Dale & Carol Boggs v. Zimmerman (SLCO)

August 28th, 2012

State Tax Commission of Missouri

 

DALE AND CAROL BOGGS,)

)

Complainants,)

)

v.                                                                            ) Appeal(s) No.09-10922 & 11-10677

)

JAKE ZIMMERMAN, ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

 

HOLDING

Appeal 09-10922

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED, as to appraised value, and SET ASIDE, as to classification.Complainants presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.The true value in money for the subject property for tax years 2009 and 2010 is set at $405,400, assessed value of $117,780: $17,460 – residential and $100,320 – commercial.

Appeal 11-10677

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.Complainants failed to presented substantial and persuasive evidence to rebut the presumption of correct assessment by the Board of Equalization.The true value in money for the subject property for tax years 2011 and 2012 is set at $531,800, assessed value of $145,480: $36,100 – residential and $109,380 – commercial.

Complainants appeared by Counsel, Apollo Carey, Sandberg, Phoenix & Von Gontard, P.C., St. Louis, Missouri.

Respondent appeared Associate County Counselor, Edward W. Corrigan.

Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

Complainant appeals, on the ground of misclassification, the decisions of the St. Louis County Board of Equalization, which reduced the valuation of the subject property for the 2009-2010 assessment cycle and sustained the valuation of the subject property for the 2011-2012 assessment cycle.The Commission takes this appeal to determine the correct classifications for the subject property on January 1, 2009, and January 1, 2011.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

FINDINGS OF FACT

1.Jurisdiction.Jurisdiction over this appeal is proper.Complainants timely appealed to the State Tax Commission from the decisions of the St. Louis County Board of Equalization.

2.Evidentiary Hearing and Briefing Schedule.An evidentiary hearing was conducted on April 17, 2012, at the St. Louis County Government center, Clayton, Missouri.At hearing, Counsel for Complainants informed the Hearing Officer he wished to brief the case.[1]Transcript was filed with the Commission on 6/5/12.Order Setting Briefing Schedule was issued 6/5/12.Complainant’s Brief was due 7/6/12, Respondent’s Response was due 8/6/12, and Complainant’s Reply was due 8/27/12.Complainant did not file a brief.


3.Subject Property.The subject property is identified by locator number 13Q620042.It is located at 1 Golfport Drive, Maryland Heights, Missouri.[2]The property consists of a 26.72 acre tract of land.[3]The property is improved by a parking lot, retail building, a golf learning center, practice range, Cutter Creek – Short Course (9 hole course), batting cages and a mini putt-putt course.[4]

4.Assessment.For 2009, the Assessor appraised the property at $743,000, an assessed commercial value of $237,760.The Board of Equalization reduced the appraised value to $405,400, an assessed commercial value of $129,730.[5]For 2011, the Assessor appraised the property at $531,800 ($190,000 – Residential; $341,800 – Commercial), a residential assessed value of $36,100 and a commercial assessed value of $109,380.[6]

5.Short Course Improvements.On the Property Record Cards for both 2009[7] and 2011[8] under the item OTHER BUILDINGS AND YARD IMPROVEMENTS, the following items were listed:

TYPE

DESCRIPTION

YEAR

SIZE

GRD

QN

C

F

MA%

ADJFACT

VALUE

GC4

GOLF CR AV

2007

1

C

9

3

3

15

1.0000

162000

The Hearing Officer ascertained from Counsel for Respondent that these entries represented the improvements (9-golf holes) on the Short Course.[9]

6.Valuation Not Challenged.Complainants tendered no evidence on the issue of the true value in money of the subject property for either assessment cycle.Valuation is not at issue in the appeals.The true value in money for the subject property for the 2009 and 2010 tax years is: $405,400.The true value in money for the subject property for the 2011 and 2012 tax years is: $531,800.

7.Complainant’s Evidence.Complainants filed and exchanged the following exhibits:

EXHIBIT

DESCRIPTION

A – AG[10]

Photographs of the subject property

AH

Yardage Card Creve Coeur Golf Driving Range

AI

Score Card Golfport of Maryland Heights

AJ

Survey of Subject Property

AN

Written Direct Testimony of Dale Boggs

AO

Written Direct Testimony of Sam Gilliland

AP

Written Direct Testimony of Jill Bertram

AQ

Written Direct Testimony of Rhein Dabler

Objections to the exhibits were ruled on by Order dated 7/19/11.Said Order is incorporated by reference into this Decision as if set out in its entirety.The Exhibits were received into the record.[11]

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010. There was no evidence of new construction and improvement from January 1, 2011, to

January 1, 2012, therefore the assessed value for 2011 remains the assessed value for 2012.[12]

Appeal 09-10922

Complainant’s evidence was substantial and persuasive to rebut the presumption of correct classification by the Board and establish the correct classifications for the mixed use of the subject property for January 1, 2009.

Appeal 11-10677

Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct classification by the Board for the mixed use of the subject property for January 1, 2011.

8.Respondent’s Evidence.Respondent filed and exchanged the following exhibits:

EXHIBIT

DESCRIPTION

1

2009 Property Record Card – Subject

2

St. Louis County Property Viewer – Aerial Photograph – Subject

3

Pictometry – Aerial Photograph – Subject

4

Photograph of Subject Entry Sign

5

Website documents from www.golfport-stl.com

13

Written Direct Testimony of John Kiene

14

2011 Property Record Card – Subject[13]

Objections to the exhibits were ruled on by Order dated 7/19/11.Exhibits 6 through 12 were excluded by said Order.Questions and Answers 35 through 76 of Exhibit 13 were stricken by said Order.Said Order is incorporated by reference into this Decision as if set out in its entirety.Exhibits 1 -5 and 13 and 14 were received into the record.[14]

9.Divisions of Areas of Subject Property.For purposes of classifying the subject property, three areas have been designated as follows:

a.Short Course Area – 3 acres:The Short Course area is a three acre tract which lies in the Northwest portion of the property.On this tract is a nine hole golf course. It has six regulation-sized greens[15] with holes, bunkers fairways, tee boxes, grass areas on which golf carts are driven and golf course maintenance shed.[16] It is shown as a yellow shaded area on Exhibit 3.[17]

b.Commercial Area – 2 acres:The Commercial Area is in the Northeast corner of the property.This tract is improved with the parking lot, the batting cages, the retail building and the mini putt-putt course.[18]It is outlined and shown as Commercial Area – 2.00 Acres on Exhibit AJ.

c.Putting, Chipping & Driving Range (Practice) Area – 21.72 Acres:The Practice area contains putting and chipping areas, teeing area for the driving range and the large open area which is the driving range.[19]

10.Classification of Subject Areas.The Short Course Area is classified as residential.The Commercial Area and Practice Area are classified as commercial.See, Classification of Golf Courses, infra.

11.Assessment of Subject Areas – 2009 – 2010.The Short Course Area is assessed at $17,460 for 2009 and 2010.The Commercial and Practice Areas are assessed at $100,320 for 2009 and 2010.Total assessed value – $117,780. See, Breakdown of Assessment – 2009, infra.

12.Assessment of Subject Areas – 2011 – 2012.The valuation of the subject property as $190,000 residential and $341,800 commercial is affirmed.The respective assessed values being $36,100 and $109,380

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[1]

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.[2] The constitutional mandate is to find the true value in money for the property under

appeal. By statute real and tangible personal property is assessed at set percentages of true value in money.[3]

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[4] This presumption is a rebuttable rather than a conclusive presumption. It places the burden of going forward with some substantial evidence on the taxpayer – Complainant. When some substantial evidence is produced by the Complainant, “however slight,” the presumption disappears and the Hearing Officer, as trier of facts, receives the issue free of the presumption.[5] The presumption is not evidence of value.

The presumption of correct assessment is rebutted when the taxpayer presents substantial and persuasive evidence to establish that the Board’s assessment is erroneous and what correct assessment should have been on the property.[6]

Classification of Golf Courses

Statutory & Case Law Definition

The “land used as a golf course” is classified as residential property.[7] Where real property is used or held for use for more than one purpose and such uses result in different classifications, the county assessor is to allocate to each classification the percentage of the true value in money of the property devoted to each use.[8]

The Court of Appeals, Eastern District has addressed the interpretation of the phrase “land used as a golf course.”[9] In Zimmerman, the Court held (citations omitted):

“We now look at what the legislature intended by the language “used as” in the phrase “land used as a golf course.” The plain meaning of “used” is “to put into action or service.” Webster’s Third New International Dictionary. To further determine the intent of the legislature, we look at the context in which words are used. Elsewhere in Section 137.016.1(1) the legislature used the phrase “vacant land in connection with an airport.” (emphasis added). It is significant that the legislature chose “used as” in relation to golf courses, but it employs “in connection with” regarding airports. “Used as” is a narrower phrase than “in connection with.” In the definition of “residential property,” if the legislature had intended to include anything other than land which is “put into action or service” to play golf, it would have used a broader phrase such as “in connection with.”

 

Next, we look at the plain and ordinary meaning of “golf course” as it is used in the phrase “land used as a golf course.” A “golf course” is an “area of land laid out for the game of golf with a series of 9 or 18 holes each including tee, fairway, and green and often one or more natural or artificial hazards.” Webster’s 3rd New International Dictionary. Golf is not played on barren untouched land. Rather, certain improvements are necessarily incident to a golf course: tee boxes, bunkers, greens, sand traps, golf cart paths, and maintenance sheds.

 

. . .

 

Therefore, we hold that “land used as a golf course” is the ground itself on which the game of golf is played as well as improvements that are necessarily incident to the operation of a golf course.”

 

Application to Subject Property

 

It is now necessary to apply the foregoing to the case at hand and the three areas which comprise the property under appeal.

Short Course Area

The three acre Short Course Area contains tee boxes, fairways, bunkers and greens. All of which are a part of an individual being able to play a short course game of golf. This area comes within the meaning of the phrase “land used as a golf course” as determined by the Zimmerman court. Accordingly, the Short Course Area is classified as residential.

Commercial Area

The only point of disagreement with regard to the Commercial Area is the claim of Mr. Boggs that the approximately quarter of an acre on which the putt-putt course exists should not be a part of the Commercial Area, but should be separated from this two acre tract. In other words, the issue to be decided is whether the area used as a miniature golf or putt-putt course constitutes “land used as a golf course.” The Hearing Officer is not so persuaded.

The Hearing Officer is quite familiar with both the game of putt-putt golf and golf as it is played under the rules of the United States Golf Association and the Royal and Ancient. While the game of putt-putt is played over a course of 9 or 18 holes, it is essentially a game played on an artificial putting green and nothing more. Putting a golf ball from off a rubber mat on to the astro-turf green, through an opening in a miniature wind-mill, a clown face, a PVC pipe or up a ramp to get to the hole is distinctly different than teeing up a ball on a grass tee box, driving it down a grass fairway to attempt to land it on the grass green in two or three strokes and then putting the ball into the cup. The Hearing Officer simply cannot fathom that the members of the legislature who enacted the law which embodied the definition of residential property envisioned that a putt-putt course was the same as “land used as a golf course.”

The Commercial Area does not constitute “land used as a golf course.” Accordingly the two acre tract with improvements is to be assessed as commercial property.

Practice Area

The issue to be addressed with regard to the Practice Area is whether an area which has facilities for practice putting, practice chipping and practice driving constitutes “land used as a golf course.” The Zimmerman court did not address this. Nor was it addressed in the later Algonquin case.[10] The only other time the question of classification of a golf course has been addressed by a Missouri Court.

In Zimmerman, the court did give a specific list of amenities which it found to be “certain improvements . . . necessarily incident to a golf course.” Those amenities were: certain improvements are necessarily incident to a golf course: tee boxes, bunkers, greens, sand traps, golf cart paths, and maintenance sheds. Applying the maxim – Expressio unius est exclusio alterius[11] – to the problem at hand, the court did not list practice putting greens, practice chipping areas or driving ranges, therefore, those items were excluded from “improvements necessarily incident to a golf course.” The Hearing Officer finds those items encompassed in the Practice Area do not come under the Zimmerman holding as what constitutes “land used as a golf course.” Accordingly, the Practice Area must be classified as commercial.

Breakdown of Assessment – 2009

Land Value

The 2009 appraised land value under the Board decision constituted $301,800 of the total appraised value. This calculates to a per acre value of $11,295 for the entire tract.[12] This was the same land value applied for the 2011 assessment.[13] Accordingly, the land value for the Short-Course Area is $33,885.[14] The land value for the remaining 23.72 acres is $267,915.[15]

Improvements Value

The 2009 appraised improvements value under the Board decision was $103,600. The Total Improvement Value (TIV) under the cost approach was reported as $290,120 of which $162,000 consisted of the value for golf course improvements. The TIV was adjusted to $261,108 or a 90% adjustment factor.[16] An adjustment to the golf course improvements of 90% results in an adjusted value of $145,800. Accordingly, under the cost approach, 56 percent of the improvements value represented the value of the golf course improvements.[17] Applying that percentage to the total appraised improvements value of $103,600, results in $58,016 as golf course improvements, and the remaining $45,584 as other improvements.


Assessed Values

The golf course improvements being on the land used as a golf course constitute residential improvements. The other improvements valued are commercial improvements.

Residential Values

The residential land value of $33,885 added to the residential improvements value of $58,016 results in a total appraised residential value of $91,901, rounded to $91,900. Assessed at 19%, the residential assessed value is $17,460.

Commercial Values

The commercial land value of $267,915 added to the commercial improvements value of $45,584 results in a total appraised commercial value of $313,499, rounded to $313,500. Assessed at 32%, the commercial assessed value is $100,320.

Total Assessed Value

The total assessed value for 2009 and 2010 is: $117,780, $17,460 – residential and $100,320 – commercial.

ORDER

Appeal No. 09-10922

The assessed valuation for the subject property as determined by the Board of Equalization for St. Louis County for January 1, 2009, is AFFIRMED as to valuation and SET ASIDE as to classification.

The assessed value for the subject property for tax years 2009 and 2010 is set at: $117,780: $17,460 – residential and $100,320 – commercial.


Appeal No. 11-10677

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for January 1, 2011, is AFFIRMED.

The assessed value for the subject property for tax years 2011 and 2012 is set at: $145,480: $36,100 – residential and $109,380 – commercial.

Application for Review

A party may file with the Commission an application for review of this decision within thirty 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. [18]

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 August 28, 2012.

STATE TAX COMMISSION OF MISSOURI

 

 

_____________________________________

W. B. Tichenor

Senior Hearing Officer

 

 

 

 

Certificate of Service

 

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 28th day of August, 2012, to:  Apollo Carey, 600 Washington Avenue, 15th Floor, St. Louis, MO   63101-1313, Attorney for Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, 41 South Central Avenue, Clayton, MO 63105; Jake Zimmerman, Assessor, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

 

 

___________________________

Barbara Heller

Legal Coordinator

 

 

 

Contact Information for State Tax Commission:

Missouri State Tax Commission

301 W. High Street, Room 840

P.O. Box 146

Jefferson City, MO 65102-0146

573-751-2414

573-751-1341 Fax

 

 

 

[1] Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.

 

[2] Article X, Sections 4(a) and 4(b), Mo. Const. of 1945

 

[3] Section 137.115.5, RSMo

 

[4] Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958)

 

[5] United Missouri Bank of Kansas City v. March, 650 S.W.2d 678, 680-81 (Mo. App. 1983), citing to State ex rel. Christian v. Lawry, 405 S.W.2d 729, 730 (Mo. App. 1966) and cases therein cited.

 

[6] Hermel, supra; Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959)

 

[7] Section 137.016.1(1), RSMo

 

[8] Section 137.016.4 RSMo

 

[9] Zimmerman v. Mo. Bluffs Golf Joint Venture, 50 S.W.3d 907, 912 (Mo. App. E. D. 2001)

 

[10] Algonquin Golf Club et al v. STC et al, 220 S.W.3d 415 (Mo. App. E.D. 2007)

 

[11] The expression of one things is the exclusion of another. Also termed, Inclusio unius est exclusio alterius (The inclusion of one is the exclusion of the other) or enumeratio unius est exclusion alterius (The enumeration of one is the exclusion of the other). – Black’s Law Dictionary, Seventh Edition, Legal Maxims, pp. 1635, 1633, 1643

 

[12] Exhibit 1; Exhibit AJ (26.72 acres); $301,800 ÷ 26.72 = $11,294.91, rounded to $11,295

 

[13] Exhibit 14

 

[14] $11,295 x 3 = $33,885

[15] $301,800 – $33,885 = $267,915

 

[16] Exhibit 1

 

[17] $145,800 ÷ $261,108 = .558, rounded to 56%

[18] Section 138.432, RSMo.