improperly denied agricultural classification in 2006 for their property. The Board, at the conclusion of the hearing, offered the Taxpayers the opportunity to submit written argument on four issues:
(A) The effect of the vacation of a subdivision on the owners of the individual lots in the subdivision;
(B) The role of a board of county commissioners in the vacation of a subdivision; is Wyo. Stat. Ann. §34-12-106 the exclusive method of vacation, or does Wyo. Stat. Ann. §18-5-315 provide an alternate means;
(C) The necessity of a mortgage holder to participate in the vacation of a subdivision plat; and
(D) The applicability of the provisions of Wyo. Stat. Ann. §39-13-103(b)(x)(B)(IV)(1)-(4).
Nation, Wendt, Sollars, Spriggs, Reins, and the Assessor submitted written arguments on some or all of the noted issues. The assertions raised and the authorities cited in those post-hearing submissions have been addressed in our discussions herein as appropriate.
We affirm the Assessor’s denial of agricultural classification.
FINDINGS OF FACT
1. The Fremont County Board of County Commissioners, on February 12, 1991, approved the plat of the O’Brien Subdivision. [Exhibit 1001. The County Clerk recorded the plat the same day. [Exhibit 1001]. The plat was executed by William Von Holtum, President of Central Bank and Trust, the proprietor and owner of the platted lands. [Exhibit 1001]. The plat indicates eight lots. Lots 1, 2, 3, and 4 lie on the eastern side of the plat, adjacent to North Second Street. [Exhibit 1001]. Lots 5, 6, 7, and 8 lie on the western side of the plat. [Exhibit 1001]. O’Brien Road provided access to the western four lots. [Exhibit 1001]. O’Brien Road runs west from North Second Street between Lot 3 and Lot 2. [Exhibit 1001].
2. The General Notes on the plat state three caveats:
1. No Public Maintenance of O’Brien Road
2. No Proposed Public Sewage Disposal System
3. No Proposed Domestic Water Source
[Exhibit 1001]. The plat thus conformed to various minimum statutory requirements. See, Wyo. Stat. Ann. §§ 18-5-306(a)(iv)(D), (a)(vi)(D), (a)(vii).
3. 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 1001].
4. The plat, as recorded with the county clerk, bears no indication it has been vacated. [Exhibit 1001].
5. 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 1007]. 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 1007]. 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 1007].
6. Rick Sollars is an owner of a parcel of property in the O’Brien Subdivision as well as an attorney licensed to practice law in Wyoming. Sollars presented testimony applicable to all consolidated appeals with regard to the attempted vacation of the O’Brien Subdivision. [Hearing Tape; Exhibits 905, 906].
7. Sollars testified Tony Spriggs, another resident and property owner in the O’Brien Subdivision, called a meeting of the O’Brien Owners Association in the spring of 2004 to discuss agricultural production from various lots in the subdivision as compared to similar property outside the subdivision which was receiving agricultural classification. The parcels outside the subdivision were smaller in acreage and had less production. [Hearing Tape].
8. During this meeting, Sollars noted that property could not be located in a platted subdivision and be allowed agricultural classification. Sollars thereafter, as retained counsel for the Association, drafted a petition to vacate the subdivision, and represented the Association before the Fremont County Planning Commission and the Fremont County Commissioners. [Hearing Tape].
9. Sollars stated he engages in a general law practice. He did not consult with an expert in area of property law with regard to vacation of the subdivision. [Hearing Tape].
10. The owners of all lots of the O’Brien Subdivision executed a Petition to Vacate Subdivision dated June 1, 2004. [Exhibit 1003]. 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 1003].
11. When the Petition was filed with the County Commissioners, Fremont County had duly adopted Subdivision Regulations which had been in place since January, 2002. [Board Exhibit A]. 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.
[Board Exhibit A].
12. Sollars testified he drafted the petition to vacate to comply with both Section 8 of the Fremont County Subdivision Regulations, and Wyo. Stat. Ann. § 34-12-106. He acknowledged the authority cited for the county subdivision regulations did not include Wyo. Stat. Ann. § 34-12-106 which simply requires, to vacate a plat, a document stating such an intent signed by all property owners including the original proprietor, and recorded with the county clerk. Sollars stated he chose to follow the county subdivision regulations rather than simply follow the requirements of Wyo. Stat. Ann. § 34-12-106. [Hearing Tape].
13. The Fremont County Planning Commission considered the Petition to Vacate Subdivision on June 24, 2004. [Exhibit 1002]. 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 1002]. The Planning Commission recommended to the Board of County Commissioners “that this Petition to Vacate O’Brien Subdivision not be approved.” [Exhibit 1002].
14. Sollars stated the Fremont County Planning Commission is an advisory board which makes recommendations to the Fremont County Commissioners. [Hearing Tape].
15. Notwithstanding the recommendation of the Planning Commission, the Fremont County Commissioners approved the Petition to Vacate at a meeting held July 20, 2004. [Exhibit 1004].
....County Attorney Barton also reiterated his concerns expressed during the Planning Commission meeting by stating the vacation may be circumventing the subdivision rules and could be viewed as a way to avoid the subdivision restrictions, specifically, the statutes that require a subdivision plat. He noted that even though the landowners intend to place covenances [sic] on their lots after vacation, there is a difference in that rules, regulations and convenances are enforceable within a subdivision; however, may not be once a plat is vacated....[County Planner Ray] Price indicated his belief that vacating all eight, occupied lots would be a subdivision violation. County Attorney Barton voiced his objection due to his belief the vacation may be in violation of state statute and further stated you cannot use one state statute to violate another state statute. In this case, eight lots have been created that could not have been created without an approved subdivision plat. Following the discussion, Crosby Allen moved, Gary Jennings seconded, to approve the petition to vacate O’Brien Subdivision. Abstaining from the motion: Doug Thompson. Motion carried.
[Exhibit 1006, p. 06]. A written approval prepared by Sollars for the Commission 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.” [Exhibit 1004]. A copy of the Fremont County Subdivision Regulations appear as Board Exhibit A. [Hearing Tape].
16. Sollars chose to present the petition to vacate to the Fremont County Commissioners as he alleges they have authority for subdivisions pursuant to Wyo. Stat. Ann. § 18-5-301. [Hearing Tape].
17. The Assessor met with the then County and Prosecuting Attorney M. L. Barton on December 28, 2004, to discuss the consequences under Wyo. Stat. Ann. § 34-12-106 of the County Commissioners’ approval of the Petition to Vacate. The County and Prosecuting Attorney expressed an opinion, which we quote in full, which clearly questions the propriety of the Commissioners’ approval:
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 intents 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 900]. 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 the opinion by the Fremont County Attorney Barton. [Exhibits 1004, 1006]. When the Assessor subsequently determined the value of each Taxpayer’s property, she did so in the context of advice of counsel. [Hearing Tape].
18. Sollars asserts subdivision regulations are intended to allow for the orderly development of land under governmental authority, thus such philosophy allows a government authority to vacate any subdivision they have approved. Sollars argues the Fremont County Commissioners, under their rules authority, can adopt procedures to vacate a subdivision. [Hearing Tape].
19. Although Sollars argues there are two methods to vacate a subdivision - under Wyo. Stat. Ann. § 34-12-106 or under Section 8 of the Fremont County Subdivision Regulations - he also stated that if the Fremont County Commissioners, as the regulating body, had rejected the petition to vacate, the subdivision could not be vacated pursuant to Wyo. Stat. Ann. § 34-12-106. He does agree a county commission has no role in the vacation procedure under Wyo. Stat. Ann. § 34-12-106. [Hearing Tape].
20. The county clerk is required by statute to write the word “vacated” on any vacated plat or portion thereof. Wyo. Stat. Ann. § 34-12-110. Sollars acknowledged the O’Brien Subdivision plat of record in this matter, [Exhibit 1001], does not contain the term “vacated” anywhere on the plat. He also stated he had not asked the county clerk to mark the plat as “vacated, and had not checked the record of the county clerk’s office to determine whether the plat had been so marked. [Hearing Tape].
21. Sollars, notwithstanding his assertion the O’Brien Subdivision plat has been vacated, argues the metes and bounds description of any lot described on the recorded plat still has force and effect to define the parcel of property owned by each prior lot owner. He does not believe that vacating the subdivision results in each prior lot owner holding an undivided interest in the entire 156 acre parcel which was the O’Brien Subdivision. [Hearing Tape].
22. 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 1008]. 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 1008, Section XIV].
23. 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 1008, Section I - emphasis added]. The restrictions on enterprises were modified by the sentence, “[t]his 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 1008, Section VII].
24. 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 1008, 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 1007, Section V; Exhibit 1008, 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 1007, Section V; Exhibit 1008, Section V].
25. Sollars testified the intent of revising the protective and restrictive covenants to allow agricultural purposes as well as country living was to, in effect, recognize what was actually occurring in the subdivision, that is, growing hay and pasturing livestock within the subdivision. Sollars in addition stated the correct name of the owner’s association is the O’Brien Owners’ Association Inc. Any references in the protective and restrictive covenants to the “O’Brien Homeowners Association” should in fact be read as references to the O’Brien Owners’ Association. [Hearing Tape].
26. On August 17, 2004, the County Clerk recorded the Petition to Vacate [Exhibit 1003], the Commissioners’ Approval [Exhibit 1004], and the revised Protective and Restrictive Covenants. [Exhibit 1008].
27. The owners of all subdivision lots signed a quit claim deed for the O’Brien Road. [Exhibit 1005]. 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 1005]. The quit claim deed was recorded with the Fremont County Clerk on November 8, 2004. [Exhibit 1005].
28. Sollars agrees Exhibit 1005, in the easement reservation, does not include any “successors or assigns” language. The reservation merely references “Grantors.” Sollars asserts the easement is appurtenant to the land, and thus “successors and assigns” language is not necessary. [Hearing Tape].
29. Sollars prepared quit claim deeds for his property and the Spriggs property by which Sollars and his wife appear as both grantors and grantees, [Exhibit 105], and Spriggs and his wife are both grantors and grantees, [Exhibit 305]. Sollars believes he also prepared similar deeds for all of the other owners in what he characterizes as the “former” O’Brien Subdivision. Sollars stated he did not include all owners of property in the “former”O’Brien Subdivision as grantors in the respective quit claims deeds (the “self-to-self”deeds) as he believed, based on his research, none of the other owners had any ownership interest in any other owner’s parcel. [Hearing Tape].
30. The mortgages encumbering the property at issue owned by Sollars (Lot 2); Alley (Lot 3); Spriggs (Lot 4); Nation (Lot 5); Osborn (Lot 6); and Hlavnicka (Lot 7) still contain as legal descriptions a reference lots in the O’Brien Subdivision. [Hearing Tape; Exhibit 901, pp. 01, 05, 12, 27, 42, 50].
31. Each mortgage also states the respective lenders have the right to accelerate and demand payment in full on any sale or transfer of any interest in the mortgaged property. [Exhibit 901, p. 03 ¶ 21; p. 05; p. 22 ¶ 18; p. 37 ¶ 18; p. 43 ¶ 8; p. 58 ¶ 8].
32. Ron Cunningham, the Fremont County University of Wyoming extension agent, presented testimony applicable to all consolidated appeals. He holds a bachelor’s degree in agricultural education from the University of Wyoming, and has been employed by the extension service in Fremont County for twenty-eight and one-half years. [Hearing Tape].
33. Cunningham, as county extension agent, is familiar with hay production in Fremont County, as well as the O’Brien Subdivision as the result of personal observation. He stated all parcels in the subdivision have basically the same general types of grass hay, primarily brome grass. This type of hay goes dormant in the heat of summer, and even with significant irrigation, will not grow sufficiently to justify a second hay cutting. The best use is to graze off any second growth. [Hearing Tape].
34. Cunningham stated that although alfalfa hay normally produces double or even triple the amounts other types of hay, it is not feasible to attempt to cultivate it on the parcels in question. The ground would have to be tilled for two to three years before it could be planted in alfalfa, and even then alfalfa does not do well on ranching areas such as Fremont County. [Hearing Tape].
35. Cunningham further stated that the Wyoming Agricultural Statistics classify grass hay as “other hay.” Production of grass hay in Fremont County for the years 2000-2005 ranged from a low of 1.6 tons per acre in 2000, to a high of 2.7 tons per acre in 2004. [Exhibit 1015]. He indicated the yields for the O’Brien Subdivision properties would be lower than average due to the small field sizes, grass varieties, and high water table. A high water table is noticeable in the drainage ditches and when digging post holes. The higher water level is caused primarily by Coon Creek, the river in the vicinity and the irrigation activity. A high water table increases the pH level which affects both grass hay as well as alfalfa. [Hearing Tape].
36. Rick and Monica Sollars own and reside on 19.7 acres of land located at 2195 North 2nd Street in Fremont County, Wyoming. The property is shown on the O’Brien Subdivision plat in Fremont County, Wyoming as Lot 2. [Exhibits 905, 1001].
37. The Sollars’ 2006 Assessment Schedule indicated a total market value for their property of $447,053. Of this amount, $156,653 was for the Sollars’ land which is the value at issue in this proceeding. [Exhibits 905, 906].
38. The Sollars applied for agricultural classification for their property on May 3, 2006, using the Fremont County Affidavit for Agricultural Classification 2006 Assessment Year form. [Exhibit 907].
39. The Sollars filed a Statement To Contest 2006 Property Tax Assessment on May 26, 2006. [Exhibit 907].
40. The Sollars did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification.
41. The Assessor, on June 9, 2006, denied the Sollars’ 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 only one reason for the denial:
Property has characteristics of a subdivision or is in transition for further development.
[Exhibit 102].
42. The denial letter also requested the Sollars submit additional information which may affect the classification to the Assessor’s office. If they disagreed with the Assessor’s decision, the Sollars could file a protest with the County Board within 30 days of the assessment notice. [Exhibit 102].
43. The Assessor stipulated Sollars has satisfied the requirements of Wyo. Stat. Ann. § 39-13-103(b)(B)(III) for purposes of agricultural classification for 2006. [Stipulation of the Parties].
44. The Sollars and the Assessor have stipulated .9 acres of the Sollars’ property is located within North Second Street, and thus should have a taxable value of zero ($0.00). [Stipulation of the Parties].
45. Sollars testified he raises grass hay on the area outside of his farmstead where his home and out buildings are located. He fertilizes each spring, and uses gated pipe to more effectively irrigate his property. Sollars indicated in 2005 he raised 29.4 tons of grass hay on approximately 16.88 acres. He sold 25.4 tons, [Exhibit 104], and retained 4 tons for his own use. [Hearing Tape].
46. Sollars also leased his property to Tom Read who grazes approximately 20 cow/calf pairs on the second growth of grass hay. Sollars asserts Tom Read’s primary occupation is raising cattle. [Hearing Tape].
47. Ray and Trina Nation own and reside on 18.74 acres at 31 O’Brien Road north of Lander, Wyoming. The property is shown on the O’Brien Subdivision plat in Fremont County, Wyoming as Lot 5. [Exhibits 917, 1001].
48. Nation’s 2006 Assessment Schedule indicated a total market value for their property of $482,120. Of this amount, $151,570 was for Nation’s land which is the value at issue in this proceeding. [Exhibits 917, 918].
49. Nation applied for agricultural classification for their property on May 30, 2006, using the Fremont County Affidavit for Agricultural Classification 2006 Assessment Year form. [Exhibit 921].
50. Nation filed a Statement To Contest 2006 Property Tax Assessment on May 31,2006. [Exhibit 921].
51. Nation did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification.
52. The Assessor, on June 9, 2006, 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 reason for the denial:
Property has characteristics of a subdivision or is in transition for further development.
[Exhibit 200].
53. The denial letter also requested Nation submit additional information which may affect the classification to the Assessor’s office. If they disagreed with the Assessor’s decision, Nation could file a protest with the County Board within 30 days of the assessment notice. [Exhibit 200].
54. Nation testified when he purchased his property he was not exactly sure what he was buying. He liked the covenants on the property and the fact Coon Creek, which runs water year-round, crosses in the southwest portion of the property. He also liked the fact the land was irrigated and had a high production of grass hay. He did not realize he would be paying tax based on a residential classification rather than an agricultural classification. [Hearing Tape].
55. Nation pointed out, using Exhibit 201, that there is a small area in the south west corner of his property which is basically swamp land and can not be used for pasture or hay production. [Hearing Tape].
56. Nation, in 1999, utilizing a cost share program through the Farm Service Agency in which the agency pays 75% of the costs of improvements, spent approximately $15,000 to install gated pipe to irrigate 14 acres. Nation also buried 680 feet of 15 inch pipe to avoid washing out an irrigation ditch on his property. Compared to flood irrigation, the use of gated pipe has reduced by one-half the time required to irrigate the 14 acres. [Hearing Tape].
57. Nation stated to his knowledge the Farm Service Agency requirements to quality for the cost share program concentrated on the use of the land, not on the employment of the land owner. [Hearing Tape].
58. Nation also testified he owns, by patent issued in February, 2005, 20 acres at Fort Washakie. [Exhibit 206]. Nation stated he uses this property primarily as a pasture, irrigating only about 7 acres. [Hearing Tape].
59. Nation estimated, based on the number of bales at approximately 75-80 lb. per bale, he produced 2.6 tons of grass hay per acre on 14 acres. He sold $1428.00 worth of hay in 2005, and retained the remainder to feed his livestock in what he characterized as a basically yearling operation. The Schedule F to his 2005 federal income tax return indicates total farm income of $2546.00. The Assessor agrees the Schedule F income is correct. [Exhibits 203, 204, 921; Hearing Tape].
60. Nation executed and recorded a “self-to-self” quit claim deed as prepared by Rick Sollars. Nation did not notify his mortgage lender of this deed transaction. [Exhibit 202; Hearing Tape].
61. Tony and Cynthia Spriggs own and reside on 19.23 acres at 2171 North 2nd Street north of Lander in Fremont County, Wyoming. The property is shown on the O’Brien Subdivision plat in Fremont County, Wyoming as Lot 4. They purchased the property in 1999. They also purchased 22 acres adjacent to Lot 4 in 2002. This property, however, is not located within the O’Brien Subdivision. This 22-acre parcel does have agricultural classification. Tony Spriggs testified he purchased the 22-acre parcel with a goal of making a profit on his cattle operation. Spriggs also owns a commercial heating, air conditioning and roofing company. [Hearing Tape; Exhibits 902, 1001].
62. Spriggs’ 2006 Assessment Schedule indicated a total market value for their O’Brien Subdivision property of $432,359. Of this amount, $154,169 was for Spriggs’ land which is the value at issue in this proceeding. [Exhibits 902, 903].
63. Spriggs filed a Statement To Contest 2006 Property Tax Assessment on June 6, 2006. [Exhibit 904].
64. Spriggs did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification.
65. The Assessor stipulated Spriggs have satisfied the requirements of Wyo. Stat. Ann. § 39-13-103(b)(B)(III) for purposes of agricultural classification for 2006. [Stipulation of the Parties].
66. Spriggs and the Assessor have stipulated .36 acres of Spriggs’ property is located within North Second Street, and thus should have a valuation of zero ($0.00). [Stipulation of the Parties].
67. Spriggs, in 2004, began to question why his property in the O’Brien Subdivision did not have agricultural classification since his adjacent property outside the subdivision, which was classified as agricultural, was being used for basically the same purpose. Spriggs thus began the discussion of the O’Brien Subdivision classification with Rick Sollars and the other property owners in the subdivision which resulted in the Petition to Vacate the O’Brien Subdivision. [Hearing Tape].
68. Spriggs raises grass hay on the O’Brien Subdivision property. He fertilizes each year at the rate of 280 lbs per acre, has aerated the ground, and has installed gated pipe. The O’Brien property produced 38 tons of hay in 2005, which exceeded the Fremont County average of 1.7 tons per acre for 2005. Spriggs sold 24 tons, and retained 14 tons to feed to the steers he had purchased in September, 2005, after they had been pastured on his adjacent property through December, 2005. [Hearing Tape; Exhibits 301, 302].
69. Spriggs testified he delayed selling his cattle from the fall of 2005 to early 2006 for marketing purposes. He hoped to get a better price for the cattle in January, 2006, than he could get selling cattle in the fall of 2005. [Hearing Tape].
70. Spriggs did notify his mortgage lender with regard to vacation of the subdivision and the resulting deeds. He testified his lender expressed no objection. [Hearing Tape].
71. Gerhardt and Lois Reins own and reside on 18.5 acres at 2209 North 2nd Street near Lander, Wyoming. The property is shown on the O’Brien Subdivision plat in Fremont County, Wyoming as Lot 1. [Exhibits 908, 1001].
72. Reins’ 2006 Assessment Schedule indicated a total market value for their property of $511,875. Of this amount, $282,177 was for Reins’ land which is the value at issue in this proceeding. [Exhibits 908, 909].
73. Reins applied for agricultural classification for their property on June 6, 2006, using the Fremont County Affidavit for Agricultural Classification 2006 Assessment Year form. [Exhibit 910].
74. Reins filed a Statement To Contest 2006 Property Tax Assessment on June 6, 2006. [Exhibit 910].
75. Reins did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification. [Exhibit 910].
76. The Assessor, on June 9, 2006, 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 reason for the denial:
Property has characteristics of a subdivision or is in transition for further development.
[Exhibit 410].
77. The denial letter also requested Reins submit additional information which may affect the classification to the Assessor’s office. If he disagreed with the Assessor’s decision, Reins could file a protest with the County Board within 30 days of the assessment notice. [Exhibit 410].
78. Reins purchased his lot in the O’Brien Subdivision in 1996. At the time of the purchase he was not sure what he was getting although the person who sold him the lot indicated it was classified agricultural. Reins purchased the property to build a home for retirement. He was an absentee owner until 2001 when he built a barn, and thereafter a shop in 2003. He built his home in 2004. [Hearing Tape].
79. In October, 2003, Reins developed an initial 5 Year Agricultural Development Plan for his O’Brien Subdivision property. He has also assessed the manner in which he prices and markets hay. He now sells his grass hay to primarily two buyers utilizing a 5-year average price. [Hearing Tape; Exhibit 400].
80. Reins testified approximately three acres of his property is infested with weeds and foxtail which he is attempting to eradicate by mowing each year. He also has a swamp area which encompasses approximately 1 acre and thus can not be used for any agricultural purpose. [Hearing Tape; Exhibits 406, 407, 408].
81. Reins property also extends to the middle of North Second Street, and has an irrigation ditch approximately 20 feet wide which runs along the entire north boundary of his property. [Hearing Tape].
82. Reins, in 2005, cut and baled 28 tons of grass hay on 10.2 acres which is approximately 2.7 tons per acre. He sold all 28 tons for a total income from hay sales of $2071.00. Any second growth hay Reins intends to lease as pasture. [Hearing Tape; Exhibits 401, 402, 403, 404, 405].
83. Reins argues his production in 2005 of 2.7 tons per acre is better than the 5 - year average (2000-2004) for tons of grass hay per acre in Fremont County of approximately 2.04 as indicated by the Wyoming Agricultural Statistics information. [Hearing Tape; Exhibit 409].
84. Reins, also in 2005, had six horses which he used for pleasure and also developed for sale. He leased 16 acres outside the O’Brien Subdivision as pasture from May to January. He then brings the horses onto the O’Brien property for ease of feeding in January, February, March, and April. [Hearing Tape; Exhibit 411].
85. Steven E. and Coralee Osborn own and reside on 18.36 acres at 39 O’Brien Road north of Lander, Wyoming. The property is shown on the O’Brien Subdivision plat in Fremont County, Wyoming as Lot 6. [Exhibits 923, 1001].
86. Osborn’s 2006 Assessment Schedule indicated a total market value for their property of $326,998. Of this amount, $149,569 was for Osborn’s land which is the value at issue in this proceeding. [Exhibits 923, 924].
87. Osborn applied for agricultural classification for their property on May 30, 2006, using the Fremont County Affidavit for Agricultural Classification 2006 Assessment Year form. [Exhibit 927].
88. Osborn filed a Statement To Contest 2006 Property Tax Assessment on June 6, 2006. [Exhibit 927].
89. Osborn did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification. [Exhibit 927].
90. Steve Osborn, testifying by telephone, stated he irrigates each spring using gated pipe for efficiency. His property is divided by Coon Creek. He irrigates the front area to raise hay. The back section is too wet from irrigation run-off from other property to be used for anything other than grazing, and then usually only winter grazing since otherwise the area is too wet for use by horses or cattle. [Hearing Tape].
91. Osborn stated his only agricultural income in 2005 was $570 from hay sale. He cuts his hay early and has it certified by Fremont County which reduces his income. [Hearing Tape; Exhibit 500].
92. Amanda R., Ralph B. and Charlotte Alley own 19.59 acres located at 5 O’Brien Road. The property is shown on the O’Brien Subdivision plat in Fremont County, Wyoming as Lot 3. [Exhibits 911, 1001].
93. Alley’s 2006 Assessment Schedule indicated a total market value for their property of $459,557. Of this amount, $156,067 was for Alley’s land which is the value at issue in this proceeding. [Exhibits 911, 912].
94. Alley filed a Statement To Contest 2006 Property Tax Assessment on June 8, 2006. [Exhibit 915].
95. Alley did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification.
96. Neither Amanda Alley, Ralph Alley or Charlotte Alley appeared at the State Board hearing in Lander on November 15 and 16, 2006. [Hearing Tape].
97. Richard and Glenda Hlavnicka own and reside on 19.84 acres at 23 O’Brien Road north of Lander, Wyoming. The property is shown on the O’Brien Subdivision plat in Fremont County, Wyoming as Lot 7. They purchased the lot as vacant property in 1993. [Hearing Tape; Exhibits 929, 1001].
98. Hlavnicka’s 2006 Assessment Schedule indicated a total market value for their property of $318,759. Of this amount, $157,389 was for Hlavnicka’s land which is the value at issue in this proceeding. [Exhibits 929, 930].
99. Hlavnicka applied for agricultural classification for their property on June 5, 2006, using the Fremont County Affidavit for Agricultural Classification 2006 Assessment Year form. [Exhibit 933].
100. Hlavnicka filed a Statement To Contest 2006 Property Tax Assessment on June 9, 2006. [Exhibit 933].
101. Hlavnicka did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification. [Exhibit 933].
102. Hlavnicka believes he meets all the required criteria for agricultural classification, particularly since he has over $500.00 in income for 2005 from the sale of hay. He raises hay on only 7 acres with the remaining property used to pasture calves which he purchases in the spring and then usually sells in the fall, generally November. Sometime he holds the calves over into the next year before selling them. Hlavnicka also has five horses which are used for pleasure. [Hearing Tape].
103. Hlavnicka stated the 7 acres of the O’Brien Subdivision property yielded 21 tons of hay in two cuttings in 2005. Hlavnicka sold 8 tons for $580.00, and kept the remainder for his own use. He generally tries to keep at least a year’s worth of hay available to feed his livestock. He did not sell any calves in 2005, thus the only income indicated on his IRS Schedule F for 2005 is $580.00 for the sale of hay. [Hearing Tape; Exhibit 933, p. 7].
104. Hlavnicka testified he also has installed buried pipe and uses gated pipe for irrigation. He also identified a waste water ditch approximately 45 feet in width which runs along the entire west edge of his property. [Hearing Tape].
105. Patrick and Karen Wendt own and reside on 19.7 acres at 30 O’Brien Road north of Lander, Wyoming. The property is shown on the O’Brien Subdivision plat in Fremont County, Wyoming as Lot 8. They purchased the lot in 1992 as vacant property. [Hearing Tape; Exhibits 935, 1001].
106. Wendt’s 2006 Assessment Schedule indicated a total market value for their property of $438, 694. Of this amount, $156,653 was for Wendt’s land which is the value at issue in this proceeding. [Exhibits 935, 936].
107. Wendt applied for agricultural classification for their property on May 19, 2006, using the Fremont County Affidavit for Agricultural Classification 2006 Assessment Year form. [Exhibit 939].
108. Wendt filed a Statement To Contest 2006 Property Tax Assessment on June 9, 2006. [Exhibit 939].
109. Wendt did not protest the valuation of buildings and improvements, only the County Assessor’s refusal to give the land an agricultural classification. [Exhibit 939].
110. Wendt asserts his property meets all the required criteria for agricultural classification. He has an irrigation system similar to the other property owners. Wendt testified he can raise hay on only 14 to 15 acres. The remaining property is used as pasture for both cattle and horses since it can not be irrigated. Wendt stated he does not fertilize as he does not want to add nitrates to the soil. [Hearing Tape].
111. The 14 acres used to raise hay yielded 20.3 tons from a first cutting, and 17.6 tons from a second. Wendt sold 20.4 tons of 2005 hay, and 2.5 tons of 2004 hay during 2005 for a total of $1960.50. He retained 17.5 tons of hay to feed his livestock. Wendt also calculated his pasture/livestock production in AUM’s (animal unit months) in 2005 on the 3.7 acres not used to raise hay, and the 15 acres used for grazing hay aftermath. He made those calculations based on his 37 years experience doing dependent property surveys for the Bureau of Land Management. [Hearing Tape; Exhibit 939, p.06].
112. Wendt raises both cattle and horses for sale. Wendt breaks and trains horses for sale as pleasure horses. [Hearing Tape].
113. Wendt also stated his opinion the cooler soil temperatures in the area where his property is located impacts hay growth. He believes the temperatures in his area run as much as ten degrees cooler than in Lander. [Hearing Tape].
114. Wendt, in a post-hearing submission as permitted by the Board, asserts the yields per acre relied upon by the Assessor in establishing her benchmark income were to some extent derived from yield estimates based on a high level of management for grass hay for years prior to 1975. Wendt references a table from the Lander Area soil survey developed by the United States Department of Agriculture Soil Conservation Service. This document, however, was not offered into evidence at the hearing, thus any arguments which rely thereon can be given little weight by the Board.
115. Eileen Oakley testified she was the Fremont County Assessor, and was certified as a property tax appraiser by the Wyoming Department of Revenue (Department). [Hearing Tape].
116. The Assessor presented a description of each Taxpayer’s property. The market value of the property improvements on each property was not being disputed, only the land classification. [Hearing Tape; Exhibits 902, 905, 908, 911, 917, 923, 929, 935].
117. The Assessor testified to qualify for agricultural classification a property must meet the conditions of the statutes and rules which govern agriculture valuation. The statutes outline those conditions which are further defined by Chapter 10 of the Department’s Rules. [Hearing Tape; Exhibit 1000].
118. The Assessor testified in order to meet agricultural classification, four qualifications must be met. The initial qualification is that the land be used to produce forage. There are, 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. [Hearing Tape].
119. The Assessor testified she must also consider whether the land is part of a platted subdivision. The Assessor conceded the Fremont County Commissioners had taken action to vacate the O’Brien Subdivision but believed any vacation contravened the intent of the statutes on subdivisions. [Hearing Tape].
120. The Assessor testified the land under appeal had been divided into parcels for sale and development. She also testified that Rick Sollars, representing all of the O’Brien Subdivision owners, stated at the Fremont County Planning Commission that the owners waited until all the lots had been developed before they initiated the vacation process. Sollars, according to the Assessor, told the Planning Commission the owners wanted out of the subdivision in order to be treated fairly and be classified as agricultural land. [Hearing Tape; Exhibit 1000].
121. The Assessor and the then County Attorney, Mike Barton, spoke against vacation of the subdivision at the Planning Commission meeting. [Hearing Tape].
122. The Assessor and Mike Barton as well as Ray Price, the Fremont County Planner spoke against vacation of the subdivision at the Fremont County Commissioner’s meeting. There was very little discussion by the Commissioners of the points raised by the Assessor, Barton, and Price. The main discussion centered on any effect on the irrigation rights if the plat was vacated. There was also no discussion of the mechanics of the vacation process. [Hearing Tape].
123. The Assessor, even after the County Commissioners approved the Petition to Vacate, believed she had a responsibility, as county assessor, to properly assess property and make her own determination as to whether under the statutes and Department Rules the property at issue was “not part of a platted subdivision.” She requested the advice and opinion of the county attorney since he had spoken at both the Planning Commission and County Commissioners meetings. She received his advice by letter written sometime after December 28, 2004. [Hearing Tape; Exhibit 900].
124. The Assessor testified she questioned whether a fully developed subdivision can, in fact, be vacated, and even if it can, whether O’Brien Road could be vacated in light of Wyo. Stat. Ann. § 31-1-101(a)(viii). She also argues all mortgage holders of property within the subdivision would be required to agree to any vacation since she believes they own an interest in the mortgaged property. [Hearing Tape].
125. The Assessor further argues even if the vacation is valid, the property still has characteristics of a subdivision. It contains eight parcels of something less than 20 acres each which are encumbered by covenants, the originals of which limited the property to only residential purposes. The Assessor also asserts, in her opinion, the property meets the requirements of a platted subdivision as defined by the Department Rules to which she must adhere. [Hearing Tape; Exhibit 1000; Exhibit 1013,Wyo. Stat. Ann. § 18-3-204(a)(ix)].
126. The Assessor noted that one criteria for classification as agricultural land is whether the owner of the land has derived annual gross revenue of not less than $500. She agrees each Taxpayer (except Alley) has provided evidence of an annual gross income from agricultural activities in 2005 of at least $500.00. Wyo. Stat. Ann. § 34-13-103(b)(x)(B)(III). [Board Hearing Tape; Exhibits 404, 405, 500, 501, 904, 907, 910, 921, 933, 939].
127. The fourth statutory qualification for agricultural status was quoted by the Assessor: “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 Assessor pointed out the Taxpayers’ own covenants established that the land was residential with animals and agricultural use being limited. The Assessor therefore concluded the land’s primary use was residential. Each parcel had significant residential improvements as described in the CAMA printouts. [Hearing Tape; Exhibits 902, 905, 908, 911, 917, 923, 929, 935, 1007, 1008].
128. The Assessor indicated she applied the Department’s Rules equally and uniformly. Regardless of the fact that 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 to assess everyone equally. [Hearing Tape].
129. The Assessor testified she used a quantitative analysis to determine whether the Taxpayers had used their land for an agricultural purpose and consistent with the land’s capability to produce. She first subtracted two acres from each Taxpayer’s total acreage to account for a residential farmstead as required by the Department’s Rules. Rules, Wyoming Department of Revenue, Chapter 10, § 3(c)(iv). She then determined a productive capacity for the remaining acreage using elements of the methods prescribed by the Department for valuation of all agricultural lands. [Hearing Tape; Exhibits 1000, 1009].
130. The Assessor used the Lander Area Soil Survey to determine the soil type of each Taxpayer’s property. She did this by overlaying the ownership information on the soils map. [Hearing Tape; Exhibits 1016, 1017 ].
131. The Assessor determined the productive value of each Taxpayer’s soil type using the 2006 Ag Land Valuation Study authorized by the Department. To do this, the Assessor determined: (1) the pertinent Land Resource Area, and (2) the productive class of the land. These numbers were then translated into a standard productive range for irrigated crop land, expressed in tons of hay per acre. The resulting range of production was from three to four tons per acre. On the referenced chart, those values appear for Land Resource Area 4-5, Class III. [Hearing Tape; Exhibits 1016, 1017, 1018, 1019].
132. The Assessor, except for the Osborn property, next considered each Taxpayer’s total acreage (exclusive of farmstead), and concluded 17 acres was an appropriate benchmark. She then multiplied 17 acres times the low end of expected production per acre, three tons, which some of the property has produced, to reach an expected total production of 53 tons. She then multiplied this expected total tonnage by a low revenue estimate of $70 per ton of hay, and rounded down to reach an expected total revenue of $3,500 as a gross income benchmark to help determine whether the property was being used in an agricultural purpose consistent with its capability to produce. Wyo. Stat. Ann. § 34-13-103(b)(x)(B)(I), (IV). [Hearing Tape; Exhibits 1016, 1017, 1018, 1019].
133. The Assessor, because the character and use of the Osborn property is significantly different from the other parcels, utilized the hay production calculation for only part of the property, and a grazing capacity for the remainder. The Assessor calculated the hay production area to be 6.46 acres, times 3 tons per acre times $70 per ton to reach a benchmark hay production value of $1356.00 (6.46 x 3 = 19.38 x $70 = $1356.00). The Assessor then calculated a grazing value on 9.9 acres of $137.61, using ½ AUM per acre at $13.90 times 9.9 acres. The total benchmark productive value for the Osborn property is thus $1494. [Hearing Tape; Exhibits 1016, 1017, 1018, 1019].
134. The Assessor testified she, in effect, employed the same process to estimate productive capacity for 2006 which she utilized for 2005. She used this process as it tracks the same thought process the Department uses to value agricultural land. She argued her method was a sound approach to determine value and production. She used this same process to determine whether any small acreage, non-platted property in Fremont County met the statutory productive capability requirement. [Hearing Tape].
135. The Assessor argued none of the Taxpayers, with the exception of Spriggs, had enough 2005 income to reach the agricultural-purpose/capability-to-produce bench mark amount she established to fulfill two of the four criteria for agricultural classification. Wyo. Stat. Ann. § 34-13-103(b)(x)(B)(I), (IV). [Board Hearing Tape]. Sollars, Reins, Alley, Nation, Hlavnicka, and Wendt did not meet the $3500 benchmark. [Exhibits 404, 405, 907, 910, 921, 933, 939]. Osborn did not meet his $1494.00 benchmark. [Exhibits 500, 501].
136. The Assessor did agree Spriggs was excused from meeting the criteria in Wyo. Stat. Ann. § 34-13-103(b)(x)(B)(I), (IV) in 2005 based upon his decision to delay sale of his cattle until the early part of 2006. She agreed Spriggs was actively pursuing an agricultural cattle operation sufficient to allow reliance on Wyo. Stat. Ann. § 34-13-103(b)(x)(B)(IV)(2). She was unwilling to agree to allow taxpayers, such as Nation, Hlavnicka, and Wendt, to count toward 2005 income the proceeds from the sale of one or two cattle in January or February of 2006. She did not believe sales of product in a subsequent year should be allowed to count toward the required benchmark in a prior year. She had legitimate concerns on just how late in the next year sales could be attributed to the prior year simply to show productive capacity use. The Assessor had not received from those Taxpayers any documentation to support their assertion of sales in 2006 of cattle raised in 2005. [Hearing Tape].
137. The Assessor stated she uniformly assesses all small acreages as residential. There are, in the Lander area, 587 parcels between 5 and 20 acres, and only three have agricultural classification. The remainder are valued at market as residential properties. If all subdivisions in Fremont County which contain lots larger than five acres were vacated, there would be approximately 1087 parcels which might argue for agricultural classification. [Board Hearing Tape].
138. The Assessor, in further support of her decision to deny agricultural classification, also pointed out the stated purpose of the original covenants encumbering the O’Brien Subdivision was attractive country living, residential purposes only. [Exhibit 1007, § I]. She pointed out that even the revised covenants which expanded the stated purpose to include agriculture still provide for an Architectural Control Committee which establishes the terms and conditions upon which cattle, sheep and horses are permitted on the property. [Exhibit 1008, §§ II, V]. The revised covenants even appear to prohibit poultry and pets of any kind. [Exhibit 1008, § V]. The Assessor stated that if the property truly had agriculture as a primary purpose, the agricultural activities on the property would not be controlled by the covenants and the Architectural Control Committee. She asserted the thrust of the revised covenants is residential and to control what your neighbors can do notwithstanding the addition of the “agricultural” language. [Hearing Tape].
139. The Assessor asserted the Department Rules require an assessor, in determining what is agricultural land, to consider whether the land is used for the primary purpose of providing gross revenue from agricultural use, with primary being defined as of chief or first importance. [Exhibit 1000, Rules, Wyoming Department of Revenue, Ch. 10, §§ 3(a); (3)(d)]. She asserted while each of the property owners may well be doing a good job managing their land, the primary focus, primary purpose of the land is for residential purposes. [Hearing Tape].
140. In conclusion the Assessor argued that while each Taxpayer’s use of their land may appear to be agricultural, they do not meet all of the requirements for agricultural classification. While the land at issue was agricultural prior to being subdivided, the land was divided into tracts or parcels, and sold for primarily residential use. The parcels at issue were thus correctly valued as residential land. [Hearing Tape; Exhibit R, p. 88;].
CONCLUSIONS OF LAW: PRINCIPLES OF LAW
141. 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).
142. 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.
143. A taxpayer protesting the valuation of local-assessed property must appear before the county board of equalization of the county in which the property is located, or in this case the State Board acting as the finder of fact rather than as an intermediate level of appeal, in order to receive any requested valuation adjustment.
The county assessor shall notify any person whose property assessment has been increased by the county board of equalization of the increase. Any person wishing to contest an assessment of his property shall file not later than thirty (30) days after the date or postmark date of the assessment schedule properly sent pursuant to W.S. 39-13-103(b)(vii), whichever is later, a statement with the county assessor specifying the reasons why the assessment is incorrect. The county assessor shall provide a copy to the county clerk as clerk of the county board of equalization. The county assessor and the person contesting the assessment, or his agent, shall disclose witnesses and exchange information, evidence and documents relevant to the appeal, including sales information from relevant statements of consideration if requested, no later than fifteen (15) days prior to the scheduled county board of equalization hearing. The assessor shall specifically identify the sales information used to determine market value of the property under appeal. A county board of equalization may receive evidence relative to any assessment and may require the person assessed or his agent or attorney to appear before it, be examined and produce any documents relating to the assessment. No adjustment in an assessment shall be granted to or on behalf of any person who willfully neglects or refuses to attend a meeting of a county board of equalization and be examined or answer any material question upon the board's request. Minutes of the examination shall be taken and filed with the county clerk.
Wyo. Stat. Ann. § 39-13-109(b)(i) (emphasis added).
144. 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).
145. 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).
146. 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). See also, TPJ v. State, 2003 WY 49, ¶ 11, 66 P.3d 710, 713 (Wyo. 2003).
147. The Wyoming Constitution, article 15 § 11, requires all property “be uniformly assessed for taxation, and the legislature shall prescribe such regulations as shall secure a just valuation of taxation of all property, real and personal.”
148. The determination of fair market value involves a degree of discretion:
Early on, Justice Blume recognized a truth inherent in the area of property valuation: “There is no such thing as absolute value. A stone cannot be other than a stone, but one man may give a different valuation to a piece of land than another.” Bunten v. Rock Springs Grazing Ass'n, 29 Wyo. 461, 475, 215 P. 244, 248 (1923). Accordingly, this court has consistently interpreted Wyo. Const. art. 15, § 11 to require “only a rational method [of appraisal], equally applied to all property which results in essential fairness.”
Basin Electric Power Coop. v. Dept. of Revenue, 970 P.2d 841, 857 (Wyo.1998) quoting Holly Sugar Corp. v. State Board of Equalization, 839 P.2d 959, 964 (Wyo.1992). The Wyoming Supreme Court has recently reiterated the “rational method” standard. Britt v. Fremont County Assessor, 2006 WY 10, ¶ 18,126 P.3d 117,124 (Wyo. 2006).
149. Broken into its component parts, the constitutional standard requires: (1) a rational method; (2) equally applied to all property; and (3) essential fairness. It is the burden of one challenging an assessment to prove by a preponderance of the evidence that at least one of these elements has not been fulfilled. Basin Electric Power Coop., 970 P.2d at 852.
150. The Wyoming Supreme Court has described the burden of proof for a taxpayer challenging a county assessor’s valuation as follows:
A strong presumption favors the Assessor’s valuation. “In the absence of evidence to the contrary, we presume that the officials charged with establishing value exercised honest judgment 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.” Amoco Production Co. v. Dept. of Revenue, 2004 WY 89, ¶ 7, 94 P.3d 430, 435 (Wyo. 2004). The Britts [i.e., the protesting taxpayers] had the initial burden of presenting evidence sufficient to overcome the presumption. Id., ¶ 8. If the Britts successfully overcame the presumption, then the county board was “required to equally weigh the evidence of all parties and measure it against the appropriate burden of proof.” CIG v. Wyoming Dept. of Revenue, 2001 WY 34, ¶ 10, 20 P.3d 528, 531 (Wyo. 2001). The burden of going forward would then have shifted to the Assessor to defend her valuation. Id. Above all, the Britts bore “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…property.” Id.
Britt, supra, 2006 WY 10, ¶ 23, 126 P.3d at 125.
151. A mere difference of opinion as to value is not sufficient to overcome the presumption in favor of an assessor’s valuation. J. Ray McDermott & Co. v Hudson, 370 P.2d 364, 370 (Wyo. 1962).
152. 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.”
153. 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).
154. 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).
155. 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).
156. 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).
157. 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).
158. 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).
159. 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.
160. The Wyoming statutes pertaining to vacation of a subdivision include:
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.
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
161. Sollars, at the Board hearing in Lander, alluded to an argument that the Assessor, in order to justify denying agricultural classification for the Sollars’ property in 2006, was limited to the single basis stated in her June 9, 2006 denial letter, “[p]roperty has characteristics of a subdivision or is in transition for further development” [Exhibit 102]; and she was thus precluded from arguing any other reasons at the Board hearing. Such an argument implies that to allow the Assessor to assert reasons for denial other than the one set out in her June 9, 2006 letter denies Sollars due process. The actions by the Assessor and the course of proceedings in this matter negate any such argument.
162. The June 9, 2006 denial letter sent by the Assessor specifically requested Sollars submit to the Assessor any additional information which may affect classification of his land: “If you have additional information that may affect this classification please furnish it to the assessor’s office.” [Exhibit 102]. The Assessor, even after denying agricultural classification of the Sollars property thus offered the opportunity to, in effect, challenge the denial by providing additional information. Sollars instead chose to appeal the agricultural classification denial to the Fremont County Board of Equalization.
163. A further reason Sollars cannot legitimately maintain a denial of due process argument arises from the very procedures utilized by the Board to ensure the positions of all parties to an appeal are well-defined and articulated for response and resolution. Because these matters were certified to the Board, the procedures applicable in direct appeals to the Board were utilized. Rules, Wyoming State Board of Equalization, Chapter 2. These Rules provide for the parties to an appeal to exchange routine discovery, Chapter 2, §25; exchange preliminary statements, Chapter 2, §10; and participate in a pre-hearing conference, Chapter 2, §11.
164. The Board, in addition, in its Hearing Order entered in these matters on September 26, 2006, required all parties: (a) exchange all exhibits by October 27, 2006; (b) identify any potential expert witnesses and designate any confidential exhibit and potential confidential testimony by October 27, 2006; (c) participate in a pre-hearing conference on November 1, 2006 in person or by telephone; (d) confer on stipulated and uncontroverted facts and use of joint exhibits before the pre-hearing; (e) file with the Board and serve on all parties at the pre-hearing an updated summary of contentions, stipulated facts, a summary of remaining issues of fact and law, and a list of proposed witnesses with a brief summary of their proposed testimony. [Hearing Order, ¶¶ C, D, G, and H. Board File]. The Assessor fully complied with all of the Board’s procedural requirements, and such compliance afforded Sollars full and complete due process.
165. Two of the statutory requirements for land to qualify for agricultural classification mandate a showing the land is being employed for an agricultural purpose, and is being used consistent with the land’s capability to produce. Wyo. Stat. Ann. §§ 39-13-103(b)(x)(B)(I), (b)(x)(B)(IV).
166. The Assessor, in considering how best to determine whether these two requirements have been met, concluded they are basically interrelated. The statutory definition of “agricultural purpose,” as used in Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(I), references land uses consistent with the land’s capability to produce, which is the same criteria found in Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV):
"Agricultural purpose," as used in W.S. 39-13-103(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).
167. The Assessor, based upon this interrelationship, concluded it would be appropriate to rely on a single methodology to determine whether both requirements had been met. Facts, ¶¶ 127-133, 135.
168. The method utilized by the Assessor to determine whether land on which agricultural activities are occurring fulfills the statutory productivity requirement for agricultural classification clearly meets the three-part constitutional standard. Conclusions, ¶ 149; Wyo. Stat. Ann. §39-13-103(b)(x)(B)(I) & (IV). The method employs a quantitative analysis which relies on elements of the method prescribed by the Department Rules for valuation of agricultural lands. Facts, ¶¶ 129, 134; Rules, Wyoming Department of Revenue, Chapters 10 and 11.
169. The Assessor considers soil type, the pertinent Land Resource Area as defined by the Department, and the productive class of the land. She then utilizes the resulting information to determine a standard productive range for irrigated crop land, expressed in tons of hay per acre, the same measure used by the Department to determine the value of land properly classified as agriculture. The Assessor then translates the hay tonnage into an expected agricultural gross income benchmark using the low end value for a ton of hay. Facts, ¶¶ 129-133; Rules, Wyoming Department of Revenue, Chapters 10 and 11.
170. The rationality of this process used by the Assessor is obvious. It is supported by the fact the process relies on a philosophy and thought process which the Department has memorialized by duly adopted Rules to which an assessor is required to adhere for valuing land properly classified as agricultural. Wyo. Stat. Ann. §18-3-204(a)(ix). The requirement of rationality, and for that matter, essential fairness as well, are fulfilled by the process which parallels the Department’s duly adopted Rules. The Assessor’s process has clearly not been arbitrarily developed by her without reference to a verifiable standard or benchmark.
171. The Assessor testified she uses this methodology to determine whether any small acreage, non-platted property meets the statutory capability requirement. Her adherence to this methodology for all similarly situated property requires equal application to all property. Facts ¶ 134.
172. As the Wyoming Supreme Court has noted, “[a] strong presumption favors the Assessor’s valuation,” Britt, supra, 2006 WY 10, ¶ 23, 126 P.3d at 125, and the ultimate burden of persuasion to prove the valuation determined by the Assessor was not derived pursuant to constitutional and statutory requirements must be shouldered by the taxpayer challenging the value. Id. None of the Taxpayers herein have fulfilled that ultimate burden. While the testimony of Ron Cunningham was intended to question the Assessor’s decision to use 3 tons of hay per acre as standard in her analysis, Facts ¶¶ 32-35, the respective Taxpayers presented no evidence which even remotely challenged the Assessor’s overall methodology used to determine whether the production capability requirement for agricultural land classification for each property at issue had been met. Wyo. Stat. Ann. §39-13-103(b)(x)(B)(IV).
173. The analysis with regard to the Spriggs’ property necessitates a separate discussion.
174. The requirements of Wyo. Stat. Ann. §§ 39-13-103(b)(x)(B)(II) & (IV) need not be fulfilled under any one of four scenarios:
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.
Wyo. Stat. Ann. §39-13-103(b)(x)(B)(IV), (emphasis added).
175. The Assessor stipulated Spriggs, and Sollars, had annual gross revenues from agriculture of more than $500 as required by Wyo. Stat. Ann. §39-13-103(b)(x)(B)(III) for agricultural classification for 2006. Facts, ¶¶ 43, 65.
176. The Assessor, at the Board hearing, also agreed Nation, Wendt, Hlavnicka, and Reins had annual gross revenues from agriculture of more than $500 in 2005 and therefore met the requirements of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(III). Facts, ¶ 126.
177. The Assessor further agreed Spriggs was excused from meeting the criteria of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV), and excused by implication from the requirements of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(I) as the result of her perception of the interrelationship of the two requirements, in 2005 for 2006 agricultural classification based on Spriggs’ testimony that he delayed, for marketing purposes, the sale of this cattle from the fall of 2005 to early 2006. The Assessor agreed Spriggs was actively pursuing an agricultural cattle operation sufficient to allow him to rely on Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV)(2): “Causes a marketing delay for economic advantage.” Facts, ¶¶ 69, 136.
178. Nation, Hlavnicka and Wendt also claimed to have sold cattle in January and February, 2006, the income from which they asserted should be attributed to 2005 in order to prove their land produced the benchmark agricultural gross income required by the Assessor in 2005 to qualify for agricultural classification for their property in 2006. The Assessor declined, in part due to the lack of supporting documentation by Nation, Hlavnicka and Wendt which an assessor may statutorily require:
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. §34-13-103(b)(x)(C).
179. There are further logical statutory reasons why income received in a subsequent year, e.g. 2006, should not be attributed to the prior year, e.g. 2005, in an attempt to justify agricultural classification for 2006.
180. All taxable property in Wyoming is to be listed, valued at its fair market value, and assessed as of January 1st of each year. Wyo. Stat. Ann. §§39-13-103(b)(i)(A) & 103(b)(ii). In determining whether agricultural land classification should be allowed, Wyo. Stat. Ann. §39-13-103(b)(x)(B)(III) specifically requires consideration of “annual gross revenues,” while Wyo. Stat. Ann. §§ 39-13-103(b)(x)(B)(I) & (b)(x)(B)(IV), under the Assessors benchmark revenue calculations, also requires consideration of income. With an assessment date of January 1st each year, the only logical statutory focus for determining qualifying income is that which was earned in the year preceding January 1st. There is no statutory basis or authority for an assessor to attribute revenues received after January 1st to the year prior to January 1st in order to determine fulfillment of the annual gross revenues requirement.
181. The “exception” set out by Wyo. Stat. Ann. §39-13-103(b)(x)(B)(IV)(2) to fulfillment of the gross revenue requirements addresses a marketing decision by a legitimate agricultural producer to gain an economic advantage, i.e. earn more income. This exception clearly provides no authority or basis for reallocating income from a subsequent year to a prior year in order to meet a gross revenue requirement.
182. The final criteria requires agricultural land “is not part of a platted subdivision.” Wyo. Stat. Ann. §39-13-103(b)(x)(B)(II).
183. The Department’s Rules define “platted subdivision”:
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. Facts, ¶ 11. We note the Department’s definition does not conflict with the subdivision regulation statute or the Fremont County Regulations.
184. 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.
185. Stated another way, any modification to the status of the Taxpayers’ property 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 has concluded, by rule, such status is maintained going forward, even if a plat may be subsequently validly vacated.
186. The requisite acts of creation and/or division occurred with respect to the O’Brien Subdivision. Each Taxpayer’s 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. Facts, ¶¶ 1, 5. The subdivision so created received the approval of the governing body in whose jurisdiction the property resided at the time of creation. Facts, ¶ 1. The division of property into lots was recorded in the records of the county clerk. Facts, ¶ 4. Each Taxpayer’s property is included in a platted subdivision within the meaning of the Department’s Rule.
187. Although the Department’s regulation provides a sufficient basis to rule for the Assessor, it is not the exclusive basis for doing so. The alternative grounds for doing so apply once we consider the County Commissioners’ approval of the Taxpayers’ Petition to Vacate. From the record we conclude the Commissioners ignored important questions raised by the then Fremont County Attorney, the Fremont County Assessor, and the Fremont County Planner. These questions concerned whether a subdivision could be vacated once it has been fully developed and all lots sold, and whether a subdivision could be approved one week and then vacated the next solely to acquire agricultural classification. Facts, ¶¶ 13, 17, 120, 121; [Exhibits 1002, 1006]. We accordingly turn to matters related to vacating the O’Brien Subdivision.
188. The Assessor challenges the plat vacation by asserting a mortgage holder, that is, the mortgagee, through its mortgage interest is an “owner” of the mortgaged property, and must therefore sign any vacation request under either Wyo. Stat. Ann. § 34-12-106 or Section 8 of the Fremont County Subdivision Regulations, both of which require vacation requests be signed by all owners. [Exhibit 1011; Board Exhibit A]. The law of mortgages in Wyoming does not support such an assertion.
189. There are two basic legal theories, title and lien, which reflect the rights and interests of a mortgagee in the property encumbered by a mortgage. In many states, the applicable theory is defined by statute. In Wyoming, the lien theory is exclusively a creation of the Wyoming Supreme Court as first clearly enunciated in Robinson Mercantile Co. v. Davis, 26 Wyo. 484, 187 P. 931 (1920):
In this state, as in the cases cited, the title to the property mortgaged does not pass by the mortgage to the mortgagee, even on condition broken. The mortgage simply creates a lien upon the land, and it must be sold on foreclosure to pass the title.
Id at 932. See also, Rudolph, The Wyoming Law of Mortgages, 23-24 (1995).
190. A mortgagee in Wyoming thus has only a lien interest, not an ownership interest, in the encumbered property:
This state, as does the majority of jurisdictions, follows the lien theory of mortgage law. A Wyoming mortgagee, therefore, has nothing more than a lien on the property with its appurtenant right of foreclosure. Robinson Mercantile Co. v. Davis, 26 Wyo. 484, 187 P. 931 (1920); Slane v. Polar Oil Company, 48 Wyo. 28, 41 P.2d 490 (1935).
Various Water Rights in Lake DeSmet Reservoir, Board of Control Docket No. II-77-2-1. L Slash X Cattle Company, Inc. v. Texaco, Inc., 623 P.2d 764, 768 (Wyo. 1981). See also, First Southwestern Financial Services v. Laird, 882 P.2d 1211, 1261 (Wyo. 1994), and Marple v. Wyoming Production Credit Association, 750 P.2d 1315, 1319 (Wyo. 1988).
191. Both Wyo. Stat. Ann. § 34-12-106 and Section 8 of the Fremont County Subdivision Regulations require the signature of all owners in order to vacate a plat. A lender, as a mortgage holder, acquires no ownership interest in the encumbered property. It is thus not an owner, and its agreement to vacation of a plat is not necessary.
192. The Taxpayers, on the premise the subdivision no longer exists, argued their property literally “is not part of a platted subdivision.” We conclude the facts do not support this argument.
193. 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 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. Facts, ¶ 10; [Exhibit 1003]. In approving the Petition, the County Commissioners relied only on Section 8. The Commissioners made no reference to Wyo. Stat. Ann. § 34-12-106. Facts, ¶ 15; [Exhibit 1006].
194. 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 through 110. None of the statutes provide for action of any sort by a board of county commissioners.
195. 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.
196. 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. [Board Exhibit A].
197. 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.
198. 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. Facts, ¶¶ 4, 20. Taxpayers’ mortgages likewise bear no indication that the plat has been vacated. Facts, ¶ 30.
199. 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. [Exhibit 1003]. The Petition does not itself make the declaration required by Wyo. Stat. Ann. § 34-12-106.
200. 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 still owns 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.
201. 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).
202. The proprietor who created the O’Brien Subdivision secured benefits related to the location of the subdivision as originally approved pursuant to the subdivision regulations in effect in 1991. 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” Facts, ¶ 120; [Exhibit 1002], 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.
203. The size of each parcel at issue is less than forty acres, [Exhibit 1001], thus each Taxpayer was obliged to provide proof to the Assessor their respective parcel should be classified agricultural. Rules, Wyoming Department of Revenue, Chapter 10, § 3(c)(x). We conclude the Taxpayers failed to provide such proof.
204. 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 former Fremont County Attorney. [Exhibit 900]. 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. [Exhibit 1001]. 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). While the individual lot owners would have a description of the portion of the 156 acre tract to which they held title prior to vacation of the plat, after vacation all of the ownership lines used by each owner to define his lot are legally erased. They have no legal relevance. The record gives no indication that Taxpayers or their neighbors considered the nature of the interests which result once a subdivision is vacated.
205. A county clerk, by statute, Wyo. Stat. Ann. § 34-12-110, is required to mark a plat “vacated” if the appropriate vacation procedure is completed. The statute does not say to mark the plat as “vacated except for the metes and bounds description” which is, in effect, the position of the Taxpayers. A plat which is vacated is a nullity for all purposes. It may still physically reside in the office of the county clerk, however such physical residence does not impart any legal effect. The metes and bounds descriptions of lots on a vacated plat which has no legal effect do not in any manner define by whom and in what manner title is held to the property which encompasses the former subdivision.
206. The Board believes the most likely legal and equitable result of vacating the subdivision, and thus the elimination of the individual lot descriptions would be that all owners become tenants in common as opposed to joint tenants or tenants by the entirety which are not favored in Wyoming. Choman v. Epperley, 592 P.2d 714, 719 (Wyo. 1979); Lurie v. Blackwell, 2002 WY 110, ¶ 12, 51 P.3d 846, 851 (2002).
207. As tenants in common, each owner would 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. Sollars, for example, would thus own a 19.7/156 interest in the entire 156 acre parcel as tenants in common with all other owners. As tenants in common, each owner has an equal right of possession and use to the entire O’Brien Subdivision plat - 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”).
208. We doubt that such a result of collective ownership with its equal rights of use and possession 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.
209. 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.
210. Spriggs, Reins, and Sollars, in their joint post-hearing brief when discussing the issue of the ownership interests in the O’Brien Subdivision after it is vacated, argue that even if the lot descriptions are removed by the vacation, the metes and bounds descriptions noted on the plat are still effective to define the property boundaries for each parcel in the vacated subdivision. They in effect assert that although the plat has been vacated for subdivision purposes, and thus their respective properties are not located in a platted subdivision, the plat is still somehow effective to describe by metes and bounds description the parcel owned by each Taxpayer.
211. Spriggs, Reins, and Sollars, in support of their argument, cite four court decisions, including a 1897 decision by the Supreme Court of Iowa. None of these decision, however, lend any credence to their argument the metes and bounds descriptions on the plat is still valid, in particular because none of the decisions address the issue of property ownership when an entire subdivision is vacated after all lots have been sold.
212. Spriggs, Reins, and Sollars cite Brown v. Taber, 72 N. W. 416 (Iowa 1897), alleging its relevance based on their assertion the Wyoming subdivision statutes were modeled after the Iowa statutes, and that this Iowa decision has been cited in Wyoming cases. These Taxpayers, however, provide no authority or citation to support these assertions.
213. The Iowa Supreme Court, in Brown, addressed the issue of whether the description of a lot on a plat included a platted street which was subsequently vacated. The court concluded a deed describing a parcel by lot number conveys only the lot, not any portion of an abutting street which is subsequently vacated.
214. Spriggs, Reins, and Sollars cite an Indiana decision, Bob Layne Contractor, Inc. v. Buennagel, et al., 301 N.E. 2d 671 (Ind. 1973). The principal issue in this matter concerned what effect the vacation of a portion of a plat had on the restrictive covenants placed on the entire property when originally platted. The court concluded vacating a portion of a plat did not relieve the vacated property from the effect of the restrictive covenants.
215. Spriggs, Reins, and Sollars cite River Properties Partnership v. Willoughby, 944 P.2d 1145 ( Wyo. 1997). The Wyoming Supreme Court in this matter simply held that a metes and bounds description of a lot in a proposed subdivision was sufficient under Wyo. Stat. Ann. § 34-1-121(a) to give notice of the transfer of ownership.
216. Finally, Spriggs, Reins, and Sollars cite Town of Moorcroft v. Lang, 779 P.2d 1180 (Wyo. 1989), which references for its factual background the Court’s prior decision in the same matter cited at 761 P.2d 96 (Wyo. 1988). These two decisions discuss the ownership of minerals which lie beneath the streets dedicated to the public by the plat of the Town of Moorcroft, not, as argued by these Taxpayers, the mineral interests underlying a street in a vacated subdivision. The Wyoming Supreme Court concluded the title to the mineral rights underlying the dedicated public streets in Moorcroft were still held by the original dedicator of the town, the Lincoln Land Company, its successors and assigns. The question of ownership of a vacated subdivision was not even remotely discussed.
217. Vacating the plat would 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 1005]. The efficacy of such deed to grant the desired access is, however, questionable for two reasons.
218. 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.
219. 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 benefits subsequent owners rather than an easement “in gross” which would not transfer a right to 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, 2002 WY 65, ¶ 21, 45 P.3d 635, 640,(2002); Pokorny v. Salas, 81 P.3d 171, 178, 2003 WY 159, ¶ 25 (2003); Lozier v. Blattland Investments, LLC, 2004 WY 132, ¶ 11, 100 P.3d 380, 384 (2004). If the easement is in fact “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 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.
220. We conclude each Taxpayer has failed to fulfill their burden of going forward or ultimate burden of persuasion that the property in question qualifies for agricultural classification.
221. We further find the Board is prohibited by Wyo. Stat. Ann. § 39-13-109(b)(i) from granting any relief to the Alleys based on their failure to appear at the November 15 & 16, 2006 Board hearing in Lander, Wyoming. Conclusions, ¶ 143.
ORDER
IT IS THEREFORE HEREBY ORDERED the decision of the Fremont County Assessor denying each Taxpayer’s request for agricultural classification of the property at issue is affirmed.
DATED this day of January, 2007.
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