STATE TAX COMMISSION OF MISSOURI
|LAIDLAW WASTE SYSTEMS, INC.,
BRIDGETON LANDFILL, LLC (as Successor by Merger),
|Complainant,||)||Appeal Nos. 19-14576 through 19-14592|
|)||Parcel Nos. (Table Included)|
|JAKE ZIMMERMAN, ASSESSOR,||)|
|ST. LOUIS COUNTY, MISSOURI,||)|
DECISION AND ORDER
Laidlaw Waste Systems, Inc., Bridgeton Landfill, LLC, as Successor by Merger (Complainant) appeals the St. Louis County Board of Equalization’s (BOE) decision determining the true value in money (TVM) of 17 parcels associated with the West Lake Landfill in Bridgeton, Missouri. Complainant alleges overvaluation and asserts the parcels have no market value.
Complainant produced substantial and persuasive evidence showing 15 of the 17 parcels had no market value as of January 1, 2019. Complainant did not produce substantial and persuasive evidence showing the remaining two parcels had no market value as of January 1, 2019. The BOE decisions for the 15 parcels with no market value are SET ASIDE. The BOE decisions for the remaining two parcels are AFFIRMED.
Complainant is represented by attorney Nicholas Roark. Respondent is represented by attorney Steven Robson. The parties waived an evidentiary hearing and submitted the appeals on the record.
FINDINGS OF FACT
- The Subject Properties. The 17 subject properties are part of a 320.41 acre assemblage located on and around the closed West Lake Landfill complex in Bridgeton, Missouri. (Ex. A at 14, 30) The subject properties total 114.30 acres. The properties lie along the 12000 and 13000 blocks of St. Charles Rock Road and Boenker Lane. The parcels range from .30 to 49.04 acres. There are 15 buildings spread across the subject properties. The buildings range from 144 to 20,460 square feet and have a combined area of 49,101 square feet. (Ex. A at 6)
The majority of the acreage encompassed by the subject properties lies within an area included on the National Priorities List pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. sections 9601-9657, commonly referred to as “Superfund.” The acreage within the Superfund site is subject to ongoing environmental monitoring and remediation efforts administered by the United States Environmental Protection Agency (EPA).
The subject properties are in four different areas of the West Lake landfill assemblage. One of the subject properties lies in the northwest part of the assemblage in the “Buffer Zone” within Operating Unit 1. It is irregularly shaped and contains 1.79 acres. (Ex. A at 33) This property is the subject of Appeal No. 19-14592.
Another subject property lies in the northeast part of the assemblage and consists of most of the closed demolition landfill and part of an adjacent sanitary landfill. It is irregularly shaped and has 28.65 acres. (Ex. A at 33-34) This property is located entirely within the Superfund site. (Ex. A at 18, 34-35). This parcel is the subject of Appeal No. 19-14591.
Two subject properties lie on southwest side of Boenker Lane. These properties cover 13.04 acres. The majority of this acreage is used for stormwater detention. Both parcels are accessed by a single driveway from Boenker Lane. Neither parcel is within the Superfund site. (Ex. A at 34) These parcels are the subjects of Appeal Nos. 19-14588 and 19-14589.
The final group of properties consists of 13 parcels stretching from the southeast corner of the assemblage to the main entrance and across the area to Boenker Lane. These properties are accessible from St. Charles Rock Road, Boenker Lane, and internal driveways. These properties cover 70.82 acres and lie entirely within the Superfund site. Some of these parcels include part of the southernmost landfill cells which, as described in Section 3 of the Findings of Fact, are undergoing a heat-producing sub-surface reaction. (Ex. A at 34) These parcels are the subjects of Appeal Nos. 19-14576, 19-14577, 19-14578, 19-14579, 19-14580, 19-14581, 19-14582, 19-14583, 19-14584, 19-14585, 19-14586, 19-14587, and 19-14590.
- Assessment and Valuation. The BOE determined the following values as of January 1, 2019:
Appeal No. Parcel Classification BOE Value
- Complainant’s Evidence. Complainant submitted Exhibit A and the written direct testimony (WDT) of Missouri licensed appraiser Thomas McReynolds. Exhibit A is McReynolds’ appraisal report. Respondent did not object to Complainant’s evidence.
McReynolds has been a commercial real estate appraiser since 1976. (Ex. A at 48; WDT at 5). From 1976 to 2001, McReynolds was an appraiser with McReynolds Appraisal Company, Inc. Since 2001, McReynolds has been a principal at the appraisal firm of McReynolds Von Trapp, P.C. McReynolds is an MAI Designated Member of the Appraisal Institute and has been the chair or a member of multiple Appraisal Institute committees and boards. McReynolds has testified as an expert witness before the State Tax Commission of Missouri and several Missouri circuit courts, federal bankruptcy courts, and federal district courts. (Ex. A at 48; WDT at 12)
The subject properties are part of a 320.41 acre assemblage located on and around the closed West Lake landfill. (Ex. A at 14, 30) Five of the landfill cells were sanitary landfills and the sixth was a demolition debris landfill. McReynolds asserts there is a “virtual prohibition of re-use” of closed sanitary landfills due to restrictions on construction, while the restrictions on debris landfills are less stringent. (Ex. A at 15) One of the subject properties is situated primarily on the closed demolition debris landfill cell. (Ex. A at 33)
The closed landfills are subject to state-mandated environmental monitoring and remediation requirements requiring the capture and disposal of the methane gas and liquid leachates emitted by the closed landfill. The monitoring period lasts at least 30 years. (Ex. A at 15) To meet these obligations, the owners have invested approximately $200 million for odor control equipment and environmental monitoring and remediation infrastructure. (Ex. A at 16) The Missouri Department of Natural Resources (DNR) has not yet approved a post-closure monitoring program for the closed landfills. (Ex. A at 15)
In 1990, the closed landfill was placed on the National Priorities List for remediation through the EPA-administered Superfund program. The boundaries of the Superfund site are depicted on a map on page 18 of Exhibit A, and reproduced in Addendum B to this decision and order. The boundary of the overall West Lake assemblage is outlined in red. The Superfund site corresponds with this boundary, except on the south side, where the Superfund site boundary is shown by a blue and yellow dashed line.
Following designation of the Superfund site, radiological contamination was discovered in two areas of the landfill. Further testing revealed the contamination had spread to two properties on the northwest corner of the landfill complex. (Ex. A at 17) In 2008, the EPA issued a Record of Decision (ROD) identifying the originally contaminated areas as Operating Unit 1 and Operating Unit 2. Adjacent areas are known as the Buffer Zone and Lot 2A2. The ROD remediation plan provided for encapsulating the contaminants in place and monitoring the site in perpetuity. (Ex. A at 19)
In December 2010, a heat-producing “sub-surface reaction” was discovered in the southernmost landfill cell. (Ex. A at 15) The reaction causes waste to decompose at an accelerated rate, resulting in surface subsidence. The owners have installed approximately 200 gas extraction and interceptor wells, more than a dozen temperature monitoring probes, and alternative technologies to extract heat and manage the subsurface reaction. To maintain the surface elevation and ensure drainage, the owners use soil from the southeast part of the assemblage as fill. (Ex. A at 15) Since discovery of the subsurface reaction, the owners have spent approximately $250 million on environmental monitoring and remediation equipment and processes. (Ex. A at 16)
In 2018, the EPA issued an amended ROD. Rather than encapsulating the contaminants on site, the amended ROD requires excavation and removal of the radiologically contaminated material. The proposed excavation depth ranges from 8 to 20 feet, with an average of 12 feet. The excavated contaminants will be shipped off site, and the excavated areas will be re-filled and capped by a landfill cover meeting federal statutory requirements. (Ex. A at 20) As of January 1, 2020, the EPA and potentially responsible parties were engaged in ongoing feasibility studies to finalize remediation efforts. These studies are expected to be completed in 2022. Once a remedial plan is finalized, the remediation work is expected to take several years, with a preliminary cost estimate of $206,000,000. (Ex. A at 20)
McReynolds concluded the properties had no value for two reasons. First, the “state and federal regulatory prohibition of redevelopment of sanitary landfills means that none of the properties can be put to any appreciable economic use.” “Second, the financial liabilities associated with the ongoing remediation work and potential legal liabilities that accompany those requirements produce large negative cash flows for the owners.” (WDT at 34) Collectively, the development restrictions and environmental remediation liabilities leave the subject properties with no legally permissible, physically possible, or financially feasible use. (Ex. A at 45-47) Therefore, McReynolds concluded the subject properties have no valuable highest and best use either as improved or as vacant. (Ex. A at 44, 47)
- Respondent’s Evidence. Respondent submitted Exhibits 1 and 3. Exhibit 1 consists of the BOE decisions determining the TVM of nine of the subject properties. Exhibit 3 consists of a “Commercial/Industrial Review Document” for each subject property, also referred to as a property record card. (PRC). Complainant did not object to Respondent’s evidence.
The PRCs in Exhibit 3 include data regarding size of the subject properties as well as the number, size, and type of improvements on each property. Each PRC estimates a land value. For properties with improvements, the PRCs utilize the cost approach to estimate the depreciated replacement cost of the improvements. The depreciated replacement cost is added to the estimated land value to estimate value.
Some PRCs also utilize the income approach by modeling market income and expenses to estimate net operating income (NOI). The NOI is then divided by an estimated capitalization rate to estimate the TVM of the subject property. Respondent submitted no testimony or other evidence regarding the accuracy of the PRC data or whether the data demonstrates market demand for any of the subject properties.
- Value. As of January 1, 2019, the TVMs of the subject properties were as follows:
Appeal No. Parcel Classification TVM
CONCLUSIONS OF LAW
- Assessment and Valuation. Commercial real property is assessed at 32% of its TVM as of January 1 of each odd-numbered year. Section 137.115.5(1)(c). “True value in money is the fair market value of the property on the valuation date, and is a function of its highest and best use, which is the use of the property which will produce the greatest return in the reasonably near future.” Snider v. Casino Aztar/Aztar Mo. Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005) (internal quotation omitted). The fair market value is “the price which the property would bring from a willing buyer when offered for sale by a willing seller.” Mo. Baptist Children’s Home v. State Tax Comm’n, 867 S.W.2d 510, 512 (Mo. banc 1993). “True value in money is defined in terms of value in exchange not value in use.” Tibbs v. Poplar Bluff Assocs. I, L.P., 599 S.W.3d 1, 7 (Mo. App. S.D. 2020) (internal quotation omitted). “Determining the true value in money is an issue of fact for the STC.” Cohen v. Bushmeyer, 251 S.W.3d 345, 348 (Mo. App. E.D. 2008).
“For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches.” Snider, 156 S.W.3d at 346. The three generally accepted approaches are the cost approach, the income approach, and the comparable sales approach. Id. at 346-48; see also St. Louis Cty. v. Sec. Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977). The STC has wide discretion in selecting the appropriate valuation method but “cannot base its decision on opinion evidence that fails to consider information that should have been considered under a particular valuation approach.” Snider, 156 S.W.3d at 348. An assessment will not be upheld “where it is clear that the assessment does not take into account all factors relevant to a determination of true value in money.” Stephen & Stephen Properties, Inc., v State Tax Comm’n, 499 S.W.2d 798, 802 (Mo. 1973).
- Evidence. The hearing officer is the finder of fact and determines the credibility and weight of the evidence. Kelly v. Mo. Dep’t of Soc. Servs., Family Support Div., 456 S.W.3d 107, 111 (Mo. App. W.D. 2015). “Although technical rules of evidence are not controlling in administrative hearings, fundamental rules of evidence are applicable.” Mo. Church of Scientology v. State Tax Comm’n, 560 S.W.2d 837, 839 (Mo. banc 1977).
- Complainant’s Burden of Proof. The taxpayer bears the burden of proof and must show by a preponderance of the evidence that the property was misclassified or overvalued. Westwood P’ship v. Gogarty, 103 S.W.3d 152, 161 (Mo. App. E.D. 2003). The BOE’s valuation is presumptively correct. Tibbs, 599 S.W.3d at 7. The “taxpayer may rebut this presumption by presenting substantial and persuasive evidence that the valuation is erroneous.” Id. (internal quotation omitted). The taxpayer also must prove “the value that should have been placed on the property.” Id. “Substantial evidence is that evidence which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case on the fact issues.” Savage v. State Tax Comm’n, 722 S.W.2d 72, 77 (Mo. banc 1986) (internal quotation omitted). Evidence is persuasive when it has “sufficient weight and probative value to convince the trier of fact.” Daly v. P.D. George Co., 77 S.W.3d 645, 651 (Mo. App. E.D. 2002); see also White v. Dir. of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (noting the burden of persuasion is the “party’s duty to convince the fact-finder to view the facts in a way that favors that party”).
- Complainant Produced Substantial and Persuasive Evidence of Overvaluation for 15 of the 17 Subject Properties.
Complainant produced substantial and persuasive evidence showing the 15 subject properties located within the Superfund site boundary lacked market value as of January 1, 2019. Complainant’s evidence shows these properties were used for ongoing environmental monitoring and remediation efforts mandated by both state and federal law. The environmental monitoring and remediation is of indefinite duration, and preliminary estimates place future remediation costs at $206,000,000. As indicated by the 2018 amended ROD, the actual scope and duration of the remediation process remains uncertain and is subject to ongoing remedial investigation and feasibility studies. Further, Complainant’s unrebutted evidence shows that redevelopment of those parcels located on the former sanitary landfills is no feasible due continuing surface subsidence. This evidence is substantial and persuasively establishes by a preponderance of the evidence that the 15 parcels located within the Superfund site “have no financially feasible use.” (Ex. B at 48)
The conclusion that these 15 parcels lack market value is buttressed by the fact a potential purchaser faces potential CERCLA liability. “CERCLA imposes strict liability for environmental contamination upon four broad classes of [potentially responsible parties].” Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 608 (2009). The potentially responsible parties include the “owner or operator of any … facility.” 42 U.S.C. § 9607(a) (Emphasis added). Because any “owner” may be held liable, “even parties not responsible for contamination may fall within the broad definitions” of a potentially responsible party. United States v. Atl. Rsch. Corp., 551 U.S. 128, 136 (2007).
The liability exposure is amplified by the fact CERCLA authorizes joint and several liability enabling the EPA to hold any responsible party liable for the entire cost of the response action. Burlington, 566 U.S. at 614-15; see also Emhart Indus., Inc. v. United States Dep’t of the Air Force, 988 F.3d 511, 517 (1st Cir. 2021) (citing Burlington and holding CERCLA authorizes joint and several liability for the entire response cost). Here, the future remediation costs are estimated at $206,000,000. Practically, this means that in addition to buying contaminated land with no reasonably foreseeable and financially feasible use, a prospective buyer is essentially purchasing potential joint and several liability for a $206,000,000 remediation process of indefinite duration. This liability exposure, while not independently sufficient to demonstrate a complete lack of market value, is nonetheless a relevant factor. See Stephen & Stephen Properties, 499 S.W.2d at 802 (holding an assessment must account for all factors relevant to value). Considered in conjunction with the severe development restrictions, the ongoing remediation costs and potential liability persuasively supports the conclusion that the 15 parcels with substantial Superfund exposure had “no financially feasible use” and, therefore, no market value as of January 1, 2020. (Ex. A at 48)
Respondent’s evidence – consisting solely of the BOE decisions and the PRCs – does not undermine the persuasiveness of Complainant’s evidence. McReynolds’ appraisal report and WDT rebutted the BOE values shown in Exhibit 1. Once rebutted, a presumption “disappears from the case and the fact-finder receives the issue free from any presumption.” Deck v. Teasley, 322 S.W.3d 536, 539–40 (Mo. banc 2010).
Likewise, Respondent’s PRCs do not undermine Complainant’s evidence. There is no evidence establishing the reliability of the land values and depreciated replacement costs. Nor was there any persuasive consideration of the known and potential environmental remediation liabilities associated with any parcel. The lack of evidence regarding the reliability of the estimated land value is particularly problematic when, as in this case, the subject property is unique from almost every other commercial parcel in St. Louis County. See Appraisal Institute, The Appraisal of Real Estate 568 (14th ed. 2013) (noting that a lack of data “can weaken the credibility of the estimate of land value that is an essential part of the cost approach”).
Further, even if Respondent’s cost assumptions are accurate, there is no evidence the improvement replacement costs reflect market demand for a closed landfill on a Superfund site. This omission is crucial because the TVM of the subject property is “the price which the property would bring from a willing buyer when offered for sale by a willing seller.” Mo. Baptist Children’s Home, 867 S.W.2d at 512. The cost approach incorporates this market-based concept through “principle of substitution” which “affirms that a knowledgeable buyer would pay no more for a property than the cost to acquire a similar site and construct improvements of equivalent desirability and utility without undue delay.” Appraisal Institute, The Appraisal of Real Estate 563-62 (14th ed. 2013). It follows that a property “with no utility would not be recreated, and the value of the property would be low.” Id. at 568; see also Stephen & Stephen Properties, 499 S.W.2d at 803 (noting “It is well known that a building, especially one constructed for a special purpose, is rarely worth on the market what it has cost to erect it”). Respondent’s cost estimates do not demonstrate any market demand for closed landfill properties subject to severe development restrictions and substantial environmental remediation costs of indefinite duration.
The income, expense, and capitalization rates utilized in the PRCs are similarly unpersuasive. For instance, Respondent’s PRC for the subject property in Appeal No. 19-14591 estimates the improvements on the subject property would generate $379,200 of net operating income per year at direct overall capitalization rate of 11.32%, yielding an indicated value of $3,350,297. (Ex. 3 at 80) This property consists of 28.65 acres located entirely within the Superfund site and on top of most of the closed demolition landfill and part of an adjacent sanitary landfill. (Ex. A at 33-35) There is no evidence showing the reliability of this or any other income and capitalization rate assumption in Respondent’s PRCs as applied to the unique circumstances of the subject properties. Respondent’s PRCs do not rebut Complainant’s substantial and persuasive evidence showing that 15 of the 17 subject properties lacked market value as of January 1, 2019. McReynolds’ appraisal report persuasively establishes there was no reasonably foreseeable, financially feasible use for 15 of the 17 subject properties as of January 1, 2019.
However, McReynolds’ analysis does not persuasively establish that the two properties located southwest of Boenker Lane lacked market value as of January 1, 2019. Neither property is located in the Superfund site. The majority of this acreage is used as a stormwater detention basin, but some of it is not. The land not used for stormwater detention is accessible from Boenker Lane. The stormwater detention basin decreases the useable area and, therefore. may decrease the value of these parcels.
Nonetheless, Complainant did not produce substantial and persuasive evidence supporting its assertion these two parcels had no market value as of January 1, 2019. Complainant also did not produce substantial and persuasive evidence of any other value less than that assigned by the BOE. Therefore, to the extent Complainant’s evidence indicates some diminution in the value of these two parcels, Complainant has not shown “the value that should have been placed on the property.” Tibbs, 599 S.W.3d at 7.
CONCLUSION AND ORDER
Complainant did not produce substantial and persuasive evidence showing the value of the subject properties in Appeal Nos. 19-14588 and 19-14589 was $0 as of January 1, 2019. The BOE decisions determining the TVM of these properties are affirmed. For tax years 2019 and 2020, the TVMs of the subject properties in Appeal Nos. 19-14588 and 19-14589 were $550,800 and $1,362,000, respectively.
Complainant produced substantial and persuasive evidence showing the value of the subject properties in the remaining 15 appeals was $0 as of January 1, 2019. The BOE decisions for these properties are set aside. The TVM of these properties for tax years 2019 and 2020 was $0.
Application for Review
A party may file with the STC an application for review of this decision within 30 days of the mailing date set forth in the certificate of service for this decision. The application “shall contain specific detailed grounds upon which it is claimed the decision is erroneous.” Section 138.432. The application must be in writing, and may be mailed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, or emailed to Legal@stc.mo.gov. A copy of the application must be sent to each person listed below in the certificate of service.
Failure to state specific facts or law upon which the application for review is based will result in summary denial. Section 138.432.
The Collector of St. Louis County, and the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an application for review, unless the disputed taxes have been disbursed pursuant to a court order under the provisions of section 139.031.
SO ORDERED September 10, 2021.
Eric S. Peterson
Senior Hearing Officer
State Tax Commission
Certificate of Service
I hereby certify that a copy of the foregoing has been electronically mailed and/or sent by U.S. Mail on September 10, 2021, to: Complainant(s) and/or Counsel for Complainant(s), the County Assessor and/or Counsel for Respondent and County Collector.
Contact Information for State Tax Commission:
Missouri State Tax Commission
421 East Dunklin Street
P.O. Box 146
Jefferson City, MO 65102-0146
 Complainant timely filed a complaint for review of the assessment in each appeal. The State Tax Commission (STC) has authority to hear and decide Complainant’s appeals. Mo. Const. art. X, sec. 14; Section 138.430.1, RSMo 2000. All statutory citations are to RSMo 2000, as amended.
 The locations of the subject properties within the overall assemblage are depicted on a map on page 35 of Exhibit A. The map is attached to this decision and order.
 All citations to McReynolds’ WDT refer to the numbered questions and answers.
 The locations of the subject properties within the overall assemblage are depicted on a map found on page 35 of Exhibit A and is reproduced in Addendum A to this decision and order.
 A “potentially responsible party” or “PRP” is “any person who may be liable pursuant to section 107(a) of CERCLA, 42 U.S.C. 9607(a), for response costs incurred” by the federal government. 40 CFR section 304.12(m).
 The EPA selects a response action based on both a remedial investigation and a feasibility study. See 40 C.F.R. § 300.430(a).
 McReynolds’ appraisal report does not include separate documentation of the data underlying his analysis and conclusion. An expert appraisal report can be substantial and persuasive evidence of value even if “the precise numerical derivation of the figure set forth in the expert’s testimony was not placed in evidence[.]” Equitable Life Assur. Soc. of U.S./Marriott Hotels, Inc. v. State Tax Comm’n, 852 S.W.2d 376, 382 (Mo. App. E.D. 1993). It is sufficient that “the narrative explanation” of the report is “sufficiently explained and justified to enable the Commission to evaluate the weight that should properly be accorded to the data supplied.” Id. McReynolds’ appraisal report and WDT sufficiently explain the basis of his opinion and constitute substantial and persuasive evidence rebutting the BOE presumption and showing that 15 of the 17 subject properties had no market value as of January 1, 2019.
 Real property is reassessed as of January 1 of each odd-numbered year. Section 137.115.1. Absent new construction or improvements to a parcel of real property, the assessed value as of January 1 of the odd year remains the assessed value as of January 1 of the following even year. Id.