John Paul & Nancy Quick v. Copeland (Franklin)

JOHN PAUL & NANCY QUICK,)

)

Complainants,)

)

v.) Appeal No.10-57001

)

TOM COPELAND, ASSESSOR,)

FRANKLIN COUNTY, MISSOURI,)

)

Respondent.)

DECISION AND ORDER

HOLDING

Decision of the Franklin County Board of Equalization sustaining the assessment made by the Assessor is AFFIRMED.True value in money for the subject property for tax year 2010 is set at $1,394,600, residential assessed value of $264,974.Complainants appeared pro se.Respondent appeared in person and by County Counselor, Mark Vincent.

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

ISSUE

Complainants appeal, on the ground of overvaluation, the decision of the Franklin County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2010, based upon the market conditions and the physical condition of the property as of

January 1, 2009.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 decision of the Franklin County Board of Equalization.A hearing was conducted on September 21, 2011, at the Franklin County Administration Building, Union, Missouri.

2.Assessment.The Assessor appraised the property at $1,394,600, a residential assessed value of $264,974.[1]The Board sustained the assessment.[2]

3.Subject Property.The subject property is located at 160 Charles Dr., St. Clair, Missouri.The property is identified by map parcel number 29-1-02.0-1-099-001.000.The property consists of 5.70 acres improved by a one-story, residential care facility constructed in or around the year 2008.The exterior of the facility is composed of vinyl siding and brick veneer with a shingled roof.The structure is on a concrete slab foundation.The facility contains approximately 21,154 square feet of gross building area.The building is of average quality construction and is in average condition for a typical structure of comparable age and quality.The facility is comprised of 24 two-room suites, each having one full bathroom.There is also a foyer area, a dining area, a kitchen and an additional half bathroom.There is a front drive-thru canopy, a secondary open canopy, a concrete patio area and supporting parking.[3]The facility was operating with eleven residents as of January 1, 2009, and January 1, 2010.[4]

4.Complainant’s Evidence.Complainant submitted Exhibits A and B which were received into the record.Mr. Quick testified at hearing.

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.[5]

Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $1,100,000, as proposed.See, Complainants Fail to Prove Value of $1,100,000, infra.

5.Respondent’s Evidence.Respondent submitted Exhibits 1 and 2, which were received into evidence.Mr. Dodd testified at hearing.

Respondent’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $1,900,000, as proposed.See, Respondent’s Valuation Not Persuasive, infra.

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.[6]

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.[7]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.[8]In an overvaluation appeal, true value in money for the property being appealed must be determined based upon the evidence on the record that is probative on the issue of the fair market value of the property under appeal.

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[9]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.The presumption of correct assessment is rebutted when the taxpayer or the Respondent when advocating a value different than that set by the Board, presents substantial and persuasive evidence to establish that the Board’s valuation is erroneous and what the fair market value should have been placed on the property.[10]As will be addressed below, neither Complainants, nor Respondent presented substantial and persuasive evidence that rebutted the presumption of correct assessment by the Board.

Standard for Valuation

Section 137.115, RSMo, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so.[11]True value in money is defined in terms of value in exchange and not value in use.[12]It is the fair market value of the subject property on the valuation date.[13]Market value is the most probable price in terms of money which a property should bring in competitive

and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.

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:

1.Buyer and seller are typically motivated.

2.Both parties are well informed and well advised, and both acting in what they consider their own best interests.

3.A reasonable time is allowed for exposure in the open market.

4.Payment is made in cash or its equivalent.

5.Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6.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.[14]

Weight to be Given Evidence

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but 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.[15]

The Hearing Officer as the trier of fact may consider the testimony of an owner or expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances.The Hearing Officer is not bound by the opinions of the owner or of an expert who testify on the issue of reasonable value, but may believe all or none of the owner’s or expert’s testimony and accept it in part or reject it in part.[16]

Methods of Valuation

Proper methods of valuation and assessment of property are delegated to the Commission.It is within the purview of the Hearing Officer to determine the method of valuation to be adopted in a given case.[17]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.[18] Mr. Quick elected to prepare his own version of a cost approach.The deficiencies and unpersuasiveness of the Quick cost approach will be addressed under Complainants Fail to Prove Value of $1,100,000, infra.

Mr. Dodd, on behalf of Respondent, developed the cost approach to conclude value.Respondent’s appraiser also addressed both the comparable sales and income approaches and elected to not develop either.The rational for not developing the sales comparison approach was a lack of comparable sales data.The income approach was not developed because as of the valuation date, an income stream had not been established, since the property was not fully occupied and there had not been a year of income and expense history that could be utilized.

Utilization of Sales Comparison and Income Approaches

The property under appeal would have been purchased in the hypothetical sale on January 1, 2009, as an investment property.Mr. Dodd properly concluded, “. . . the subject property is a typical income producing property.”[19]Therefore, any analysis that could have been made looking at sales data and income streams would have been beneficial in addressing this appraisal problem.The appraiser did not attempt to develop a sales comparison analysis due to the fact that there was a lack of comparable sales data, or in the words of Mr. Dodd “. . . sales information on comparable properties like the subject property appeared to be non-existent.”[20]

Sales Comparison Approach

It is understood that Mr. Dodd cannot create sales data, either there is data that can be used in a comparable sales analysis or there is not.In an appraisal problem such as this some creativity in find sales comparables or in using limited data may need to be utilized.It was unclear to the Hearing Officer the extent of the appraiser’s search for comparable sales.That is whether it was confined to Franklin County or expanded to other counties in Missouri to attempt to locate time relevant sales of similar residential care facilities.The Hearing Officer can certainly appreciate a lack of sales data in Franklin County on residential care facilities.However, sales in other counties might have been helpful in concluding value.Although it is understood the difficulty Mr. Dodd would encounter attempting to locate sales of residential care facilities in other areas of the state.

It did come out during Mr. Quick’s cross-examination of Mr. Dodd that Complainants had recently sold a similar facility in Osage County.It would appear that Mr. Dodd would have at least have been aware that Complainants were the owners/operators of other similar facilities, if not identical, given the subject’s floor plan appears to be what the Quick’s use for other facilities.[21]The use of the discovery process could have provided important information as to Complainants’ other facilities and information as to any time relevant sales of residential care properties in other counties.Clearly, the single sale does not necessarily establish the market.Nevertheless, an investigation and review of the Osage County sale and income and expense data for that property would have provided a basis for analyzing the subject.The Osage County sale would have been beneficial to have developed a gross income multiplier.[22]This sale could have been used to see if the potential gross income of the subject would, in fact, support the indicated value under the Dodd cost approach.

Although not conclusive as to value, the Osage County sale would have provided a valuable check against the cost approach, as to its viability as a basis for concluding value.Even absent other relevant sales data from Franklin or other counties, the consideration and analysis of the Osage County sale would have made the Dodd appraisal a stronger report.It would have provided an indicator as to what an actual investor had paid for what apparently was a very similar property.In this somewhat unusual case, this single sale could have had probative value.Both Complainants and Respondent’s appraiser should have presented data relative to this sale.

Income Approach

The recognition that the property under appeal is an income property which would be purchased by an investor buyer weighs heavily on developing the income approach from the data that would be available.The fact that the subject had only opened in 2008 and in January 2009 and 2010 was less than 50% occupied[23] does provide only a limited income and expense history.However, the income and expense data for the partial year of 2008 and the income and expenses as of January 1, 2009, could have easily been projected for a full year to provide a basis for performing the income approach.

Through the discovery process, additional information could have been obtained from Complainants as to the income and expense history on their other properties in other counties.A comparison of such data to the rents being charged at the subject and the expense ratio of existing operational facilities as compared to the subject would have provided the basis for development of the income approach.Furthermore, it is inconceivable that Complainants would not have developed a pro forma of projected income and expenses on the operation of the subject facility.This would have been available through discovery to Respondent for use in preparation of the Dodd appraisal.

While having a three year or more income and expense history is preferred, in an instance such as this utilization of the limited history that was available, analysis of any pro forma for the subject, and analysis of the operating statements for other of Complainants’ facilities would have establish an appropriate basis as to what a potential buyer would have paid for the subject.Any knowledgeable purchaser would have done a pro forma income analysis using the actual income and expenses and such other income and expense data from similar residential care facilities as he could obtain.Both Complainants and Respondent would have been well served in this case to have done likewise.

Summary

The foregoing discussion as to the two approaches considered by Mr. Dodd but rejected is presented to illustrate the need in appraisal techniques for appeals before the Commission to sometimes “color outside the lines” or “think outside the box” in order to get the best possible indication of the fair market value.The Hearing Officer would concede that many appraisers would approach this problem, just as Mr. Dodd and utilize only the cost approach.A stronger appraisal approach would have made the type of analyses addressed above.The failure of Complainants to present an income and expense analysis to establish a concluded value under the income approach and sales data that might be known to them concerning their own or other residential care facilities, even if requiring the expertise or assistance of a real estate appraiser is inexplicable.

Complainants Fail to Prove Value of $1,100,000

In order to prevail, Complainants 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, 2009.[24]There is no presumption that the taxpayer’s opinion is correct. The taxpayer in a Commission appeal still bears the burden of proof.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.”[25]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[26]Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact.The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief.[27]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[28]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[29]The “cost approach” tendered by Mr. Quick is not deemed by the Hearing Officer to have been based on proper elements or a proper foundation.As will now be addressed its deficiencies render it of no probative on the issue of fair market value.

Quick Cost Methodology

A cost approach could be established upon a contractor presenting the total costs for the construction of the subject facility, attributable depreciation from all sources plus land value.However, that is not what Mr. Quick’s approach presented.Mr. Quick pieced together in jig-saw fashion a collection of estimates for 21 various items of construction.[30]To this he added a value for the subject site and the site improvements taken from the appraisal of Mr. Dodd.[31]Finally, Mr. Quick elected to add 10% for “a return investment” and then another 12% because “any

piece of property is worth more than the materials and labor in it.”[32]This does not comport with the generally recognized elements for the development of a cost approach.[33]

The first problem is the collection of cost sources.The estimates presented do not constitute a contracting proposal or consolidated bid estimate from a general contractor for all of the materials and labor necessary for the completion of the subject facility with its driveway, parking lot and supporting amenities.Mr. Quick presents a proposal which essentially has him operating as his own general contractor.This apparently is the manner in which he built the subject facility and builds Complainants’ other similar facilities.However, if a taxpayer wishes to present a cost approach based on a general contractor’s bid, then it should be presented on that basis.That is a bid for the completed work from the general contractor.

Mr. Quick’s collection of bids come from a variety of dates, as opposed to a unified bid or estimate for a construction as of January 1, 2009.The bids range from June, 2009, February, 2011, May 14, 2009, March 2011, October 2008, June 2009, March 2011, February 2011, February 2011, June,2009, November 2009, March 2011, and November 2010 and various undated bids.The bids are for different facilities, including, Victorian Manor – Washington, an Alzheimer Facility (undisclosed location), a “new project” (undisclosed location), Victorian Manor – Sullivan, Victorian Manor (undisclosed location), New Alzheimer’s Facility – Cuba.It is unclear if all of these various facilities are in fact identical to the subject facility.

Mr. Quick’s reliance on the Dodd appraisal for the site value and site improvements cost is not supported by any documentation in Complainants’ Exhibit A.Mr. Quick simply borrowed these costs, irrespective of whether they were in fact appropriate.The upward adjustments of 10% and 12% are not supported anywhere in Exhibit A by any actual market data.These are simply figures pulled out of the air in the Quick valuation process.

Presenting a conclusion of value upon the foregoing basis does not constitute substantial and persuasive evidence to the mind of the Hearing Officer.A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”[34]With regard to the proposed value based upon Mr. Quick’s cost methodology, the Hearing Officer is persuaded that to conclude a value of $1,100,000 based upon the information contained in Exhibits A and B would be to conclude a value founded upon speculation and conjecture.Accordingly, the Complainants’ evidence did not rebut the presumption of correct assessment and establish the true value in money of the property under appeal as of January 1, 2009.

Respondent’s Valuation Not Persuasive

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law.[35]As will be discussed below, the cost approach presented in the Dodd appraisal did not reach the level of substantial and persuasive evidence in the mind of the Hearing Officer.

Replacement Cost New

The Hearing Officer has no basis to question the replacement cost new (RCN) of the subject improvements as calculated by Mr. Dodd.[36]The appraiser relied upon a well accepted and recognized costing system[37] to arrive at his estimate of RCN.There is no indication that Mr. Dodd erred in his utilization of the system for cost estimates in the Marshall manual.The appraiser applied a per square foot cost from Marshall Valuation to the square footage for the gross building area, the canopies and the patio to arrive at a cost for each individual item.The evidence presented by the taxpayer on the various bids for difference components of the constructio