BEFORE THE STATE BOARD OF EQUALIZATION


FOR THE STATE OF WYOMING


IN THE MATTER OF THE APPEAL OF           ) 

SAND CREEK DEVELOPMENT                   )

SERVICES, III, INC., et al., FROM                 )         Docket No. 2009-15

A DECISION OF THE JOHNSON COUNTY   )

BOARD OF EQUALIZATION - 2008               )

PROPERTY VALUATION                                  )



ORDER OF PARTIAL DISMISSAL




           THIS MATTER having come before the State Board of Equalization Footnote (State Board) upon the Notice of Intent to Dismiss as to Lots Not Owned by Sand Creek Development Services, III, Inc., issued August 21, 2009, and the State Board having reviewed the file herein as well as the Objection to Notice of Intent to Dismiss as to Lots Not Owned by Sand Creek Development Services, III, Inc., and the Supplement to Objection, and being otherwise advised in the premises finds:


1.        There are 99 one-acre lots within the Sand Creek Ranch Conservation Community. [County Board Record, Vol. 3, Exhibit 6, p. 371]. Sand Creek Development Services, III, Inc. (Sand Creek) was, as of January 1, 2008, the record owner of 88 unsold lots. [County Board Record, Exhibit 15].


2.        The eleven lots (19, 20, 21, 23, 25, 41, 60, 81, 82, 85 and 86) not owned by Sand Creek Development Services, III, Inc., have been sold to nine different Taxpayers. [County Board Record, Vol. 1, pp. 62-63, 64, 66, 68, 84, 103, 124, 125, 128-129]. For each of these eleven lots, the address shown on the assessment schedule contained in the County Board Record is different than the address for the 88 lots owned by Sand Creek. [County Board Record, Vol. 1, pp. 62-63, 64, 66, 68, 84, 103, 124, 125, 128-129].


3.        John G. Jenkins, as representative of Sand Creek, testified at the County Board hearing he received the Assessment Notices for multiple parcels on Friday, August 22, 2008. [County Board Record, Vol 5, pp. 719, 723, 741, 753].


4.        Other than the dates printed on the Assessment Notices contained in the County Board Record, no testimony or other evidence was presented at the County Board hearing to establish when the Assessment Notices for the 11 lots owned by Taxpayers, other than Sand Creek, were mailed. [County Board Record, Vol I, pp. 62-63, 64, 66, 68, 84, 103, 124, 125, 128-129]. Assessment notices for the lots owned by Taxpayers, other than Sand Creek, are not contained in Petitioners’ Exhibit 15. [County Board Record, Exhibit 15, Vol 3, pp. 469-556].


5.        The only Assessment Notices for the 11 lots owned by Taxpayers other than Sand Creek contained in the County Board Record have a printed “Date Mailed” June 1, 2008, which is a Sunday, with an Assessment Date of 1/1/2007. [County Board Record, Vol 1, pp. 62, 63, 64, 66, 68, 84, 103, 124, 125, 128, 129].


6.        The Assessor acknowledged there was a problem with printing the Assessment Notices resulting in a number of Notices not being sent. Except for the large common areas, the Assessor did not particularize her testimony to the individual one-acre lots owned by Taxpayers other than Sand Creek, or state when the notices for those lots were sent. [County Board Record, Vol. 5, pp. 718-720, 722, 847-848].


7.        The County Board found the Statements of Protest for all lots were filed timely without explanation or citation to supporting evidence in the record. [County Board Record, Vol. 2, Order Upon Hearing, Findings of Fact 5, p. 298]. The exhibit cited by the County Board, Exhibit 16, contains copies of the Statements of Protest. Exhibit 16 does not contain any indication of the “date or postmark date of the assessment schedule.” See, Wyo. Stat. Ann. § 39-13-109(b)(i),(as in effect in 2008). Footnote


8.        In response to a concern expressed by the State Board regarding the jurisdiction of the County Board, counsel for Taxpayers and the Assessor filed with the State Board a joint Motion to Supplement the Record on Jurisdictional Facts dated July 30, 2009. The Motion, supported by an affidavit by John G. Jenkins, indicated the Statements of Protest for all Taxpayers were hand-delivered to the Johnson County Clerk and the Johnson County Assessor on September 19, 2008. Mr. Jenkins’ affidavit and attached envelope established the assessment schedules for Lots 1-18, 22, 24, 26-40, 42-59, 61-80, 83-84, 87-99 of the Sand Creek Ranch Conservation Community were postmarked on August 21, 2008. The amount of postage supports the affidavit’s statement multiple notices were included in the envelope. [State Board Record, Motion to Supplement the Record on Jurisdictional Facts].


9.        The Assessment Notices identified by Mr. Jenkins’ Affidavit as being received in the envelope “are in the Johnson County Board of Equalization record at pages 469-556.” [State Board Record, Motion to Supplement the Record on Jurisdictional Facts]. The affidavit reference is to Exhibit 15 which contains the notices for the 88 unsold lots assessed in the name of Sand Creek. [County Board Record, Exhibit 15, Vol 3, pp. 469-556]. The pages referenced in the affidavit do not include Assessment Notices for the 11 lots not owned by Sand Creek. [County Board Record, Exhibit 15, Vol. 3, pp. 469-556].


10.      The Statements of Protest for all lots within Sand Creek were not dated. The notary certificate on each notice, however, indicated each Statement was signed on September 19, 2008. [County Board Record, Vol. 1, pp. 2-37; Exhibit 16, Vol. 3, pp. 557-601].


11.      None of the Statements of Protest had Assessment Notices or envelopes attached. [County Board Record, Vol. 1, pp. 2-37, Exhibit 16, Vol. 3, pp. 557-601].


12.      Taxpayers, on September 19, 2009, in response to the State Board’s Notice of Intent to Dismiss, filed an Objection to Notice of Intent to Dismiss as to Lots Not Owned by Sand Creek Development Services, III, Inc., and a Supplement to Objection. The Objection and Supplement were supported by affidavits and exhibits sufficient to indicate the Statements of Protest for Lots 19, 20, 23, 41, 60, 82, 85 and 86, Sand Creek Ranch Conservation Community were timely filed, and the Johnson County Board of Equalization thus had jurisdiction to consider the appeals of the 2008 valuation of those properties. There were, however, no affidavits or exhibits, or any other documentation supplied with the Objection and Supplement, which addressed the question of the County Board jurisdiction to hear appeals regarding the 2008 values for Lots 21, 25, and 81, Sand Creek Ranch Conservation Community.


13.      The 30-day time frame, as measured from the date or postmark of an assessment schedule, in which to file an appeal to a county board of equalization, is set by statute. Wyo. Stat. Ann. § 39-13-109(b)(i),(as in effect in 2008).


14.      The “Date Mailed” on the assessment notices for Lots 21, 25, and 81 was June 1, 2008, a Sunday. The notices, even if mailed on that date, June 1, 2008, may well have not been postmarked until the following Monday, June 2, 2008. We will, therefore, consider the notices to have been postmarked June 2, 2008. Absent information in the County Board Record establishing a different mailing date from June 2, 2008, the only conclusion supported by the record is that the Statements of Protest for Lots 21, 25, and 81, as filed September 19, 2008, were not timely. The last day to file a timely appeal from an assessment notice mailed June 2, 2008, was July 2, 2008. [County Board Record, Vol 1, pp. pp. 62-63, 64, 66, 68, 84, 103, 124, 125, 128-129].


15.      The failure to file an appeal with an Assessor within the statutory 30 day time frame is a jurisdictional defect which the State Board must independently consider even if not raised by any party. Motley v. Platte County, 2009 WY 147, ¶ 3, 220 P.3d 518, 520 (Wyo. 2009); Plymale v. Donnelly, 2006 WY 3, ¶ 4, 125 P.3d, 1022, 1023 (Wyo. 2006); Robbins v. South Cheyenne Water & Sewage Dist., 792 P.2d 1380, 1384. This jurisdictional defect can not be cured by consent of the parties or by waiver, in particular in appeals to a county board of equalization wherein the appeal time frame is set by statute. Wyo. Stat. Ann. § 39-13-109(b)(i); In re Adoption of CF, 2005 WY 118, ¶ 30, 120 P.3d 992, 1003 (Wyo. 2005); Miller v. Murdock, 788 P.2d 614, 616 (Wyo. 1990); Hollister Convalescent Hospital, Inc. v. Rico, 541 P.2d 1349, 1354 (Cal. 1975); Bowman v. Worland School District, 531 P.2d 889, 890 (Wyo. 1975); Sun Land & Cattle Co. v. Brown, 387 P.2d 1004, 1006 (Wyo. 1964).            

16.      The Johnson County Board of Equalization did not have jurisdiction to consider the protest of the 2008 valuation of Lots 21, 25, and 81, Sand Creek Ranch Conservation Community. The State Board, therefore, has no better jurisdiction than the County Board, and is without jurisdiction to consider the 2008 valuation protests for Lots 21, 25, and 81. Motley v. Platte County, 2009 WY 147, ¶ 3, 220 P.3d 518, 520 (Wyo. 2009).






THIS SPACE INTENTIONALLY LEFT BLANK



           IT IS THEREFORE HEREBY ORDERED the appeals from the decision of the Johnson County Board of Equalization with regard to the 2008 value of Lots 21, 25, and 81, Sand Creek Ranch Conservation Community are dismissed with prejudice.



                      DATED this day of March, 2010.



                                                                  STATE BOARD OF EQUALIZATION





                                                                  _____________________________________

                                                                  Thomas D. Roberts, Chairman





                                                                  _____________________________________

                                                                  Steven D. Olmstead, Vice-Chairman



ATTEST:




________________________________

Wendy J. Soto, Executive Secretary