BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

THE FREMONT COUNTY ASSESSOR )

FROM A DECISION OF THE FREMONT ) Docket No. 2009-110

COUNTY BOARD OF EQUALIZATION )

2009 PROPERTY VALUATION )

(Deanna Trumble Property) )

DECISION AND ORDER

APPEARANCES

Jodi A. Darrough, Deputy Fremont County and Prosecuting Attorney, for Eileen Oakley, Fremont County Assessor (Assessor/Petitioner).

Deanna Trumble (Taxpayer) did not appear.

ISSUES

The Assessor’s Opening Brief sets out a single issue:

Was the decision of the Fremont County Board of Equalization arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and/or unsupported by substantial evidence?

[Opening Brief of Petitioner, p. 4].

Taxpayer did not file a brief or otherwise participate in the appeal of the Fremont County Board of Equalization (County Board) decision.

DIGEST

This is an appeal from a decision of the County Board reversing Ms. Oakley’s valuation of Ms. Trumble’s property as residential for 2009 tax purposes. Ms. Oakley’s Notice of Appeal was filed with the State Board of Equalization (State Board) effective August 21, 2009. Ms. Oakley filed a brief as allowed by the September 16, 2009, State Board Briefing Order. Taxpayer did not file a brief or otherwise participate in this appeal neither party requested oral argument.

The State Board, comprised of Thomas D. Roberts, Chairman, Steven D. Olmstead, Vice-Chairman, and Deborah J. Smith, Board Member, considered Ms. Oakley’s Notice of Appeal, the Opening Brief of Petitioner, the County Board Record, and the decision of the County Board.

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

Ms. Oakley, in order to prevail, must establish the County Board decision is not supported by substantial evidence, and/or the County Board acted unlawfully, arbitrarily, and capriciously in reversing Ms. Oakley’s value for 2009 tax purposes.

We reverse the decision of the County Board.

PROCEEDINGS BEFORE THE COUNTY BOARD

The County Board conducted a hearing on July 13, 2009, at which Kevin Green, Ms. Trumble’s spouse, and Eileen Oakley, Fremont County Assessor, each testified and presented exhibits. The County Board entered its Decision on August 1, 2009, reversing Ms. Oakley’s 2009 fair market value for Taxpayer’s property, and ordering her to assess Taxpayer’s property based on an agricultural classification. The decision was mailed to the parties on August 3, 2009. [County Board Record, Vol. I, pp. 6, 62-65].

JURISDICTION

The State Board is required to “hear appeals from county boards of equalization.” Wyo. Stat. Ann. § 39-11-102.1(c). Ms. Oakley filed a timely appeal of the County Board decision with the State Board effective August 21, 2009. Rules, Wyoming State Board of Equalization, Chapter 3 § 2.

STANDARD OF REVIEW

When the State Board hears appeals from a County Board, it acts as an intermediate level of appellate review. Laramie County Board of Equalization v. Wyoming State Board of Equalization, 915 P.2d 1184, 1188 (Wyo. 1996); Union Pacific Railroad Company v. Wyoming State Board of Equalization, 802 P.2d 856, 859 (Wyo. 1990). In its appellate capacity, the State Board treats the County Board as the finder of fact. Id. In contrast, the State Board acts as the finder of fact when it hears contested cases on appeal from final decisions of the Department of Revenue (Department). Wyo. Stat. Ann. § 39-11-102.1(c). This sharp distinction in roles is reflected in the State Board Rules governing the two different types of proceedings. Compare Rules, Wyoming State Board of Equalization, Chapter 2 with Rules, Wyoming State Board of Equalization, Chapter 3. Statutory language first adopted in 1995, when the State Board and the Department were reorganized into separate entities, does not express the distinction between the State Board’s appellate and de novo capacities with the same clarity as our long-standing Rules. 1995 Wyo. Sess. Laws, Chapter 209, § 1; Wyo. Stat. Ann. § 39-1-304(a) (currently Wyo. Stat. Ann. § 39-11-102.1(c)).

The State Board standards for review of a County Board decision are, by Rule, nearly identical to the Wyoming Administrative Procedure Act standards which a district court must apply to hold unlawful and set aside agency action, findings of fact, and conclusions of law. Wyo. Stat. Ann. § 16-3-114(c)(ii). However, unlike a district court, the State Board will not rule on claims a County Board has acted “[c]ontrary to constitutional right, power, privilege or immunity.” Wyo. Stat. Ann. § 16-3-114(c)(ii)(B). The State Board’s review is limited to a determination of whether the County Board action is:

(a) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(b) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;

(d) Unsupported by substantial evidence.

Rules, Wyoming State Board of Equalization, Chapter 3 § 9.

Since the State Board Rules are patterned on the judicial review provision of the Wyoming Administrative Procedure Act, we look to precedent under Wyo. Stat. Ann. § 16-3-114(c) for guidance. For example, we must apply this substantial evidence standard:

When [a person] challenges a [county board]'s findings of fact and both parties submitted evidence at the contested case hearing, we examine the entire record to determine if the [county board]'s findings are supported by substantial evidence. Colorado Interstate Gas Co. v. Wyoming Department of Revenue, 2001 WY 34, ¶ 8, 20 P.3d 528, 530 (Wyo.2001); RT Commc'ns, Inc. v. State Bd. of Equalization, 11 P.3d 915, 920 (Wyo.2000). If the [county board]'s findings of fact are supported by substantial evidence, we will not substitute our judgment for that of the [county board] and will uphold the factual findings on appeal. “Substantial evidence is more than a scintilla of evidence; it is evidence that a reasonable mind might accept in support of the conclusions of the agency.” Id.

Chevron U.S.A., Inc. v. Department of Revenue, 2007 WY 79, ¶ 9, 158 P.3d 131, 134 (Wyo. 2007).

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

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

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

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

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

State ex rel. Wyoming Workers’ Safety and Comp. Div. v. Madeley, 2006 WY 63, ¶ 8, 134 P.3d 281, 284 (Wyo. 2006).

FACTS PRESENTED TO THE COUNTY BOARD

1. Deanna Trumble owns and resides on 18.56 acres at 2238 Baldwin Creek Road, east of Lander, in Fremont County, Wyoming. [County Board Record, Vol. I, Exhibit A, p. 9; Exhibit B, p. 17; Vol. II, Hearing Recording].

2. Ms. Trumble submitted an Application for Agricultural Classification to Ms. Oakley on February 26, 2009. She certified: 1) The land is presently being used and employed for the cultivation of the soil for production of crops; 2) The land is not part of a platted subdivision; 3) The land is not leased land and the owner has derived annual gross revenues of not less than five hundred dollars from the marketing of agricultural products; and 4) The land has been used consistent with the land’s size, location and capability to produce as an agricultural operation as defined by Department Rules and Mapping & Agricultural Manual. Ms. Trumble also attached to the Application a receipt showing a single sale of hay for $540. [County Board Record, Vol. I, Exhibit F, pp. 40-42].

3. Ms. Oakley sent Ms. Trumble a Notice of Assessment dated April 14, 2009, listing the total market value of her property and improvements at $531,140. The land was classified as residential and valued by Ms. Oakley at $224,667. The remainder of the assessment, $306,473, was the value assigned by Ms. Oakley to the single family residence located on the property. [County Board Record, Vol. I, Exhibit B, p. 17; Vol. II, Hearing Recording].

4. Ms. Trumble filed a Statement To Contest 2009 Property Tax Assessment on April 23, 2009, stating, in summary, the assessment was incorrect for the following reasons:

(1) The land is presently being used for an agricultural purpose.

(2) The land is not part of a platted subdivision.

(3) The land is not leased and has grossed over $500 in agricultural products.

(4) The land has been used consistent with it’s size, location, and capability.

[County Board Record, Vol. I, pp. 1-5G].

5. Kevin Green, Ms. Trumble’s spouse, testified on her behalf at the July 13, 2009, County Board hearing. Mr. Green stated Ms. Trumble was contesting Ms. Oakley’s action because the land at issue was being used for an agricultural purpose consistent with its capability to produce. [County Board Record, Vol. II, Hearing Recording].

6. Mr. Green testified the 18.56 acres owned by Ms. Trumble has no roads, and no improvements other than the residence. It is not part of a platted subdivision. [County Board Record, Vol. II, Hearing Recording].

7. Mr. Green stated that of the 18.56 acres, only 10 acres could be irrigated to raise hay. He indicated that while in prior years the property had been leased, it was not leased in 2008. It produced, in 2008, 9 tons of hay, 6 tons of which were sold for $540. The remaining 3 tons Ms. Trumble and Mr. Green kept for their animals. He indicated the cutting and bailing of the hay was contracted. Neither Mr. Green nor Ms. Trumble have any haying equipment. [County Board Record, Vol. II, Hearing Recording].

8. Mr. Green stated the hay meadow is ditch-irrigated. It is basically free of noxious weeds such as leafy spurge primarily as the result of weed suppression activities including spraying. The acreage which adjoin the Trumble property are infested with noxious weeds. [County Board Record, Vol. II, Hearing Recording].

9. Mr. Green told the County Board hay was sold in 2008 only to meet the $500 statutory minimum for agricultural classification. [County Board Record, Vol. II, Hearing Recording].

10. Neither Mr. Green nor Ms. Trumble offered any alternate method for determining whether use of the property met the statutory requirements for agricultural classification.

11. Eileen Oakley testified she was the Fremont County Assessor and was certified as a property tax appraiser by the State of Wyoming. [County Board Record, Vol. II, Hearing Recording].

12. Ms. Oakley presented a complete description of Ms. Trumble’s property. She agreed the market value of the buildings was not in dispute, only the classification of a portion of Ms. Trumble’s land as residential rather than agricultural. [County Board Record, Vol. I, Exhibit A, p. 9; Vol. II, Hearing Recording].

13. Ms. Oakley testified that in order to qualify for agricultural classification, a property must meet the four conditions of the statutes and rules which govern such classification. The statutes outline those conditions, and Chapter 10 of the Department Rules further define the conditions. [County Board Record, Vol. I, Exhibit A, pp. 10-16; Exhibits D & E; Vol. II, Hearing Recording].

14. Ms. Oakley testified to the statutory requirement the land must be used and employed for an agricultural purpose in order to qualify for agricultural classification. She pointed out Chapter 10, Section 3(a)(ii)(B) of the Department Rules require her to “consider that certain activities which appear to be agricultural in nature do not by themselves qualify land for agricultural assessment. The activity, by itself, either does not raise the expectation of monetary incentive consistent with the capability of the land to produce or occurs after the agricultural product has been raised and harvested.” Ms. Oakley asserted Ms. Trumble’s parcel was not being used consistent with its capability to produce. Considering all requirements, not just the appearance of the land, it was her opinion Ms. Trumble’s land did not qualify for agricultural classification. [County Board Record, Vol. I, Exhibit A, p. 16; Vol. II, Hearing Recording].

15. Ms. Oakley agreed Ms. Trumble’s property was not part of a platted subdivision. [County Board Record, Vol. I, Exhibit A, p. 13; Vol. II, Hearing Recording].

16. Ms. Oakley also agreed Ms. Trumble’s single receipt showed income of $540, which was more than the statutory minimum gross revenue requirement of $500. [County Board Record, Vol. I, Exhibit A, p. 13; Exhibit F, p. 42; Vol. II, Hearing Recording].

17. Ms. Oakley discussed as well the fourth qualification for agricultural status, that “[t]he land has been used or employed, consistent with the land’s size, location and capability to produce as defined by the department rules and the mapping and agricultural manual published by the department, primarily in the agricultural operation…,” where primarily means chiefly or of the first importance. [County Board Record, Vol. I, Exhibit A, pp. 13-16; Vol. II, Hearing Recording].

18. Ms. Oakley prepared a quantitative analysis to determine whether Ms. Trumble had used her land consistent with its capability to produce. Ms. Oakley first subtracted two acres from the total acreage of 18.56 acres to account for a residential farmstead as required by the Department Rules. She then determined a productive capability for the remaining 16.56 acres using elements of the methods prescribed by the Department for valuation of all agricultural lands. Her review of aerial photographs of the property indicated only approximately 6.18 acres, not 10 acres as indicated by Mr. Green, could actually be classified as irrigated land to determine productive capability. The remaining 3.18 acres of the hay meadow, and the balance of 6.8 acres of the property, were valued as grazing land. [County Board Record, Vol. I, Exhibit A, pp. 13-14; Vol. II, Hearing Recording].

19. Ms. Oakley used the methods prescribed by the Department to determine the productive capability of Ms. Trumble’s land. She used a Soil Survey to determine the land soil type for Ms. Trumble’s property. She then determined the productive value of Ms. Trumble’s soil type using the 2009 Agricultural Land Valuation Study authored by the Department. [County Board Record, Vol. I, Exhibit A. pp. 13-14; Exhibits G, H & I; Vol. II, Hearing Recording].

20. Using the described method, Ms. Oakley determined, based on the soil class for Ms. Trumble’s land, its productive capability should produce income of $1212. [County Board Record, Vol. I, Exhibit A, p. 14; Vol. II, Hearing Recording].

21. Since the land should be used consistent with its capability to produce but only six tons of hay were sold for $540, and no other income had been generated by the property, Ms. Oakley determined the land did not meet the requirement of producing agricultural products consistent with its size, location and capability to produce. [County Board Record, Vol. I, Exhibit A, p. 14; Vol. II, Hearing Recording].

22. In conclusion, Ms. Oakley asserted that while Ms. Trumble’s parcel had activities which appear to be agricultural, they did not meet all four of the statutory requirements for agricultural classification. Therefore, in Ms. Oakley’s opinion, Ms. Trumble’s land did not qualify for agricultural assessment. Its primary use was residential and, therefore, should be valued as residential. [County Board Record, Vol. I, Exhibit A, p. 16; Vol. II, Hearing Recording].

DISCUSSION OF ISSUES AND APPLICABLE LAW

General Legal Principles

23. 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.” (Emphasis added).

24. The Wyoming Constitution, article 15 § 11(d), requires “[a]ll 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.”

25. 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, except for a parcel of thirty-five (35) acres or more which otherwise qualifies as agricultural land;

(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).

26. 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).

27. 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).

28. 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).

29. The Department Rules also contain a definition of “non-agricultural lands” which provides in part:

(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:

* * *

(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.

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

30. The Department Rules also provide certain activities do not qualify land for agricultural valuation:

(B) The assessor shall also consider that certain activities which appear to be agricultural in nature do not by themselves qualify land for agricultural assessment. The activity, by itself, either does not raise the expectation of monetary incentive consistent with the capability of the land to produce or occurs after the agricultural product has been raised and harvested.

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

31. 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).

32. Our evaluation of this appeal turns, at least in part, on the question of whether there is substantial evidence in the record which reasonably supports the County Board decision. In determining whether the required substantial evidence is present, the State Board will not substitute its judgement for findings reasonably supported by evidence in the County Board record. Laramie County Board of Equalization v. State Board of Equalization, 915 P.2d 1184, 1188-1189 (Wyo. 1996); Holly Sugar Corp. v. Wyoming State Board of Equalization, 839 P.2d 959 (Wyo. 1992); Sage Club, Inc. v. Employment Sec. Comm’n., 601 P.2d 1306, 1310 (Wyo. 1979). While substantial evidence may be less than the weight of the evidence, it cannot be clearly contrary to the overwhelming weight of the evidence. The Wyoming Supreme Court has stated “[s]ubstantial evidence is a term of art best described as relevant evidence that a reasonable mind can accept as adequate support for an agency’s conclusion.” Sidwell v. State Workers’ Compensation Div., 977 P.2d 60, 63 (Wyo. 1999).

The Presumption in Favor of an Assessor’s Value

33. An assessor’s valuation is presumed valid, accurate, and correct. This presumption survives until overturned by credible evidence. Britt v. Fremont County Assessor, 2006 WY 10, ¶ 23, 126 P.3d 117, 125 (Wyo. 2006); Thunder Basin Coal Company v. Campbell County, Wyoming Assessor, 2006 WY 44, ¶ 13, 132 P.3d 801, 806 (Wyo. 2006); Teton Valley Ranch v. State Board of Equalization, 735 P.2d 107, 113 (Wyo. 1987). A mere difference of opinion as to value is not sufficient to overcome the presumption. J. Ray McDermott & Co. v. Hudson, 370 P.2d 364, 370 (Wyo. 1962); Thunder Basin Coal Company v. Campbell County, Wyoming Assessor, 2006 WY 44, ¶¶ 13, 48, 132 P.3d 801, 806, 816 (Wyo. 2006). The presumption is especially valid where the Assessor valued the property according to the Department’s Rules and Regulations. Rules, Wyoming Department of Revenue, Chapter 9 &10. “The burden is on the taxpayer to establish any overevaluation.” Hillard v. Big Horn Coal Co., 549 P.2d 293, 294 (Wyo. 1976).

34. 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.

Discussion

35. Ms. Oakley contends the County Board erred in reversing her decision to deny agricultural classification to Ms. Trumble’s land. She argues the County Board disregarded evidence the property has characteristics of residential land, and does not meet two of the four statutory requirements for agricultural classification. Her arguments specifically address whether use of the land comports with the requirements of subsections (B)(I) and (B)(IV) of Wyo. Stat. Ann. § 39-13-103(b)(x). She further argues the County Board findings were an arbitrary and capricious act not in accordance with law and not supported by substantial evidence.

36. As the Wyoming Supreme Court pointed out in Britt, supra, a protesting taxpayer has the initial burden of presenting sufficient credible evidence to overcome the presumption in favor of the valuation established by the assessor. If a taxpayer meets this initial burden, the burden of going forward shifts to the assessor to defend their valuation. The ultimate burden of proof - burden of persuasion - is, however, always borne by the protesting taxpayer. We therefore consider the County Board decision in light of this authority. Supra, ¶¶ 33, 34.

37. It is also important to remember in challenges to an assessor’s denial of agricultural classification that the Department Rules define “non-agricultural lands” to include parcels of less than 40 acres, and place the burden on the landowner to prove otherwise. Supra, ¶ 29.

38. The parties agreed Ms. Trumble’s land met two of the four statutory requirements for agricultural classification. The land was not part of a platted subdivision, and Ms. Trumble derived annual gross revenues of not less than $500 from the marketing of hay. Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(II) & (III), Supra, ¶¶ 6, 7, 9, 15, 16, 25. [County Board Record, Vol. I, Decision of the Fremont County Board of Equalization, p. 63].

39. The focus of Ms. Oakley’s complaints and our analysis, therefore, is on the first and fourth requirements of Wyo. Stat. Ann. section 39-13-103(b)(x)(B). Supra, ¶ 25.

A. Present Use for Agricultural Purpose

40. The first statutory requirement to qualify for agricultural valuation is the present use and employment of the land for an agricultural purpose. Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(I), Supra, ¶ 25.

41. “Agricultural purpose” is defined by statute:

“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

Wyo. Stat. Ann. § 39-13-101(a)(viii).

42. While we may be inclined to agree with Ms. Oakley that Ms. Trumble’s single hay sale raises questions concerning the agricultural use of her land, the uncontradicted evidence of hay production, with weed control and irrigation, and the subsequent sale of hay, constitutes substantial evidence from which the County Board could reasonably conclude Ms. Trumble met the requirement of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(I).

B. Use Consistent With Size, Location and Capability to Produce Primarily in an Agricultural Operation

43. The fourth requirement of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV) is that “[t]he 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….” Supra, ¶ 25.

44. Ms. Oakley argues Ms. Trumble failed to establish this fourth requirement for two reasons. First, an analysis of the productive capability of Ms. Trumble’s land indicates a capability to produce approximately $1212 in income, an amount in excess of Ms. Trumble’s reported sale of 6 tons of hay for $540. Second, the primary use of the small parcel with a $306,473 improvement is residential, not agricultural. [Opening Brief of Petitioner, pp. 5-7].

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

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

47. Ms. Oakley prepared a calculation to quantify her view Ms. Trumble did not use her land consistent with its capability to produce. Ms. Oakley first excluded two acres from Ms. Trumble’s parcel to account for the residence, as required by the Department Rules and consistent with her practice for other agricultural land in Fremont County. Rules, Wyoming Department of Revenue, Chapter 10 § 3(c)(iv). She then calculated a minimum production value of $1212 for the remaining 16.56 acres. Supra, ¶¶ 18, 19, 20. This calculation is consistent with statutory requirements and the Department mapping and agricultural manual, which we described in detail in other cases arising from Fremont County. E.g., Fremont County Assessor (Dechert Property), Docket No. 2004-125, February 4, 2005, 2005 WL 301141 (Wyo. St. Bd. Eq.). Finally, she compared this minimum value against the $540 income actually reported by Ms. Trumble. Based on this comparison, Ms. Oakley concluded Ms. Trumble had not employed her land consistent with its capability to produce. Supra, ¶ 21.

48. The classification and valuation of land as agricultural contemplates the sale of agricultural products. Wyo. Const., art. 15, § 11(b), supra, ¶ 23 (capability of the land to produce agricultural products); Wyo. Stat. Ann. §§ 39-13-103(b)(x)(A), supra, ¶ 25 (capability of the land to produce agricultural products); 39-13-103(b)(x)(B)(III), supra, ¶ 25 (derived annual gross revenues…from the marketing of agricultural products); 39-13-103(b)(x)(B)(IV), supra, ¶ 25 (production failure…marketing delay…will not yield income in the tax year…).

49. We have carefully reviewed the County Board recitation of Ms. Trumble’s arguments and the underlying facts presented at the County Board hearing. The County Board Decision acknowledged Ms. Oakley’s argument that Ms. Trumble’s production was inconsistent with the land’s size, location and capability to produce. [County Board Record, Vol. I, p. 63]. The County Board likewise acknowledged its own review of Ms. Oakley’s Exhibit A, which included her calculations. [County Board Record, Vol. I, p. 63]. The County Board decision nonetheless failed to address in any meaningful way Ms. Oakley’s undisputed and objective measurement of the degree to which Ms. Trumble actually used her land for agricultural purposes, and found generally that Ms. Trumble had met her burdens. [County Board Record, Vol. I, pp. 64-65].

50. We know the County Board both understood the fourth statutory requirement, and had accepted Ms. Oakley’s objective measure of a taxpayer’s agricultural land use in other cases. We have affirmed a decision by the Fremont County Board in large measure because the County Board accepted Ms. Oakley’s objective measure of the productive capability of a taxpayer’s land and concluded the taxpayer did not meet this fourth statutory requirement. Tory & Meredith Taylor, Docket No. 2007-70, ¶¶ 45, 61-69, March, 12, 2008, 2008 WL 755827 (Wyo. Stat. Bd. Eq.) We find nothing factual or legal in the County Board decision or the record to support the County Board’s failure to accept in this case Ms. Oakley’s objective measure of the degree to which Ms. Trumble’s land was used consistent with its capability to produce.

51. The Wyoming Supreme Court has noted that “a strong presumption favors the assessor's valuation,” and the ultimate burden of persuasion to prove the valuation determined by Ms. Oakley was not derived pursuant to constitutional and statutory requirements must be shouldered by the taxpayer challenging the value. Britt v. Fremont County Assessor, 2006 WY 10, ¶ 23, 126 P.3d 117, 125 (Wyo. 2006). Ms. Trumble did not fulfill her ultimate burden in this case. Supra, ¶ 34. She presented no evidence challenging Ms. Oakley's overall methodology used to determine whether the production capability requirement of agricultural land classification had been met.

52. We conclude Ms. Oakley established Ms. Trumble did not use her land consistent with its capability to produce. The County Board decision to the contrary is not supported by substantial evidence. The County Board failed to meaningfully address the evidence presented by Ms. Oakley. In light of the absence of evidence in the record from which the County Board could conclude Ms. Trumble established she used her land consistent with the capability of her land to produce, the County Board failed to properly invoke and apply the statutory requirement of Wyo. Stat. Ann. § 39-13-103(b)(x)(B)(IV). For these reasons we reverse the County Board’s decision.

53. There is some hint in the County Board Decision the fact Ms. Trumble’s property had previously been classified as agricultural was a factor in the decision to overturn Ms. Oakley’s determination and classify the property as agricultural in 2009. [County Board Record, Vol. I, p. 65]. It is important to keep in mind an assessor must, as required by statute, annually list, value and assess all property in the county as of January 1^st of each year. Wyo. Stat. Ann. § 39-13-103(b)(i)(A). What the classification of property might have been in prior years is thus not relevant to the determination of value or classification for a current year.

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ORDER

IT IS THEREFORE HEREBY ORDERED the decision of Fremont County Board of Equalization reversing Ms. Oakley’s decision to deny Ms. Trumble agricultural classification is reversed. The case is remanded to the County Board to reinstate Ms. Oakley’s residential classification of Ms. Trumble’s land.

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 11th day of May, 2010.

STATE BOARD OF EQUALIZATION

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Thomas D. Roberts, Chairman

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Steven D. Olmstead, Vice-Chairman

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Deborah J. Smith, Board Member

ATTEST:

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Wendy J. Soto, Executive Secretary