BEFORE THE STATE BOARD OF EQUALIZATION
FOR THE STATE OF WYOMING
IN THE MATTER OF THE APPEAL )
OF MOUNTAIN HOLDING, INC., )
FROM A VALUATION DECISION ) Docket No. 2008-83
OF THE PARK COUNTY ASSESSOR )
2008 PROPERTY VALUATION )
FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER
Brent R. Kunz, Scott W. Meier, Lucas Buckley, Hathaway & Kunz, P.C. appeared on behalf of Mountain Holding, Inc. (Petitioner or Taxpayer).
Doug Brandt, Park County Assessor, appeared pro se. (Respondent or Assessor).
Objections to local assessments must be filed with the county assessor within 30 days after the date or postmark date of an assessment schedule, whichever is later, and indicate why the assessment is incorrect. Wyo. Stat. Ann. § 39-13-109(b)(i).
Mountain Holding, Inc., is the developer and owner of the unsold lots in the Panorama View Addition Phase III, and Canyon Village II Planned Unit Development.
The 2008 Amended Notices of Assessment for each of the properties under appeal in Panorama View Addition Phase III [Panorama] were dated June 5, 2008. The 2008 Amended Notices of Assessment for each of the properties under appeal in Canyon Village II Planned Unit Development [Canyon Village] were dated June 11, 2008. A Statement to Contest Property Tax Assessment listing each of the properties under appeal in the Panorama View Addition Phase III and Canyon Village II Planned Unit Development was filed with the Park County Assessor by Glenn W. Nielson on behalf of Mountain Holding, Inc. on June 10, 2008.
The appeal of Mountain Holding was timely filed.
STATEMENT OF THE CASE
This matter is before the State Board of Equalization (State Board) upon a request by the Park County Board of Equalization, filed with the State Board on July 23, 2008, pursuant to Rules, Wyoming State Board of Equalization, Chapter 2 § 36, asking the appeal by Mountain Holding, Inc., 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 6, 2008. This appeal is thus before this Board the same as an initial appeal pursuant to Rules, Wyoming State Board of Equalization, Chapter 2.
A hearing before the State Board consisting of Thomas R. Satterfield ,Chairman; Thomas D. Roberts, Vice Chairman; and Board Member Steven D. Olmstead, pursuant to order entered December 18, 2008, as modified March 24, 2009, was held March 26, 2009.
We affirm, for the reasons noted herein, the 2008 valuation established by the Assessor for each of the properties under appeal in the Panorama View Addition Phase III and Canyon Village II Planned Unit Development.
CONTENTIONS AND ISSUES
Petitioner, in its Issues of Fact and Law and Exhibit List, stated:
Mountain Holding will argue that Park County should have applied a developer discount to lands it owned in the Panorama View Addition Phase III and Canyon Village II Planned Unit Development subdivisions in Park County for the 2008 tax year. Mountain Holding anticipates that Park County will argue that they were precluded by Department of Revenue Directive (01-07) from applying a developer discount or present worth valuation formula in assessing Mountain Holding’s properties.
[Petitioner’s Issues of Fact and Law and Exhibit List, p. 1].
Petitioner’s post-argument brief asserts a Department Directive cannot bind the State Board, and the 2008 valuation of Mountain Holding’s developmental lands was erroneous. [Protestant’s Closing Brief].
The Assessor, in a prehearing pleading, basically agreed with Petitioner’s issues of fact and law. [Preliminary Statement of the Park County Assessor].
The Assessor’s post-argument brief adopted the “Discussion and Legal Argument” set out in Petitioner’s [Protestant’s] closing brief. He also asserted an assessor must have some latitude and discretion within the prescribed rules to value land for tax purposes. [Park County Assessor’s Closing Brief].
FINDINGS OF FACT
1. Marvin Applequist is the Property Tax Administrator with the Wyoming Department of Revenue [Department]. He was chief deputy assessor in Sweetwater County for a number of years, and served on the State Board for ten years, from 1989 to 1999. He appeared at the hearing in this matter pursuant to a subpoena. [Transcript, pp. 19-20].
2. A Department directive typically gives direction, and is sent to each Wyoming county. The directive in this matter basically said follow the statutes and rules as written. [Exhibit 107; Transcript, p. 21].
3. Department directives are generally issued when it is discovered a county or multiple counties are treating property differently in different areas of the state. The directive directs the counties to treat property in the same manner consistent with statutes and rules so there is uniformity from county to county. A directive can be sent to a single county, or to a number of counties. [Transcript, pp. 21-22].
4. A Department directive is a mandate which requires compliance. [Transcript, p. 23].
5. Mr. Applequist had no involvement with the 2007 assessment review of Park County, nor any written reports referenced in June 20, 2007, letter from the State Board to Wade Hall, the then Property Tax Administrator, regarding the 2007 Park County Abstract Review. [Exhibit 108, Bates 101-102; Transcript, pp. 23-25].
6. The Park County Work Plan, which contains Mr. Applequist’s signature, was drafted by Jack Rehm, a Department employee, after a visit to Park County in September, 2007. One goal to be accomplished by the Park County Assessor under the Plan by January 1, 2008, was to maintain the equality of the sold to unsold for vacant land. Sold properties are used to help value unsold properties to ensure unsold properties are treated in a similar manner to sold properties in determining fair market value. [Exhibit 108, Bates 99-100; Transcript, pp. 26-27].
7. The handwritten “Additional Note”on the Park County Work Plan indicating Park County wanted an opportunity to explain the validity of a discounted or contractor’s rate was added by Jack Rehm. Mr. Applequist did not know whether Park County had any contact with the State Board on the issue. [Exhibit 108, Bates 100; Transcript, p. 28].
8. Department Directive 01-07, dated October 19, 2007, was issued after the Department became aware three counties, Park, Carbon, and Uinta, were valuing vacant subdivision lots using some type of discount method. One county, as an example, was reducing, until sold, the value of unsold vacant properties by 20 percent from the fair market value indicated by the selling price of lots sold in the same subdivision. The directive required the unsold vacant properties be valued pursuant to the statutes and rules, that is, based on what a knowledgeable buyer would pay a knowledgeable seller for a property if it was advertised in the marketplace. Once the vacant lots are ready for sale, they should be treated similarly. [Exhibit 107; Transcript, pp. 28-33, 40].
9. Mr. Applequist testified the directive was intended to indicate a present value discount was not an appropriate valuation procedure. [Transcript, pp. 34-35].
10. Mr. Applequist made his decision to issue Department Directive 01-07 based on prior discussions with the State Board. The State Board did not mandate the directive. [Transcript, p. 35].
11. If a county did not follow Department Directive 01-07, the Department would probably request the State Board conduct an investigation as to whether the county was, in fact, in compliance. [Transcript, pp. 35-36].
12. Mr. Applequist stated his understanding the use of a developer discount had historically occurred in certain counties, possibly since the mid-80's, for example, in Carbon County. The Department did not become aware of the use of developer discounts until 2007. [Transcript, pp. 36-37].
13. Mr. Applequist did not advertise or otherwise seek public comment with regard to Department Directive 01-07. He did not pursue any type of rulemaking procedures. He received no substantial comments concerning the directive other than from the Assessor in this matter. He spoke with the Uinta County Assessor who told him she was directing calls from developers to Mr. Applequist. The Carbon County Assessor called to notify him she had ceased using the discounted method. [Transcript, pp. 38-39, 53].
14. The costs incurred by a developer in developing a subdivision, from the cost of the raw land to construction of infrastructure, are expected to be included in the purchase price of each lot. [Transcript, pp. 44-45].
15. Mr. Applequist testified, in his experience, the most common way to value vacant land is through comparable sales. [Transcript, p. 48].
16. An assessor in Wyoming is required to value each lot in a subdivision individually as of January 1st of each year at its fair market value were it offered for sale. The fact a developer may not offer the property for sale, or it does not sell, does not justify, as asserted by Mr. Applequist, the use of a developer discount to value unsold lots. The value should be the fair market value each year. The unsold lots are not to be valued as a group similar to property held in inventory. [Transcript, pp. 48-50, 54].
17. The current CAMA [computer assisted mass appraisal] system utilizes RealWare as developed by a Colorado company, Colorado Custom, Incorporated. A developer discount, in Colorado, is authorized by statute. Wyoming does not have a statute which addresses a developer discount. [Transcript, pp. 50-52].
18. The condition of the economy in Wyoming does not affect the methodologies an assessor is authorized to use to value property. Economic factors may affect fair market value of a property, but they do not affect the methodology an assessor is authorized to use to reach fair market value. [Transcript, pp. 52-53].
19. Glenn William Nielson testified on behalf of Petitioner. He has a bachelor of science degree in accounting with minors in economics and business management. He is the owner and manager of Y-Tex, of which Mountain Holding, which does real estate development, is a subsidiary corporation. [Transcript, pp. 60-62].
20. Mr. Nielson has been involved in various types of real estate development since 1969, primarily industrial and commercial developments in Idaho, Montana, Utah, and California. He has been involved in residential development since 1972, all in Park County. [Transcript, pp. 61-63].
21. Mr. Nielson stated the development costs of a residential subdivision have an effect on, and must be reflected in, the price of a lot in a subdivision. Development costs can include the expense of the infrastructure such as streets, water lines, sewer lines, electrical, and telephone. There is also the peripheral costs such as engineering. A residential subdivision must also usually be done in large enough increments, not just one or two lots, in order to get contractors interested in providing construction services. [Transcript, pp. 63-65].
22. The price of a lot in a subdivision must include not only the development costs, but also carrying costs, such as the interest cost or the time value of money, associated with the fact all lots in a subdivision will most likely not immediately sell. [Transcript, pp. 84-87, 90-91].
23. The lots in the third phase of the Panorama development were placed on the market in August, 2007. There were 28 lots in the third phase, of which 24 were available at the beginning of 2008. The lots in the second phase of the Canyon Village PUD were placed on the market in March, 2007. There were 24 lots in the second phase, of which 19 were available at the beginning of 2008. [Transcript, pp. 66-67].
24. Each of the lots in Panorama and Canyon Village have all infrastructure installed and are ready for sale. The lots in Panorama are priced in the $116,000-$120,000 range. Petitioner does not separately sell the lots in Canyon Village. It contracts with a builder to construct a home on each lot, and then sells the home and lot. Mr. Nielson has never priced only a lot in Canyon Village, but estimated a comparable lot would sell in the range of $20,000 to $25,000. [Transcript, pp. 68-70, 81-82].
25. There were no restrictions on the sales price of the lots and homes in Canyon Village, which was not low-income housing nor federally subsidized. Mr. Nielson stated his opinion the properties in Canyon Village which had previously sold did so at fair market value. [Transcript, pp. 82-83, 87-88].
26. Mr. Nielson stated Petitioner does not hold lots hoping the price will go up. It sells the lots as soon as it can. A developer does expect, however, it will hold some lots for a longer period of time. [Transcript, pp. 71-74].
27. Mr. Nielson stated the fair market value of the lots at issue, as established by the Assessor, doubled between 2007 and 2008. Upon inquiry as to the significant increase, he was told the Assessor was required to use a valuation method in 2008 different from what was used in 2007. He understood the 2008 value for the lots at issue was based on asking price, which he asserted had no bearing on market value. [Transcript, pp. 74-76, 86].
28. Mr. Nielson urged the Board to allow use of a more realistic approach to determining fair market value. [Transcript Vol. I, p. 79].
29. Doug Brandt indicated he has been the Park County Assessor since 1991. He began work in the Park County Assessor’s office in 1979 as a deputy assessor for field assessment and appraisal. He has over 950 educational hours accredited by the International Association of Assessing Officers [IAAO], the Department, and the Appraisal Institute. He has been certified by the Department as a property tax appraiser since inception of the designation in Wyoming. [Transcript, pp. 93-95].
30. Mr. Brandt stated his duties as an assessor were to locate, identify, and value all taxable property in Park County within the constraints of the Wyoming statutes and Department Rules. [Transcript, pp. 63-65].
31. Mr. Brandt also adheres, as much as possible, to the Uniform Standards of Professional Appraisal Practice [USPAP]. He acknowledges, however, those Standards as well as the IAAO standards are not binding on Wyoming assessors. He can function in his position as assessor without complying with IAAO or USPAP standards, and still be in good standing with the State Board and the Department. [Transcript, pp. 96, 132-133].
32. The Department has promulgated rules which identify the three basic methods or approaches for valuing taxable property - cost, sales comparison, and income. Mr. Brandt stated the nature of the property as well as the regulatory and economic environment within which the property operates must be considered when using each of the three approaches. [Transcript, pp. 96-98].
33. Mr. Brandt uses the sales comparison methodology in valuing property in Park County when there are enough available and accurate sales. The availability of sales is the main limiting factor to using the sales comparison method. [Transcript, pp. 98-99].
34. Mr. Brandt uses the cost approach, as approved by the Department Rules, to value taxable property. He indicated USPAP pertains to the cost approach when appraising property. [Transcript, pp. 100-101].
35. Mr. Brandt also uses the income approach for appraising property, however, that approach has limited application. He indicated USPAP applies to the income approach as well. [Transcript, p. 101].
36. Mr. Brandt stated the CAMA system is not a valuation method but is rather a computer system capable of helping with all three approaches to value - sales comparison, cost, and income. The CAMA system is provided to the assessors by the State of Wyoming, and is the only computer system an assessor is permitted to use. Mr. Brandt has received training on the CAMA system. [Transcript, pp. 101-103, 149-150].
37. Mr. Brandt uses the CAMA system to value real property held by commercial developers such as Petitioner. [Transcript, pp. 103-104].
38. Mr. Brandt stated he considers the present worth valuation system to be an income approach. The present worth valuation methodology discounts to present worth the value of future benefits. [Transcript, p. 104].
39. Mr. Brandt has utilized the present worth valuation methodology or a developer discount from 1992 through 2007. He concluded in 1992, after consulting with developers, a developer discount was the correct way to value property such as the lots at issue. The land was in transition from being raw land to the point of being developed, to lots for sale at a retail level. He saw a developer discount as similar to considering the different trade levels of personal property. [Transcript, pp. 105-107, 125-126, 157-158].
40. Mr. Brandt received a copy of Department Directive 01-07. He did not have any advance notification the Department would be issuing the Directive although the issue of developer discounts was discussed during the 2007 Park County abstract review with the State Board. Mr. Brandt may have discussed the issue with Mr. Applequist during review of the Park County Work Plan. [Exhibit 107; Exhibit 108, Bates 99; Transcript, pp. 107-109].
41. Mr. Brandt stated his understanding a Department directive has the force of law to the assessors, and is thus mandatory. [Transcript, p. 109].
42. Mr. Brandt indicated each of the lots at issue were valued as an individual lot, not as a group, using sales prices of comparable properties, not asking prices. [Transcript, pp. 110-112, 121-123].
43. Mr. Brandt testified, absent Department Directive 01-07, he would have used a present worth calculation to value the lots at issue for 2008. He asserted the present worth valuation method was authorized by the Department Rules as falling within the definition of the income approach. He was not aware of any other rule or statute which addressed present worth as a valuation approach. [Transcript, pp. 112-116, 124, 139-140].
44. Mr. Brandt testified he projected an income stream from the sales prices of the four lots sold in 2007 in Panorama to calculate a total income for all of the lots as sold over a defined time frame. He then discounted the grand total back to the present worth in 2008 as opposed to the end of a six-year adsorption period. [Transcript, pp. 66-67, 124-125].
45. Mr. Brandt testified he used the developer discount on vacant land in a subdivision until 80 percent of the lots had been sold. He then valued the remaining 20 percent without using the developer discount. [Transcript, pp. 126-128].
46. Mr. Brandt stated even using the developer discount, if the sale price increased, or decreased, as more of the developer lots were sold, the value of all the lots would increase or decrease as well. [Transcript, pp. 128-130].
47. Mr. Brandt received a copy of the letter dated June 20, 2007, from the State Board to Wade Hall, the Property Tax Administrator at that time. The issue of the developer discount was discussed by the State Board and Mr. Brandt during the 2007 Park County abstract meeting. [Transcript, pp. 130-131].
48. Mr. Brandt does not know from personal knowledge whether the developer discount would fall within the category of generally accepted appraisal standards. [Transcript, pp. 133-134].
49. Mr. Brandt treated a subdivision with only sewer and water in place but no streets, curbs or gutters differently from a fully developed subdivision with lots ready for sale. He considered the lots at issue ready for sale, not lots in transition. [Transcript, pp. 134-136].
50. Patrick Meyer testified has worked in the Park County Assessor office for 24 years. He has been first deputy since 1990. He has accumulated1300 education hours through IAAO and other schools. His basic duty is to develop a fair market value for all taxable property. He abides by the USPAP standards even though they are not binding on assessors. [Transcript, pp. 141-144].
51. Mr. Meyer indicated the sales approach is the sales comparison approach. This approach compares property which has sold to similar unsold property to arrive at a value for what the unsold property would sell for on the open market. [Transcript, p. 145].
52. Mr. Meyer stated the cost approach is used basically for improved property to reach a replacement cost new less depreciation value. [Transcript, pp. 145-146].
53. Mr. Meyer used the income valuation approach to value future benefits. [Transcript, p. 146].
54. Mr. Meyer indicated all three approaches to value, sales comparison, cost, and income, should be considered in valuing property at its fair market value. [Transcript, pp. 146-147].
55. Mr. Meyer testified the sales comparison approach can not be used to value multiple lots held by a single developer because you are looking more for future benefits. He stated what he was trying to do with a developer discount was determine what the property was worth as of January 1st. [Transcript, pp. 147-148].
56. Each year the Park County assessor first values all land in the county based on vacant land sales. A replacement cost new less depreciation value is then developed for any residence on the property. The resulting value is then adjusted based on sales of like properties in the same neighborhood as the property being valued. The CAMA system assists in this process, however, CAMA does not decide which of the three valuation methods is appropriate for the property being valued. [Transcript, pp. 154-156].
57. The developer discount, or present worth valuation, as previously used by the Park County Assessor and as described by Mr. Meyer, sought to find the actual worth of the vacant lots as of January 1st, not what they would be worth in the future. The actual present worth would be based upon the sales price of sold lots, an absorption period [the time necessary to sell all lots] with application of a discount rate derived from combining a management rate, a safe rate, and a risk rate. The Park County Assessor had, in prior years, used a regional discount rate from an Internet website. The price and absorption period had been adjusted annually. [Transcript, pp. 156-157,162-163, 173, 176-177, 188-189].
58. If there had been no sales of lots in Panorama and Canyon Village in 2007 to use as comparables, Mr. Meyer would have interviewed Mr. Nielson to determine a possible selling price, and would also have looked at sales of similar lots in other subdivisions. To determine an absorption rate, Mr. Meyer would have reviewed the assessor’s historical sales records for similar subdivisions. [Transcript, pp. 191-192].
59. The developer discount applies only to vacant land held solely in the name of a developer. Once the property is sold, it is valued using the comparable sales approach to reach full market value. [Transcript, p. 158].
60. Mr. Meyer testified the Park County Assessor began using a developer discount or present worth approach after concluding in the early 1990's that developers’ lots were being overvalued. Mr. Meyer surveyed other states by telephone and found many which allowed various developer discounts. The assessor’s office eventually copied the developer discount approach from Colorado, and learned how to apply it. The developer discount, as allowed in Colorado, is authorized by statute. [Transcript, pp. 158-159, 164, 179-181, 187].
61. Mr. Meyer did not do any legal analysis with regard to developer discounts. He simply wanted to know how other assessors were valuing developers’ lots. [Transcript, p. 182].
62. Mr. Meyer stated the Park County Assessor used the developer discount approach, which it believed to be an income approach, to arrive at a more reasonable fair market value for vacant land. It was, as well, an approach which could be applied uniformly and equitably for all developers. [Transcript, pp. 160, 177, 178-179].
63. Mr. Meyer indicated he used a present worth function in the LEA tables in the RealWare CAMA system to help determine the developer discount. [Transcript, pp. 161, 182-184 ].
64. Mr. Meyer also stated the developer discount would not be applied once 80 percent of the lots in a development had been sold. This was the percentage at which Colorado stopped allowing a developer discount. The remaining 20 percent of the lots, even though unsold, would be valued using the sales comparison approach. [Transcript, pp. 164-165].
65. Mr. Meyer testified that when he did his telephone survey of other states in 1991, he rarely found a county which was not giving some kind of developer discount. He did a second telephone survey in October, 2008, contacting probably 10-15 states, all of whom were customers of Colorado Custom, Inc. [Transcript, pp. 165-166, 187].
66. Mr. Meyer valued each of the lots in question individually for 2008 using the sales comparison approach. He felt the more appropriate approach would be to use a developer discount rather than valuing every lot using the sales comparison approach to reach full market value. He did not believe the 2008 value derived for the lots at issue in this matter using the sales comparison approach represented fair market value. [Transcript, pp. 168-172].
67. A 25 percent discount had been applied to the lots at issue in previous years. Mr. Meyer would have used the same rate in 2008. [Transcript, p. 172].
68. The 2008 ad valorem taxes for Panorama and Canyon Village, as valued using the sales comparison approach, were $20,443 and $2,744 respectively. The 2008 ad valorem taxes for Panorama and Canyon would have been $10,050 and $1,619 respectively if a developer discount had been used. [Exhibits 102, 103, 104; Transcript, pp. 173-174].
69. The original assessment schedules sent Petitioner by the Park County Assessor for the lots at issue were dated April 24, 2008. The amended schedules, which indicated the same values as the original schedules, were sent on the dates set forth on the amended schedules. Petitioner filed notices of appeal based on the original schedules before the amended schedules were received. [Exhibit 106; Transcript, pp. 184-186].
70. The Park County Assessor Property Profile was not part of the assessment schedules mailed to Petitioner. [Exhibit 106; Transcript, pp. 186].
71. Christopher Brown testified he has been a real estate appraiser for 19 years, doing primarily commercial real estate valuation appraisal. He has a bachelor of science degree in finance from Brigham Young University. He is certified as an appraiser by the State of Wyoming. He has held an MAI designation from the Appraisal Institute as a commercial real estate appraiser since February, 1997. He is required, based on his MAI designation, to follow USPAP and the Appraisal Institute’s Code of Ethics. [Transcript, pp. 196-201].
72. Mr. Brown, with his MAI designation, has appraised 29 subdivisions with over 2000 lots and a total worth of approximately $130 million. Mr. Brown was allowed to testify as an expert in the area of commercial real estate appraisal. [Transcript, pp. 201-203].
73. Mr. Brown was familiar with the lots in this matter through documentation he had reviewed, but had not personally visited those lots. [Transcript, p. 203].
74. Mr. Brown uses the cost approach, the sales comparison approach, and the income approach when appraising commercial real estate. His ultimate goal is to arrive at market value. He is only appraising one property at a time, thus he does not have the same uniformity requirements as an assessor. [Transcript, pp. 203-204].
75. Mr. Brown testified the income approach can be applied to any income producing property, including subdivisions. The income stream to be discounted is the income from lot sales over a period of time. [Transcript, pp. 204-205].
76. According to Mr. Brown, the primary consideration when appraising a property using the income approach is the income stream, that is, what money will you be receiving and when will it come in. Expenses such as taxes, insurance, marketing, and holding costs such as interest also need to be considered. A discount rate is then applied to the income derived from selling the lots over time to reach a present value. If the value of the lots changes, the discounted present value will change. If the anticipated time to sell the lots [the absorption period] changes, it will have a substantial change on present value because of the time value of money. [Transcript, pp. 204-209].
77. Mr. Brown stated that of the 29 subdivisions he had appraised, 26 were for lending purposes. Every lender wants to know present value of the subdivision as a whole as that is the value the bank is getting as its collateral. Every bank is bound by the Federal Reserve and FDIC to look at present value, and base a loan on that figure. A sale of a group of lots will transact at a discount from retail value. A bank may use an average value per lot for partial releases of mortgage as lots are sold. [Transcript, pp. 210-211, 222-227].
78. Mr. Brown testified that if he were valuing Petitioner’s lots as a group, he would use a sales comparison approach if there were group sales of lots in Wyoming. The primary method, if there are not group sales, is to discount to present value. [Transcript, pp. 211-212].
79. Mr. Brown indicated if you are appraising lots one at a time, you want to determine a retail value. If you are selling more than one, maybe more than five, you need a bulk value, a discounted value to present value. [Transcript, pp. 215-216].
80. Mr. Brown agreed present worth and present value are the same. [Transcript, p. 216].
81. Mr. Brown has only been asked a few times to compare the estimated fair market value of property with the value of the same property as determined by an assessor. [Transcript, pp. 217-218].
82. Mr. Brown expressed his opinion the fair market value of the lots at issue in this matter as determined by the Park County Assessor was not reasonable because of the absorption period when valuing those lots as a group. He asserted the lots need to be valued as a group at their present value. [Transcript, pp. 219-220].
83. Mr. Brown testified that in valuing a subdivision in which no lots had yet been sold, he would look to comparable sales of other lots, and use retail values to discount to present value by estimating absorption, holding costs, marketing costs, and a profit requirement for taking the risk. [Transcript, pp. 221-222].
84. Mr. Brown did not review either the Wyoming statutes or the Department rules before testifying at the hearing. [Transcript, p. 227].
85. Any portion of the Statement of the Case or Contentions and Issues set forth above, or any portion of the Conclusions of Law: Principles of Law or the Conclusions of Law: Application of Principles of Law set forth below which includes a finding of fact, may also be considered a Finding of Fact and, therefore, is incorporated herein by reference.
CONCLUSIONS OF LAW: PRINCIPLES OF LAW
86. 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).
87. 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);
When interpreting statutes, we follow an established set of guidelines. First, we determine if the statute is ambiguous or unambiguous. A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. Unless another meaning is clearly intended, words and phrases shall be taken in their ordinary and usual sense. Conversely, a statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations.
BP America Prod. Co. v. Department of Revenue, 2006 WY 27, ¶ 20, 130 P.3d 438, 464 (Wyo. 2006), quoting State Dept. of Revenue v.. Powder River Coal Co., 2004 WY 54, ¶ 5, 90 P.3d 1158, 1160 (Wyo. 2004). If a statute is clear and unambiguous, we give effect to the plain language of the statute. State ex rel. Wyo. Dept. of Revenue v. Union Pacific R.R. Co., 2003 WY 54, ¶ 12, 67 P.3d 1176, 1182 (Wyo. 2003). To determine whether a statute is ambiguous, we are not limited to the words found in that single statutory provision, but may consider all parts of the statutes on the same subject. Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 6, 61 P.3d 1229, 1232 (Wyo.2003). If a statute is ambiguous, we may resort to principles of statutory construction to determine the intent of the legislature. Qwest, ¶ 8, 130 P.3d at 511.
Exxon Mobil Corporation v. State of Wyoming, Department of Revenue, 2009 WY 139, ¶11, _____ P.3d ______, 2009 WL 3766815 (Wyo. 2009).
88. 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, 1124 (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).
89. 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).
90. The Wyoming Constitution, article 15 § 11, provides in pertinent part:
(a) All property, except as in this constitution otherwise provided, shall be uniformly valued at its full value as defined by the legislature, in three (3) classes as follows:
(I) Gross production of minerals and mine products in lieu of taxes on the land where produced;
(ii) Property used for industrial purposes as defined by the legislature; and
(iii) All other property, real and personal.
* * *
(c) The legislature shall not create new classes or subclasses or authorize any property to be assessed at a rate other than the rates set for authorized classes.
(d) All taxation shall be equal and uniform within each class of property. The legislature shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal.
91. The Wyoming Statutes provide:
Basis of tax. The following shall apply:
* * *
(A) All taxable property shall be annually listed, valued and assessed for taxation in the county in which located and in the name of the owner of the property on January 1;
Wyo. Stat. Ann. § 39-13-103(b)(i)(A).
92. The Wyoming Statutes provide:
Basis of tax. The following shall apply:
* * *
(ii) All taxable property shall be annually valued at its fair market value. Except as otherwise 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).
93. Fair market value is defined as:
[T]he amount in cash, or terms reasonable equivalent to cash, a well informed buyer is justified in paying for a property and a well informed seller is justified in accepting, assuming neither party to the transaction is acting under undue compulsion, and assuming the property has been offered in the open market for a reasonable time.
Wyo. Stat. Ann. § 39-11-101(a)(vi); See Rules, Wyoming Department of Revenue, Ch. 9 § 4(f.).
94. The Department is required to “[p]rescribe the system of establishing the fair market value of all property valued for property taxation to ensure that all property within a class is uniformly valued.” Wyo. Stat. Ann. § 39-11-102(c)(xv). In particular, 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). The Department has promulgated rules to fulfill this statutory mandate. The acceptable appraisal methods include a sales comparison approach, a cost approach, and an income or capitalized earning approach. The rules also authorize the use of the CAMA system. Rules, Wyoming Department of Revenue, Chapter 9, § 6(a.)–(d.).
95. 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).
96. A county assessor has a corresponding duty to annually value property within their respective 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).
97. 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).
98. 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.
99. The State 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.
100. The Wyoming Supreme Court has described the burden of proof for a taxpayer challenging a county assessor’s valuation:
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. See also Thunder Basin Coal Co. v. Campbell County, Wyoming Assessor, 2006 WY 44, ¶ 13, 132 P.3d 801, 806 n.1. (Wyo. 2006).
101. 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); Thunder Basin Coal Co. v. Campbell County, Wyoming Assessor, 2006 WY 44, ¶ 13, 132 P.3d 801, 806 (Wyo. 2006).
102. The task of the State Board “is not to determine which of various appraisal methods is best or most accurately estimates FMV; rather, it is to determine whether substantial evidence exists to support usage of the RCNLD method of appraisal, and, if so, whether substantial evidence exists to support the manner in which it was used. See Teton Valley Ranch v. State Bd. of Equalization, 735 P.2d 107 (Wyo.1987).” Holly Sugar Corp. v. State Board of Equalization, 839 P.2d 959, 963 (Wyo. 1992).
103. 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).
CONCLUSIONS OF LAW: APPLICATION OF PRINCIPLES OF LAW
104. The Board has jurisdiction to consider and decide this appeal. Wyo. Stat. Ann. § 39-11-102.1(c); Wyo. Stat. Ann. §39-13-109(b)(i).
105. Petitioner, at the close of the hearing before the Board by oral motion through counsel, requested, in effect, the Board consider the just concluded hearing as an “allegation” pursuant to Rules, Wyoming State Board of Equalization, Chapter 4 § 3. [Transcript, pp. 235-237]. Petitioner’s request arose out of a concern with regard to application of Wyo. Stat. Ann. § 39-11-102.1(c)(iv), (Conclusions, ¶ 86), and what authority the Board might have to overturn an order, a directive, issued by the Department. [Transcript, pp. 14-18].
106. Petitioner’s motion for treatment of its appeal as an allegation, as a purely procedural matter, is initially subject to denial as it did not comply with any of the requirements of Chapter 4, § 3(c). There was, in particular, no due process notice given to the Department that its Directive 01-07 would be challenged in the hearing before the Board, a hearing in which the Department was not a party. Rules, Wyoming State Board of Equalization, Chapter 4, § 3(c)(iii)(J).
107. A second, and more substantive reason for denial of Petitioner’s request, is the fact the contested case hearing before the Board was clearly an “adequate proceeding” to remedy any implicit allegation the lots at issue had been improperly or unequally, or even illegally assessed by application of Department Directive 01-07. The Board, without question, has the statutory authority to hold contested case hearings, and it is our firm belief the language of Wyo. Stat. Ann. § 39-11-102.1(c)(iv) does not in any manner restrict or limit the Board from reaching a decision and entering an order which may conflict with a Department directive if the Board concludes such directive mandates an action which is not supported by statutory or case authority. This is particularly the case when the action of the Department is not a properly promulgated rule which would have the force and effect of law. Rules, Wyoming State Board of Equalization, Chapter 4, § 3(c)(iii)(C); Conclusions, ¶¶ 94, 103.
108. The Wyoming Constitution requires all taxable property in Wyoming “shall be uniformly valued at its full value as defined by the legislature.” Wyoming Constitution, art. 15, § 11(a); Conclusions, ¶ 90.
109. The Wyoming Legislature has determined “full value” shall be “fair market value” which is statutorily defined for purposes of taxation. Wyo. Stat. Ann. §§ 39-13-103(b)(ii); 39-11-101(a)(vi); Conclusions, ¶¶ 90, 92, 93, 94.
110. The Wyoming Legislature has further specified the Department shall prescribe both the system for establishing fair market value as well as the approved methods and systems for determining fair market value using generally accepted appraisal standards. Wyo. Stat. Ann. §§ 39-11-102(c)(xv); 39-13-103(b)(ii); Conclusions, ¶ 94.
111. The Department, by Rule, has defined three acceptable methodologies for determining fair market value, i.e., sales comparison, cost, and income. Rules, Wyoming Department of Revenue, Chapter 9, §§ 6(a.)-(d.); Conclusions, ¶ 94.
112. The Department, by statute, is also required to give instruction and direction to the county assessors, which the assessors are statutorily required to “faithfully and diligently follow.” Wyo. Stat. Ann. §§ 39-11-102(c)(xvi), (xix); 18-3-204(a)(ix); Conclusions, ¶¶ 95, 96.
113. An assessor thus has the statutory duty and responsibility to list, value, and assess all property within their respective county at its fair market value as of January 1st of each year. The assessor is to make this determination using one of three accepted methodologies, sales comparison, costs, and income, authorized by the Department. Conclusions, ¶¶ 91, 92, 93, 94, 95, 96, 111.
114. Fair market value, as defined by Wyoming statutes and Department Rule, incorporates the widely accepted concepts of willing, able, and knowledgeable buyers and sellers acting prudently to arrive at the most probable price for which property will sell as of a specified date. See, Appraisal Institute, The Appraisal of Real Estate, 12th Edition (2001), pp. 21-22. The specified date in Wyoming is January 1st of each year. Conclusions, ¶ 91.
115. Present worth, or present value, upon which Petitioner and the Assessor have both focused, is a much different concept. It is the result of discounting a stream of both income and expenses to be received and incurred in the future to arrive at a value as of a certain date.
Present worth - (1) The value of something after discounting future payments and receipts. (2) The present value of income that is expected to be received at some future date or dates, as ascertained by the process of discounting both the income and the anticipated expenses incident to its receipt.…
International Association of Assessing Officers, Glossary for Property Appraisal and Assessment, (1997), p. 106 (Emphasis in original).
116. What Petitioner proposes, and what the Park County Assessor has done in years prior to 2008, is a calculation of the present worth of the income to be generated by the future sale of lots in a subdivision based on a somewhat arbitrarily determined absorption period and discount rate. Facts, ¶¶ 39, 44, 45, 57, 58, 59, 64, 67. Such a calculation of worth is obviously much different than determining the fair market value of an individual lot as of January 1st of each year as is mandated by statute. Conclusions, ¶¶ 91, 92, 93. The focus of a determination of fair market value is defined by both Department Rules and Wyoming statutes:
[T]he amount in cash, or terms reasonable equivalent to cash, a well informed buyer is justified in paying for a property and a well informed seller is justified in accepting, assuming neither party to the transaction is acting under undue compulsion, and assuming the property has been offered in the open market for a reasonable time.
Conclusions, ¶ 93.
117. The concept of present worth, or present value, of an income stream from a group of lots or a development is important to bankers and lenders as that income stream is, in effect, their loan collateral. The fair market value of a property as calculated as of January 1st of each year is less important to a lender than the present value of an income stream, which defines the limits of the value of the group of lots or development as collateral. What is the present worth of the income stream this group of lots or development can generate on the date the loan is closed? A prudent lender would not lend more than the present worth of that income stream. Facts, ¶¶ 77, 79, 82.
118. The application of a developer discount also values property as an investment, not at its required fair market value.
Reduction by this method results in a determination of the properties' value to the current owner or their value as an investment. This is not the market value, which is the price that each property would receive on the open market. OAR 150-308.205(A)(1)(a).…
* * *There is no dispute that the highest and best use of each lot is for the construction of a single-family residence. Only by valuing the property at its highest and best use can the true cash value of a property be determined. Sabin v. Dept. of Rev., 270 Or. 422, 426-27, 528 P.2d 69 (1974). The developer's discount does not assess the value of the properties if put to their highest and best use, but reduces their value to arrive at the value of the properties considered as an investment. Investment is not the highest and best use of the properties.
First Interstate Bank of Oregon, N.A. v. Department of Revenue, 306 Or. 450, 760 P.2d 880, 883 (Ore. 1988).
119. An assessor is charged with the responsibility of determining the fair market value of property as of January 1st of each year, not the worth of the income which might be generated from the sale of lots in the future, or the value of property as an investment. The concepts of a fair market value and present worth are distinctly different. An assessor, by statute, is concerned with fair market value as defined by Wyoming statute and Department Rules. Conclusions, ¶¶ 91, 92, 93, 96, 114, 115.
120. There are, as well, significant constitutional and further statutory impediments to the use by a Wyoming assessor of a present worth valuation or developer discount to value fully developed subdivision lots.
121. The issue of whether a developer discount or present worth valuation methodology is constitutionally and statutorily appropriate appears to be one of first impression in Wyoming, not having been addressed in either an administrative or court proceeding. The issue has, however, been extensively addressed in other states.
122. A number of states, through their respective constitutions, each require, as does the Wyoming constitution, taxation be uniform and equal. For example:
The Michigan Constitution, art. 9, § 3, provides:
The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law. . . ..
Edward Rose Building Company v. Independence Township, 463 Mich. 620, 462 N.W. 2d 325, 329 (Mich. 1990).
Article XIII, section 2(1) of the Utah Constitution provides:
All tangible property in the state, not exempt under the laws of the United States, or under this Constitution, shall be taxed at a uniform and equal rate in proportion to its value, to be ascertained as provided by law.
Section 3 of the same article provides in part:
The Legislature shall provide by law a uniform and equal rate of assessment on all tangible property in the state according to its value in money....
Board of Equalization of Salt Lake County v. Utah Tax Commission ex rel. Benchmark, Inc., 864 P.2d 882, 884 (Utah 1993).
Article 11, § 1(b) of the Kansas Constitution provides:
(1) The provisions of this section (b) shall govern the assessment and taxation of property on and after January 1, 1989, and each year thereafter. Except as otherwise hereinafter specifically provided, the legislature shall provide for a uniform and equal basis of valuation and rate of taxation of all property subject to taxation.... (Emphasis added.)
The legislature, in answer to the constitutional mandate that it provide for a uniform and equal basis for taxation, has enacted various statutory provisions. K.S.A.1993 Supp. 79-1439(a) states that all real property which is subject to ad valorem taxation shall be appraised uniformly and equally as to class ... .
Hixon v. Lario Enterprises, Inc., 19 Kan. App. 2d 643, 875 P.2d 297, 300 (Kansas 1994). See also, Hixon v. Lario Enterprises, Inc., 257 Kan. 377, 892 P.2d 507 (Kansas 1995).
123. Each of those state, as well as others, require, as does Wyoming, valuation for tax assessment purposes be at fair market value, or true cash value, which terms are equivalent.
The Michigan Constitution, art. 9, § 3, provides:
The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law. The legislature shall provide for the determination of true cash value of such property . . . .
The Legislature accordingly provided a definition of cash value which, during the tax years in question,FN3 stated in relevant part:
FN3. The statute was amended by 1985 P.A. 200. The amendments do not pertain to the issue at hand.
As used in this act, cash value means the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale....
Edward Rose Building Company v. Independence Township, 462 N.W.2d at 329.
These two sections expressly require that property be taxed according to its value and its value in money. In State ex rel. Cunningham v. Thomas, 16 Utah 86, 90, 50 P. 615, 615-16 (1897), we construed this language to mean that property should be valued as near as is reasonably practicable, at its full cash value; in other words, the valuation for assessment and taxation shall be, as near as is reasonably practicable, equal to the cash price for which the property valued would sell in the open market. Utah Code Ann. § 59-2-102(7) defines fair market value as the amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts.
Board of Equalization of Salt Lake County v. Utah Tax Commission ex rel. Benchmark, Inc., 864 P.2d at 885.
[F]air market value as defined by K.S.A.1993 Supp. 79-503a which provides:
Fair market value means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. For the purposes of this definition it will be assumed that consummation of a sale occurs as of January 1.
Hixon v. Lario Enterprises, Inc., 875 P.2d at 300.
Because this case focuses upon the Supervisor's determination of the full cash value of the subdivision lots, we begin our analysis by examining the statutory requirement of full cash value. Article 81, § 14(b)(1)(i) provides that [a]ll real property required by this article to be assessed shall be valued at its full cash value on the date of finality. In Rogan v. Commrs. of Calvert County, 194 Md. 299, 71 A.2d 47 (1950), this Court addressed the determination of full cash value. Judge Delaplaine, writing for the Court, declared:
Ordinarily the cash value of property is the market value. Schley v. Montgomery County Com'rs, 106 Md. 407, 410, 67 A. 250. But, as Justice White said in San Francisco National Bank v. Dodge, 197 U.S. 70, 25 S.Ct. 384, 386, 49 L.Ed. 669, the market value of property is the value a willing purchaser will pay for it to a willing seller in open market, eliminating exceptional and extraordinary conditions giving the property temporarily an abnormal value.
St. Leonard Shores Joint Venture v. Supervisor of Assessments of Calvert County, 307 Md. 441, 514 A.2d 1215, 1217 (Md. 1986).
124. An assessor’s responsibility is to determine the fair market value of property as of the lien date, not a projected sale date sometime in the future, with application of a discount factor to bring that value back to the lien date.
The statutory scheme for valuing property for tax purposes is a surrogate for a real marketplace event; the statute requires the appraiser to pretend, in effect, that each piece of property is sold on January 1 of the year in which the appraisal is done in an arms length transaction. In this imaginary sale, the price paid by a well informed buyer and accepted by a well informed seller, each acting without undue compulsion, constitutes the fair market value at which a particular piece of property must be appraised.
Hixon v. Lario Enterprises, Inc., 875 P.2d at 300.
Since Rogan, we have repeatedly recognized the willing purchaser-willing seller standard as the ordinary mode of measuring full cash value. [Citations omitted].Thus, for purposes of measuring full cash value, the assessor should assume that a willing buyer and a willing seller wish to engage in a hypothetical sale of the property to be assessed.
In disputing the Supervisor's assessment of the 105 unsold lots, appellant emphasizes that [t]he problem...is that you didn't have 105 buyers, you had twelve-seven the first year and five the next year. Appellant's argument misses the point. Regardless of whether a buyer for each lot actually exists, the assessor is required to assess each lot as if a willing buyer exists. This is not to say that a glut on the market should not be considered. We think, however, that the condition of the real estate market is adequately reflected in the price that the hypothetical buyer would be willing to pay. Therefore, we reject appellant's contention relating to the sell-out period of the lots.
St. Leonard Shores Joint Venture v. Supervisor of Assessments of Calvert County, 514 A.2d. at 1217. [Emphasis in original].
See also, Board of Equalization of Salt Lake County v. Utah Tax Commission ex rel. Benchmark, Inc., 864 P.2d at 888.
125. The developer discount relies upon the criteria of ownership. Fair market value or cash value of a property are not dependent on who owns it.
The law requires that fair market value be based on the valuation of the property owned, not the status of the owner of the property and the number of lots owned. This is not to say that each parcel in a given tract must be valued using the same method of valuation. However, the method of valuation should be tied to factors associated with each parcel of property, not the status of the owner of the property.
Hixon v. Lario Enterprises, Inc., 257 Kan. 377, 892 P.2d 507, 511 (Kansas 1995). See also, Hixon v. Lario Enterprises, Inc., 875 P.2d at 302.
Noticeably absent from the statutory definition of cash value and those enumerated factors which an assessor must consider is any reference to the identity of the person owning an interest in the property or whether there are other parcels which are owned by the same taxpayer. M.C.L. § 211.27; M.S.A. § 7.27. In other words, the fact of ownership is not a germane consideration in determining value:
The Constitution requires assessments to be made on property at its cash value. This means not only what may be put to valuable uses, but what has a recognizable pecuniary value inherent in itself, and not enhanced or diminished according to the person who owns or uses it. Washtenaw Co., supra, 422 Mich. p. 370, n. 4, 373 N.W.2d 697, quoting Perry v. Big Rapids, 67 Mich. 146, 147, 34 N.W. 530 (1887). (Emphasis in original.)
Edward Rose Building Company v. Independence Township, 462 N.W.2d at 334.
See also, Board of Equalization of Salt Lake County v. Utah Tax Commission ex rel. Benchmark, Inc., 864 P.2d at 887.
126. The developer discount also violates valuation uniformity requirements.
Notwithstanding the uniform method of appraisal, the Commission discounted the retail value of the Benchmark lots, acknowledging that the same discount is unavailable for owners of individual lots in the same subdivision. This nonuniform application of the discount permits two residential lots of equivalent retail value to be taxed at different rates, not because of any real difference in the properties or their fair market value, but because one owner owns multiple lots and the other does not. Such a scheme is not uniform and equal and does not distribute the burden of taxation in proportion to the value of property owned.
* * *
The premise of absorption valuation is that by listing all of his or her lots for sale, a developer gluts the market-the number of lots for sale exceeding the number of willing buyers. In this predicament, the developer is forced to sell lots over time as willing buyers become available. This reasoning, according to the Commission, justifies a developer discount reflecting the absorption period. However, the seller of a single lot is in the same predicament. By listing his or her single lot for sale, an owner competes with all other sellers of similar lots for a sale to a limited number of willing buyers. It is possible, and in many cases probable, that the single lot will not be sold in the first tax year. The number of sales the market will bear impacts single lot owners and developers uniformly, but the Commission, by granting an absorption discount, softens the blow exclusively for developers.
For all these reasons, we conclude that an absorption discount violates sections 2 and 3 of article XIII of the Utah Constitution.
Board of Equalization of Salt Lake County v. Utah Tax Commission ex rel. Benchmark, Inc., 864 P.2d at 886-888. See Conclusions ¶ 122.
The uniformity requirement of the Michigan Constitution compels the assignment of values to property upon the basis of the true cash value of the property and not upon the basis of the manner in which it is held.
* * *
Affording a discount to the multilot owner provides advantageous treatment upon the basis of a factor unrelated to the land itself. It would produce an inherent preference in favor of developers, as opposed to taxpayers who own single or scattered lots. Sup'r of Assessments of Calvert Co. v. St. Leonard Shores Joint Venture, supra, 61 Md.App. p. 215, 486 A.2d 206. Two identical lots, available for the same ultimate use, would not be equally taxed. . . .
We conclude that the disparity in treatment which results from the tribunal's method of valuation is not permissible under the uniformity provisions of the Michigan Constitution.
Edward Rose Building Company v. Independence Township, 462 N.W.2d at 334. See Conclusions ¶ 122.
This court, defining the concept of constitutionally valid tax assessment, has said:
Uniformity in taxing implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation.... [Citations omitted.]
It is apparent that uniformity is necessary in valuing property for assessment purposes so that the burden of taxation will be equal. [Citation omitted.
* * *
The developer's discount method of valuation is based upon ownership and is not based upon the value of each parcel of property as mandated by K.S.A.1993 Supp. 79-501. The developer's discount method of valuation, as applied to the facts of this case, systematically favors the owners of multiple lots over the owners of single lots within a subdivision. Such method of valuation systematically favors the developers of subdivisions over the owners of lots located throughout the taxing unit. Therefore, the developer's discount method of valuation, as applied, is unconstitutional and violative of the Kansas statutory scheme of valuing property for ad valorem tax purposes.
Hixon v. Lario Enterprises, Inc., 875 P.2d at 302, 304. See Conclusions ¶ 122.
127. In Park County, in the years prior to 2008, when a developer discount was in use, once a lot in a subdivision was sold, it was valued at full fair market value. Even the unsold lots in a subdivision still owned by the developer were valued at full fair market value after 80 percent of the lots in the subdivision had been sold. Facts, ¶¶ 45, 59,
128. Our limited research indicates some form of developer discount is permitted in Colorado, as testified by Mr. Meyer, as well as in the states of Pennsylvania, South Carolina, and Indiana. The developer discount in each of those states has, however, been authorized by statute. There is no equivalent Wyoming statute. Facts, ¶¶ 17, 43, 60; 53 Pa. Stat. § 10513; 72 Pa. Stat. 5453.602a; Kan. Stat. Ann. 79-501; S. C. Code Ann. § 12-43-224; Colo. Rev. Stat. Ann. § 39-1-103; Ind. Code § 6-1.1-4.12.
129. A developer discount statute adopted by the Oregon Legislature in 1989 was subsequently held unconstitutional. Mathias v. Department of Revenue, State of Oregon, 312 Or. 50, 817 P.2d 272 (Ore. 1991).
130. The Wyoming constitution and statutes require taxation and valuation be uniform and at fair market value. It is the State Board’s conclusion, based upon the judicial reasoning from states with similar constitutional and statutory provisions, with which we agree, the application of a developer discount is inconsistent with the Wyoming requirements of uniform taxation and valuation and assessment at fair market value. Conclusions, ¶¶ 90, 92, 93.
131. The Department directive is binding upon a Wyoming assessor, and properly prohibits a valuation procedure which contravenes the Wyoming constitution and appropriate statutes. Conclusions, ¶¶ 95, 96, 130.
132. It is further the Board’s conclusion Petitioner failed to overcome the presumption in favor of the Assessor’s 2008 valuations. Conclusions, ¶¶ 99, 100.
IT IS THEREFORE HEREBY ORDERED:
(a) Petitioner’s motion to convert this appeal to consideration of an “allegation” pursuant to Rules, Wyoming State Board of Equalization, Chapter 4, is denied; and
(b) The 2008 valuations established by the Respondent Assessor without application of a developer discount for each of the properties under appeal in the Panorama View Addition Phase III and Canyon Village II Planned Unit Development are affirmed.
Pursuant to Wyo. Stat. Ann. § 16-3-114 and Rule 12, Wyoming Rules of Appellate Procedure, any person aggrieved or adversely affected in fact by this decision may seek judicial review in the appropriate district court by filing a petition for review within 30 days of the date of this decision.
DATED this day of December, 2009.
STATE BOARD OF EQUALIZATION
Thomas D. Roberts, Chairman
Steven D. Olmstead, Vice-Chairman
Wendy J. Soto, Executive Secretary
CERTIFICATE OF SERVICE
I hereby certify that on the ______ day of December, 2009, I served the foregoing FINDINGS OF FACT, CONCLUSIONS OF LAW, DECISION AND ORDER by placing a true and correct copy thereof in the United States Mail, postage prepaid, and properly addressed to the following:
Mr. Doug Brandt
Park County Assessor
1002 Sheridan Avenue
Cody WY 82414
Mountain Holding Inc.
Glenn W. Neilson
PO Box 1450
Cody WY 82414
James F. Davis
Park County Attorneys
1002 Sheridan Avenue
Cody WY 82414
Brent R. Kunz
Scott W. Meier
PO Box 1208
Cheyenne WY 82003-1208
Jana R. Fitzgerald
State Board of Equalization
P.O. Box 448
Cheyenne, WY 82003
Phone: (307) 777-6989
Fax: (307) 777-6363
Edmund J. Schmidt, Director, Department of Revenue
Marvin Applequist, Property Tax Division, Department of Revenue
Commission/Treasurer/Clerk - Park County
ABA State and Local Tax Reporter