Joyce Martin v. Muehlheausler (SLCO)

 

JOYCE ANN MARTIN,)

)

Complainant,)

)

v.) Appeal No.07-12205

)

PHILIP MUEHLHEAUSLER, ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

 

DECISION AND ORDER

 

HOLDING

 

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor is SET ASIDE.True value in money set at $495,000, assessed residential value $94,050. Complainant appeared pro se.Respondent appeared by Counsel Paula J. Lemerman. Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2007.

SUMMARY

Complainant appealed, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which sustained the valuation of the subject property.The Assessor determined an appraised value of $500,000, assessed value of $95,000, as residential property.Complainant proposed a value of $300,000, assessed value of $57,000 in the Complaint for Review of Assessment.Case submitted on exhibits filed.

The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

Complainant’s Evidence

Complainant submitted a group of documents in support of her opinion of fair market value of $300,000.Notwithstanding specific instructions in the Order dated October 23, 2008 (See, Finding of Fact 2. i, infra), Complainant failed to provide a list of documents, identify the documents in her narrative statement or to label the documents as Exhibits A, B, etc., as ordered.Accordingly, the Hearing Officer has marked for purposes of identification the Complainant’s documents as follows:

 

Complainant’s Exhibits are received into evidence.Ms. Martin’s opinion of value of $300,000 is based upon the sale of the property to the west of the subject in 2005 for $328,900 and the appraisal of the house to the east of the subject for $186,000.

Respondent’s Evidence

Respondent filed with the Commission the Appraisal Report (Exhibit 1) of Timothy Hannan, St. Louis County residential Real Estate Appraiser.Exhibit 1 was received into evidence.Mr. Hannan arrived at an opinion of value for the subject property of $495,000 based upon a sales comparison approach to value.In performing his sales comparison analysis, the appraiser relied upon the sales of four properties deemed comparable to the subject property.

FINDINGS OF FACT

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

2.a.By Order issued March 28, 2008, case was set for evidentiary hearing at

11:00 a.m., Tuesday, July 8, 2008.

b.Complainant requested by letter dated June 25, 2008, that the evidentiary hearing be continued.By Order issued June 30, 2008, Complainant’s request for continuance was granted.

c.By Order issued July 21, 2008, case was set for evidentiary hearing at 11:20 a.m., Thursday, August 14, 2008.

d.Complainant requested by letter dated August 1, 2008, that the evidentiary hearing be continued.Evidentiary hearing was cancelled by Order, dated August 5, 2008.

e.By Order issued September 12, 2008, case was set for evidentiary hearing at 3:00 p.m. Wednesday, October 22, 2008.

f.Complainant requested by letter dated October 13, 2008 that the evidentiary hearing be continued.

g.By Order issued October 17, 2008, evidentiary hearing set for October 22, 2008 was cancelled.Complainant was ordered as follows:

“… to file with the Hearing Officer, copy to Attorney for Respondent, all documents to be offered in Complainant’s case in chief to establish a true value in money (fair market value) as of January 1, 2007, the value of $300,000 for the property under appeal (Locator No. 29L110521 – 9951 Bauer Road, St. Louis, Missouri) as set forth in the Complaint for Review of Assessment.Complainant shall also provide a narrative statement setting forth the basis for her opinion of true value in money and any explanation of the documents filed as to how they establish the market value of the subject property as of 1/1/07.Complainant’s documents and statement are to be filed on or before November 18, 2008.”

 

h.Complainant requested by letter dated October 20, 2008, a further continuance and setting of another date for an evidentiary hearing.

i.By Order issued October 23, 2008, the following was ordered in the appeal:

“The Order issued October 17, 2008, giving Complainant until November 18, 2008, to mailing her documents and a narrative statement in “explanation of the documents” remains in effect.Complainant shall submit a list of the documents, the individual documents shall be identified by letters in sequence (A, B, C, etc), photographs are to be copied to or affixed to letter size paper, with a brief description below each photographs of what is depicted.A group of photographs shall be submitted as a single exhibit.Complainant’s typewritten narrative shall provide a statement explaining what each document is offered to establish and how it relates to establishing the fair market value of the property under appeal.

 

“After review of the Complainant’s documents and typewritten narrative statement, the Hearing Officer will determine if Complainant’s evidence meets the burden of proof to make a prima facie case for the relief sought.If the Hearing Officer determines that he has need of further oral explanation in order to understand Complainant’s documents he will then set the case a fourth time for an evidentiary hearing.

 

“Failure of Complainant to comply with the Order and the Order of October 17^th, will result in dismissal of the appeal.”

 

j.Complainant made no filing with the Commission as ordered on or before November 18, 2008.

k.By Order issued December 8, 2008, Appeal was dismissed for failure of prosecution and failure to comply with the orders of the Commission.[1]

l.By letter dated December 15, 2008, Complainant informed the Hearing Officer she had filed her documents at Respondent’s office and submitted a copy of the documents to the Commission, as previously ordered.

m.By Order dated, January 6, 2009, the Order dismissing the appeal was vacated and the appeal was reinstated.

3.The subject property is located at 9951 Bauer Road, St. Louis, Missouri.The property is identified by locator number 29L110521.The property consists of an irregularrectangular lot (203/182 x 306/326) containing approximately 60,002 square feet (1.38 acre) improved by a one and a half story single-family residence built in 1980.The home appears to be custom built and predates most homes of this size for the area.The gross living area is 3,802 square feet and has a 2,620 square foot basement with no known finished area.The exterior is brick veneer over frame construction.The home has a large patio, an attached oversized rear entry two-car garage and an oversized detached two-car garage and an oversized detached carport.The residence has a total of nine rooms, four bedrooms, two full and one half baths.The subject is located on a moderately traveled two-lane road.The property was purchased in August 1996 for $380,000.It was listed for sale in 1997 and 1998 for $925,000, lowered to $895,000. [2]

4.There was no evidence of new construction and improvement from January 1, 2007, to January 1, 2008.

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, 2007, to be $300,000, as proposed in the Complaint for Review of Assessment and Complainant’s narrative statement.

6.The properties relied upon by Respondent’s appraiser were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located within .07 of a mile to 1.05 mile of the subject.[3]Each sale property sold at a time relevant to the tax date of January 1, 2007, in a range from March 2004 to July 2006.The sale properties were similar to the subject in style (1.5 and 2 story homes), quality of construction (Good-Brick and frame/vinyl), age (12-18 years), condition (comps good versus subject’s average), room (7-10 rooms), bedroom (4-5) and bathroom (3 full and 1-2 half) count, living area (3,544-3,814 sq. ft), location (subdivision), site size (10,714 – 35,301 sq. ft) and other amenities of comparability.

7.The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable.All adjustments were appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.In particular the appraiser properly accounted for differences in location, site size, age, condition, living area and other differences in amenities between the subject and each comparable.

8.The net adjustments ranged from -6.5% to 10.9%.These are small percentages of adjustment and well within the generally acceptable range recognized by appraisers.The adjusted sales prices for the comparables calculated to $505,000, $465,400, $542,200 and $465,600, respectively.The appraiser concluded on a $495,000 value which calculated to a value per square foot of $130.20 compared with the sales prices per square foot of living area for the comparables of $137.65, $134.40, $158.30 and $118.51.The comparison of the value per square foot provides a validation check for the appraisal, to demonstrate that the indicated value is consistent with the market for properties such as the subject.The indicated value on a per square foot of living area value falls below both the mean and median of the per square foot sale prices doe the comparables.This is reflective of the subject home’s greater age and inferior condition that was recognized by the appraiser.

9.Respondent’s evidence met the standard of substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the value of the subject, as of January 1, 2007, to be $495,000.

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.[4]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[5] The presumption in favor of the Board is not evidence.A presumption simply accepts something as true without any substantial proof to the contrary.In an evidentiary hearing before the Commission, the valuation determined by the Board, even if simply to sustain the value made by the Assessor, is accepted as true only until and so long as there is no substantial evidence to the contrary.

The presumption of correct assessment is rebutted when the taxpayer, or respondent when advocating a value different than that determined 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.[6]In the present case, Complainant’s evidence, as will be discussed below, failed to reach the standard of substantial and persuasive to rebut the presumption of correct assessment by the Board.Respondent’s evidence, on the other hand, met the required standard and established the value of $495,000 as the fair market value for the subject as of January 1, 2007.

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.[7]It is the fair market value of the subject property on the valuation date.[8]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.[9]

 

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.[10]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.[11]

Complainant did not present an opinion of value based on or developed from any recognized approach to the valuation of real property in an appeal before the Commission.Taxpayer’s who elect to rely upon their own contrived method to establish or support an opinion of value run the risk of failing to meet case law standard to establish value.Such is the case in the present appeal.

Respondent’s appraiser developed an opinion of value relying upon an established and recognized approach for the valuation of real property, the sales comparison or market approach.The sales comparison approach is generally recognized to be the most reliable methodology to be utilized in the valuation of single-family residences.In most instances sale properties will not be exactly like the property being appraised.There will most generally always be differences between properties. The standard for a sale property to be utilized in a comparative sales analysis is not that it be identical to the appraisal property.The standard is that the sale property and the appraisal property be similar.The properties need only be sufficiently similar so that they can be compared.

Differences in the various factors of comparability between the sale property and the appraisal property must be adjusted for in a sales grid.Monetary adjustment to account for variances in factors between a sale property and the appraisal property is the way in which the sales comparison is developed most often in an appraisal of a single family property.The development of the Hannan sales comparison approach provided substantial and persuasive evidence from which a conclusion of value could be reached.

Complainant’s Burden of Proof

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, 2007.[12]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.”[13]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[14]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.[15]

The owner of property is generally held competent to testify to its reasonable market value.[16]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[17]As will now be addressed the narrative statement of Complainant and the exhibits filed do not establish an opinion of value based upon proper elements or a proper foundation.Accordingly, no probative weight can be given to the opinion proffered by the owner.Complainant’s evidence failed to establish prima facie the value proposed.

Analysis of Complainant’s Evidence

Exhibits A & B

These two exhibits are from a stand point of substance identical.The only difference being that Complainant added some handwritten comments on the second page of the documents.The comments express Complainant’s point of view on some of the information provided.

The critical factor for the Hearing Officer in reviewing these exhibits is the complete absence of any relevant evidence from any recognized methodology to establish a fair market value as of January 1, 2007 of $300,000.Ms. Martin’s comments concerning the condition of her property are informative. However, such information is insufficient to establish what a willing buyer and seller would have agreed to as a sale price on January 1, 2007.Furthermore, when taxpayers are not inclined to permit an appraiser to personally view interior condition problems, a negative inference is drawn as to claims of condition problems.Complainant’s assertion of her house being an “old hunk of junk” is simply not supported by the photographic evidence in this record.[18]The few photographs[19] provided by Ms. Martin only reflect what would generally be considered as normal or average condition for a home the age of the subject.

Ms. Martin takes exception to the appraisal report of Mr. Hannan.It is her contention that the sale properties are not comparable to her property.The Hearing Officer is not so persuaded.There is no evidence upon which the Hearing Officer can conclude that the Complainant has any particular education, training and experience that qualifies her as an expert in the area of comparability of properties for appraisal purposes.More importantly, the data and photographs provided by Mr. Hannan provide ample evidence from which the Hearing Officer was able to conclude that the four sale properties were appropriate for use as comparables in this appraisal problem.

The Complainant’s discussion relative to allegations of discrepancy in the manner in which houses on Bauer Road are assessed is irrelevant to finding the fair market value of the subject.Likewise, the amount of tax increase from the 2005-06 assessment cycle to the 2007-08 cycle provides no probative information on the issue of the true value in money of the Martin property as of January 1, 2007.To the extent that Ms. Martin appears to be asserting some claim of discrimination, it was not stated as a ground for appeal in the Complaint for Review of Assessment and therefore is not before the Commission.In addition information such as that provided in Exhibits A and B totally fail to establish that the subject property has been assessed at a value greater than 19% of its true value in money or at a value greater than the average residential assessment for property in St. Louis County.[20]

The Complainant’s proposed value of $300,000 equates to a per square foot value of living area of only $78.91.There is no evidence presented in Exhibits A and B or any other exhibits submitted by Ms. Martin that demonstrates that properties comparable to the subject were selling for such a price in a time frame relevant to a valuation date of January 1, 2007.Exhibits A & B do not constitute substantial and persuasive evidence to establish the fair market value of the subject property.

Exhibits C through J

This series of exhibits consist of photographs and property record cards on the four sale comparables utilized by Mr. Hannan in his appraisal.Ms. Martin provided handwritten comments on the photographs and property record cards challenging the comparability of these properties to her property.Notwithstanding, Complainant’s personal opinions relative to these properties, the exhibits only provided substantiation and verification to the data given in the Hannan appraisal.

The Hearing Officer does note that the photograph submitted by Complainant for the sale property at 5534 Pine Wood Forest[21] is not a photograph of the same property shown in Exhibit 1.[22]However, the floor plan diagram for the Pine Wood Forest property shown in Exhibit F does fit the Hannan Comparable Sale # 3 photograph.It does not fit the Complainant’s Exhibit E photograph.Therefore, the Hearing Officer concludes that Complainant’s Exhibit e is not a photograph of the property located at 5534 Pine Wood Forest.

This collection of exhibits fails to establish that the properties utilized in the Hannan appraisal were not comparable to the subject for purposes of this valuation problem.

Exhibit K

The photograph of a portion of Bauer Road asserted to be across the street from the Complainant’s house is of no probative benefit on the issue of fair market value.First the Hearing Officer notes that the subject property is located at the corner of Tammy Kay Drive and Bauer Road.[23]Complainant’s exhibit purports to represent that her house is located on or at the beginning of a curve in Bauer Road.That is not supported by the map provided in Respondent’s Exhibit 1.Bauer Road is shown to be straight in front of Complainant’s property.

Nevertheless, Mr. Hannan provided photographs of the subject street scene, as well as the street scene at the side of Complainant’s house on Tammy Kay.[24]The Hannan photographs show that the subject has wooded land across both streets from it.Furthermore, Mr. Hannan properly adjusted for the subject not being in a subdivision in his location adjustment for the properties in Pine Wood Forest, Sunset Ridge and Sarah Ann Court.Complainant’s photograph does not support rejecting the Hannan appraisal.

Exhibit L

The group of photographs and comments presented in this exhibit provide such a limited view of the entire home as to be of no real benefit.As previously noted, photographs of cracks in the brick exterior and basement floor illustrate conditions consistent with a house the age of the subject.The photograph of the room on the half story does not establish that it is not available for use as a bedroom.It only shows that Complainant is apparently using it to store furniture.It is not the use by the owner, but the possible use that is critical in determining how the space should be designated for an appraisal.There is nothing to establish that the area shown in Exhibit L could not be utilized as a bedroom.

Complainant should have permitted the appraiser to have conducted an interior inspection.This would have allowed him to have firsthand knowledge of both condition and floor plan that could have impacted his appraisal.This limited photograph evidence is insufficient to bring Mr. Hannan’s conclusion of value into any serious question.It fully appears that the adjustments for age and condition properly addressed the factors represented in this Exhibit.

Exhibit M

The undated estimate[25] does not establish fair market value for the subject property.The estimate does not establish on its face what the item “List Price” actually is for.The notation that the document establishes a cost of “$61,800 to replace old kitchen,” is a notation made by Complainant.Furthermore, Complainant misstates the cost reflected in the estimate, because two different allowances totaling $10,283 reduces the cost to $51,597.

All of that aside, estimates for rehabbing or renovations have very limited worth in attempting to arrive at fair market value. A property is to be valued based upon its overall condition as of the valuation date – January 1, 2007.Costs for repairs and renovations to sale properties can be helpful to an appraiser when making the adjustment for such a condition factor when compared to a subject property that has not been renovated.However, repair estimates on the appraisal property only are a source of some validation as to condition.The most helpful information as to condition is to permit the appraiser to make an interior inspection during which the homeowner can point out the various items of deferred maintenance, outdated fixtures, etc.

Exhibit N

Complainant submitted a copy of the property record card on her property with her notations and comments.This exhibit provides nothing in the way of substantial and persuasive evidence to establish the fair market value of property under appeal as of January 1, 2007.Unsubstantiated opinions do not constitute probative evidence in a hearing before the Commission.

Exhibits O through R

The listing data, photographs and property record cards on four properties on Bauer Road do not constitute substantial and persuasive evidence to either rebut the presumption of correct assessment or to establish the true value in money for Complainant’s property. As previously noted, Complainant is not shown to be qualified as an expert in the appraisal of real property for assessment purposes before the Commission.Therefore, the proffered exhibits do not establish that these properties are proper sales comparables for appraising the subject property.It is noted that the property in Exhibit P has not recently sold according to the exhibit.Therefore, this property would not be appropriate to use in appraising the Martin property.

Summary and Conclusion

Complainant failed to present an opinion of value based on any accepted valuation methodology.The owner’s opinion of value of $300,000 for the property under appeal has no probative weight in this proceeding.Complainant’s evidence failed to rebut the presumption of correct assessment of the subject property by the Board.

Respondent’s Burden of Proof

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.[26]Mr. Hannan’s appraisal met the required burden of proof.Respondent presented substantial and persuasive evidence to establish a fair market value as of January 1, 2007, to be $495,000 for the property under appeal.

The adjustments made to the sale properties were consistent with generally accepted guidelines for the appraisal of property of the subject’s type.The adjustments properly accounted for the various differences between the subject and each comparable.In particular the location, site size, age and condition factors of each comparable was properly adjusted to bring the sale properties in line with the subject.The appraiser also addressed differences in other factors and amenities.The Respondent’s evidence rebutted any inference that the owner’s opinion of fair market value was correct.

ORDER

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax year 2008 is set at $94,050.

Complainant 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 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, MO65102-0146, 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 appeal is based will result in summary denial. [27]

The Collector ofSt. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending a 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 February 6, 2009.

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 6^thday of February, 2009, to:Joyce Ann Martin, 9951 Bauer Rd, St. Louis, MO 63128, Complainant; Paula Lemerman, Associate County Counselor, County Government Center, 41 South Central Avenue, Clayton, MO 63105, Attorney for Respondent; Philip Muehlheausler, Assessor, County Government Center, 41 South Central Avenue, Clayton, MO 63105; John Friganza, Collector, County Government Center, 41 South Central Avenue, Clayton, MO 63105.

 

 

___________________________

Barbara Heller

Legal Coordinator