STATE TAX COMMISSION OF MISSOURI
| CSR FAMILY TRUST, | ) | |
| ) | ||
| Complainants, | ) | |
| ) | ||
| v. | ) | Appeal No. 17-10183 |
| ) | Parcel/locator No. 25T210067 | |
| JAKE ZIMMERMAN, ASSESSOR | ) | |
| ST. LOUIS COUNTY, MISSOURI, | ) | |
| ) | ||
| Respondent. | ) |
DECISION AND ORDER
HOLDING
The assessment made by the Board of Equalization of St. Louis County (BOE) is SET ASIDE. Complainant CSR Family Trust (Complainant) presented substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE.
Complainant appeared by Counsel Randall C. Cahill.
Respondent Jake Zimmerman, Assessor, St. Louis County, Missouri, (Respondent) appeared by Counsel Steven Robson.
Case heard and decided by Senior Hearing Officer Amy S. Westermann (Hearing Officer).
ISSUE
Complainants appealed on the ground of overvaluation.[1] Respondent initially set the true value in money (TVM) of the subject property, as residential property, at $518,000. The BOE set the TVM of the subject property, as residential property, at $518,000, thereby sustaining Respondent’s valuation. The value as of January 1 of the odd numbered year remains the value as of January 1 of the following even numbered year unless there is new construction or improvement to the property. Section 137.115.1 RSMo The State Tax Commission (STC) takes this appeal to determine the true value in money for the subject property as the property existed on January 1, 2017, under the economic conditions as they existed on January 1, 2017.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
- Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the STC.
- Evidentiary Hearing. An Evidentiary Hearing was held on April 26, 2018, at the St. Louis County Government Administration Building, 41 S. Central Avenue, Clayton, Missouri.
- Identification of Subject Property. The subject property is identified by parcel/locator number 25T210067. It is further identified as 1447 Charic Drive, Wildwood, St. Louis County, Missouri. (Complaint)
- Description of Subject Property. The subject property consists of 11.88 acres of vacant land with a two- to three-acre sewage lagoon and sewage pumping station. (WDT of Chaganti) The lagoon collects raw sewage from two residential care facilities located on adjoining parcels of land. The pumping station is equipped with pumps to move the sewage to Metropolitan Sewer District pipelines. (WDT of Chaganti)
- Assessment. Respondent initially valued the subject property at $518,000, as residential, as of January 1, 2017.
- Board of Equalization. The BOE valued the subject property at $518,000, as residential, as of January 1, 2017, thereby sustaining Respondent’s valuation.
- Complainant’s Evidence. Complainant opined that the subject property’s TVM as of January 1, 2017, was approximately $10,000, which was its previous assessed value prior to January 1, 2017. To support its opinion of value, Complainant offered the following evidence:
| Exhibit | Description | Ruling |
| WDT of Chaganti | Written Direct Testimony of Naren Chaganti | Admitted |
| Exhibit A | Easement Agreement | Admitted |
| Exhibit B | Letter from Missouri Department of Natural Resources | Admitted |
| Exhibit C | Photo of raw sewage | Admitted |
Respondent did not object to Complainant’s exhibits, all of which were received into the record.
In both his WDT and his live testimony before the Hearing Officer, Mr. Chaganti testified that he is a practicing attorney licensed in California; holds a bachelor’s degree and a master’s degree in electrical engineering; holds a master’s degree in computer science engineering; and holds a juris doctor degree. (WDT of Chaganti) Mr. Chaganti also testified that he has taken courses in property valuation methods and has represented clients in property valuation disputes before judicial and quasi-judicial bodies. (WDT of Chaganti) Mr. Chaganti testified that he is the trustee of Complainant, that he is personally acquainted with the property, and that he has inspected the condition of the property on at least three occasions. (WDT of Chaganti)
In his WDT, Mr. Chaganti testified that Complainant acquired the subject property through a “relationship with Whispering Oaks Residential Care Facility LLC and Whispering Oaks RCF Management Co. Inc., which were two entities that [Mr. Chaganti] incorporated to own and operate a residential care facility,” i.e., a nursing home. (WDT of Chaganti) Mr. Chaganti testified that the subject property had been purchased with another parcel of land for a total of $1,300,000 in August 2008. The second parcel, 1450 Ridge Road (Lot 1), is 10.93 acres of land improved by a two-story building with approximately 16,000 square feet in which a nursing home business was operated until approximately January 2010. (WDT of Chaganti) Mr. Chaganti testified that, at the time of the purchase, he valued the subject property to be worth nothing and as a mere appendage to Lot 1. Mr. Chaganti testified that he used the income approach and the sales comparison approach to arrive at an opinion of value for the subject property at the time of purchase in 2008 but that the cost approach would have been inapplicable. (WDT of Chaganti) In valuing the subject property as of January 1, 2018, Mr. Chaganti compared three neighboring properties:
| Comparable No. 1 | 1508 Ridge Road
Parcel No. 26T530047 |
5 acres improved by single-family home with no sewage lagoon | $187,000 |
| Comparable No. 2 | 1444 Charic Road
Parcel No. 25T120120 |
8.8 acres improved by single-family home with no sewage lagoon | $308,200 |
| Comparable No. 3 | 1522 Ridge Road
Parcel No. 26T530036 |
10 acres improved by “modest improvements” and no sewage lagoon | $191,000 |
Mr. Chaganti testified that the subject property had no intrinsic value because of the sewage lagoon. (WDT of Chaganti) Mr. Chaganti further testified that the subject property is not saleable due to a burdensome easement agreement; a neighbor releasing raw sewage onto the subject property; the high cost of remediation of the sewage lagoon; and potential criminal prosecution by the federal Environmental Protection Agency for violations of the Clean Water Act. (Testimony of Chaganti) Mr. Chaganti testified that the highest and best use of the subject property is as a sewage lagoon. (WDT of Chaganti)
Mr. Chaganti testified that the subject property was used as a sewage pumping station for the nursing home on Lot 1 and residential care facility on a lot (Lot 2) adjoining the subject property and Lot 1. (WDT of Chaganti; Exhibit A) Sewage from Lot 1 and Lot 2 had been collected in the lagoon on the subject property since the 1960s. The lots are all the subject of an easement agreement which grants, in part, the owners of Lot 1 and Lot 2 “a perpetual easement in and through their respective [lots] for the placement and maintenance of a sanitary sewer line and treatment facility” on Lot 3. (Exhibit A) The easement agreement further grants each party “the right to use such sanitary sewer line and treatment facility to the extent necessary to for (sic) the full use and enjoyment of their respective [lots] except as may be otherwise restricted by law.” The easement agreement requires the owners of Lot 1 and Lot 2 to cooperate in the construction, maintenance, operation, repair, improvement of the sewer system and to regulate its use. (Exhibit A) The easement agreement also provides a cost-sharing plan for the sewer line and treatment facility on Lot 3. (Exhibit A) Mr. Chaganti testified that Complainant filed a lawsuit against the owner of Lot 2 after the purchase of the subject property based on Lot 2’s improper use of the sewage system, which clogged and damaged the system. (Testimony of Chaganti)
In January 2010, a water pipe at the nursing home on Lot 1 froze, cutting off water for the bathrooms of the nursing home there. (WDT of Chaganti) The nursing home on Lot 1 was evacuated by the Missouri Department of Health. St. Louis County issued a condemnation notice, and the Missouri Attorney General initiated a lawsuit for violations of the Safe Drinking Water Act. As a result, the nursing home on Lot 1 was closed and has remain closed. (WDT of Chaganti) Mr. Chaganti testified that the Missouri Department of Natural Resources issued warnings to Complainant to close the sewage lagoon at Complainant’s expense. (WDT of Chaganti; Exhibit B) Mr. Chaganti testified that, in 2010, a local engineer estimated the remediation of the sewage lagoon between $400,000 and $600,000. Mr. Chaganti testified that the facility on Lot 2 was continuing to release raw sewage onto the subject property close in time to the Evidentiary Hearing. (WDT of Chaganti; Exhibit C)
In 2014, Respondent “agreed to a market valuation of $10,000” for the subject property. (WDT of Chaganti) According to the St. Louis County Real Estate Records Database, Respondent valued the subject property at $10,000 from 2011 through 2016. Mr. Chaganti testified that the increase in valuation from $10,000 to $518,000 as of January 1, 2017, was extremely burdensome. (Testimony of Chaganti)
On cross examination, Mr. Chaganti testified that the sewage lagoon was part and parcel of the purchase of the subject property and Lot 1 and that one could not operate Lot 1 as a nursing home without the subject property. Mr. Chaganti testified that Complainant had no current intent to re-open the nursing home on Lot 1 but might possibly build an independent living facility on Lot 3.
- Respondent’s Evidence. Respondent advocated that the BOE’s valuation of the subject property as of January 1, 2017, $518,000, was correct. Respondent offered the following evidence:
| Exhibit | Description | Ruling |
| Exhibit 1 | BOE Findings and Notice of Decision dated September 20, 2017, valuing the subject property at $518,100 | Admitted |
Complainant did not object to Respondent’s exhibit, which was received into the record.
- Presumption of Correct Assessment Not Rebutted/Rebutted – TVM Established. Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the BOE. The evidence established that the TVM of the subject property as of January 1, 2017, was $10,000.
CONCLUSIONS OF LAW AND DECISION
Jurisdiction
The STC has jurisdiction to hear this appeal and to correct any assessment that is shown to be unlawful, unfair, arbitrary or capricious, including the application of any abatement. The Hearing Officer shall issue a decision and order affirming, modifying, or reversing the determination of the BOE, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.
Basis of Assessment
The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass. Article X, Sections 4(a) and 4(b), Mo. Const. of 1945. The constitutional mandate is to find the true value in money for the property under appeal. By statute, real property and tangible personal property are assessed at set percentages of true value in money: residential property at 19%; commercial property at 32%; and agricultural property at 12%. Section 137.115.5 RSMo (2000) as amended.
Evidentiary Hearing
The Hearing Officer, after affording the parties reasonable opportunity for fair hearing, shall issue a decision and order affirming, modifying, or reversing the determination of the BOE, correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Section 138.431.5 RSMo; 12 CSR 30-3.080 (2).
Investigation by Hearing Officer
In order to investigate appeals filed with the STC, the Hearing Officer may inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification, or assessment of the property. Section 138.430.2 RSMo (2000) as amended. The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon his inquiry and any evidence presented by the parties or based solely upon evidence presented by the parties. Id.
Board Presumption and Computer-Assisted Presumption
There exists a presumption of correct assessment by the BOE – the BOE presumption. There also exists by statutory mandate a presumption that the assessor’s original valuation was made by a computer, computer-assisted method or a computer program – the computer-assisted presumption. These two presumptions operate with regard to the parties in different ways.
The BOE presumption operates in every case to require the taxpayer to present substantial and persuasive evidence to rebut it. If Respondent is seeking to prove a value different than that set by the BOE, then Respondent is required to rebut the BOE presumption.
The computer-assisted presumption only comes into play if the BOE lowered the value of the assessor and Respondent is seeking to sustain the original assessment and it has not been shown that the assessor’s valuation was not the result of a computer-assisted method. The BOE valuation is assumed to be an independent valuation.
In the present appeal, the BOE sustained the initial valuation of Respondent, and Complainant is now seeking to lower the BOE’s assessment; therefore, the BOE presumption applies to Complainant.
Complainant’s Burden of Proof
To obtain a reduction in assessed value based upon an alleged overvaluation, the Complainant must prove the true value in money of the subject property on the subject tax day. Hermel, Inc., v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978). True value in money is defined as the price that the subject property would bring when offered for sale by one willing but not obligated to sell it and bought by one willing or desirous to purchase but not compelled to do so. Rinehart v. Bateman, 363 S.W.3d 357, 365 (Mo. App. W.D. 2012); Cohen v. Bushmeyer, 251 S.W.3d 345, 348 (Mo. App. E.D. 2008); Greene County v. Hermel, Inc., 511 S.W.2d 762, 771 (Mo. 1974). True value in money is defined in terms of value in exchange and not in terms of value in use. Stephen & Stephen Properties, Inc. v. State Tax Commission, 499 S.W.2d 798, 801-803 (Mo. 1973). In sum, true value in money is the fair market value of the subject property on the valuation date. Hermel, Inc., 564 S.W.2d at 897.
“’True value’ is never an absolute figure, but is merely an estimate of the fair market value on the valuation date.” Drury Chesterfield, Inc., v. Muehlheausler, 347 S.W.3d 107, 112 (Mo. App. E.D. 2011), citing St. Joe Minerals Corp. v. State Tax Comm’n of Mo., 854 S.W.2d 526, 529 (Mo. App. E.D. 1993). “Fair market value typically is defined as the price which the property would bring when offered for sale by a willing seller who is not obligated to sell, and purchased by a willing buyer who is not compelled to buy.” Drury Chesterfield, Inc., 347 S.W.3d at 112 (quotation omitted).
In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2017. Hermel, supra. There is no presumption that Complainant’s opinion is correct. The taxpayer in an STC appeal still bears the burden of proof because the taxpayer is the moving party seeking affirmative relief. Therefore, the Complainant bears the burden of proving the vital elements of the case, i.e., the assessment was “unlawful, unfair, improper, arbitrary, or capricious.” See, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003); Industrial Development Authority of Kansas City v. State Tax Commission of Missouri, 804 S.W.2d 387, 392 (Mo. App. 1991). A valuation which does not reflect the true market value of the property under appeal is an unlawful, unfair, and improper assessment.
Presumption in Appeal
A presumption exists that the assessed value fixed by the BOE is correct. Rinehart, 363 S.W.3d at 367; Cohen, 251 S.W.3d at 348; Hermel, Inc., 564 S.W.2d at 895. “Substantial and persuasive controverting evidence is required to rebut the presumption, with the burden of proof resting on the taxpayer.” Cohen, 251 S.W.3d at 348. Substantial evidence can be defined as such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Cupples Hesse Corp. v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Persuasive evidence is evidence that has sufficient weight and probative value to convince the trier of fact. Cupples Hesse Corp., 329 S.W.2d at 702. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975). See also, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003).
There is no presumption that the taxpayer’s opinion is correct. Generally, a property owner, while not an expert, is competent to testify to the reasonable market value of his own land. Cohen, 251 S.W.3d at 348-49; Carmel Energy, Inc. v. Fritter, 827 S.W.2d 780, 783 (Mo. App. W.D. 1992). “However, when an owner’s opinion is based on improper elements or foundation, his opinion loses its probative value.” Carmel Energy, Inc., 827 S.W.2d at 783. A taxpayer does not meet his burden if evidence on any essential element of his case leaves the STC “in the nebulous twilight of speculation, conjecture and surmise.” See Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. E.D. 1980).
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule, or method in determining true value in money and is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide. St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).
The Hearing Officer, as the trier of fact, may consider the testimony of an expert witness and give it as much weight and credit as deemed necessary when viewed in connection with all other circumstances. Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. W.D. 1991). The Hearing Officer, as the trier of fact, is not bound by the opinions of experts but may believe all or none of the expert’s testimony or accept it in part or reject it in part. Exchange Bank of Missouri v. Gerlt, 367 S.W.3d 132, 135-36 (Mo. App. W.D. 2012).
In this appeal, Mr. Chaganti testified that he has education, training, and experience in valuing properties.
Methods of Valuation
Proper methods of valuation and assessment of property are delegated to the STC. It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case. See, Nance v. STC, 18 S.W.3d 611, 615 (Mo. App. W.D. 2000); Hermel, Inc., 564 S.W.2d at 897; Xerox Corp. v. STC, 529 S.W.2d 413 (Mo. banc 1975). Missouri courts have approved the comparable sales or market approach, the cost approach, and the income approach as recognized methods of arriving at fair market value. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987); and State ex rel. State Highway Comm’n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. 1974).
“For purposes of levying property taxes, the value of real property is typically determined using one or more of three generally accepted approaches.” Snider v. Casino Aztar/Aztar Missouri Gaming Corp., 156 S.W.3d 341, 346 (Mo. banc 2005), citing St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977). “Each valuation approach is applied with reference to a specific use of the property—its highest and best use.” Snider, 156 S.W.3d at 346-47, citing Aspenhof Corp., 789 S.W.2d at 869. “The method used depends on several variables inherent in the highest and best use of the property in question.” Snider, 156 S.W.3d at 347.
“Each method uses its own unique factors to calculate the property’s true value in money.” Id. “The ‘comparable sales approach’ uses prices paid for similar properties in arms-length transactions and adjusts those prices to account for differences between the properties. Id. at 348. “Comparable sales consist of evidence of sales reasonably related in time and distance and involve land comparable in character.” Id. (quotation omitted). “This approach is most appropriate when there is an active market for the type of property at issue such that sufficient data [is] available to make a comparative analysis.” Id.
Implicit in this definition are the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:
- Buyer and seller are typically motivated.
- Both parties are well informed and well advised, and both acting in what they consider their own best interests.
- A reasonable time is allowed for exposure in the open market.
- Payment is made in cash or its equivalent.
- Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.
- The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.
Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; see also, Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary.
Highest and Best Use
TVM 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. Aspenhof Corp. v. State Tax Commission, 789 S.W. 2d 867, 869 (Mo. App. 1990). It is true that property can only be valued according to a use to which the property is readily available. But this does not mean that, in order for a specific use to be the highest and best use for calculating the property’s TVM, that particular use must be available to anyone deciding to purchase the property. A determination of the TVM cannot reject the property’s highest and best use and value the property at a lesser economic use of the property. Snider, 156 S.W. 3d at 348-349.
Discussion
Complainants’ evidence was substantial and persuasive to rebut the presumption of correct assessment by the BOE. Substantial evidence is that which is relevant, adequate, and reasonably supports a conclusion. Cupples Hesse Corp., 329 S.W.2d at 702. Persuasive evidence is that which causes the trier of fact to believe, more likely than not, the conclusion advocated is the correct conclusion. Id.
Although Complainant did not present evidence in the form of one of the three approaches to valuing property, Complainant argued that the subject property’s 2017 assessment should have remained the same as the 2015 assessment given the nature and circumstances of the subject property. Complainant’s argument is well taken. The evidence established that the highest and best use of the subject property was as a sewage lagoon as of January 1, 2017. The subject property had been used as a sewage lagoon for decades. The subject property’s purpose had been to provide sewage collection and conveyance for Lot 1 and Lot 2. Although the sewage lagoon was no longer officially “in use” as of January 1, 2017, the evidence established that the owner of Lot 2 had continued to release raw sewage onto the subject property. The evidence further established that Complainant had no intention or plan to redevelop the subject property into something other than a sewage lagoon as of the relevant tax date because the subject property requires extensive and expensive remediation and is under the scrutiny of the Missouri Department of Natural Resources. Consequently, given the evidence, it is reasonable to conclude that the BOE’s decision to increase the TVM of the subject property from $10,000 in 2015 to over half a million dollars in 2017 was improper.
ORDER
The TVM for the subject property as determined by the BOE is SET ASIDE. The assessed value for the subject property for tax year 2017 is set at $1,900 residential ($10,000 TVM).
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 facts or law as grounds upon which it is claimed the decision is erroneous. Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, MO 65102-0146, and a copy of said application must be sent to each person at the address 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, RSMo
Disputed Taxes
The Collector of St. Louis County, as well as 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 said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.
Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.
SO ORDERED July 31, 2018.
STATE TAX COMMISSION OF MISSOURI
Amy S. Westermann
Senior Hearing Officer
Certificate of Service
I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 31st day of July, 2018, to: Complainants(s) counsel and/or Complainant, the County Assessor and/or Counsel for Respondent and County Collector.
Jacklyn Wood
Legal Coordinator
[1] On the Complaint for Review form Complainant filed with the STC, Complainant alleged both overvaluation and discrimination as grounds for the appeal. However, immediately prior the Evidentiary Hearing, Complainant informed the Hearing Officer that no evidence of discrimination would be presented. Accordingly, the claim of discrimination is deemed abandoned.