Kenneth Baldridge, et al. v. Muehlheausler (SLCO)

State Tax Commission of Missouri

 

KENNETH R. BALDRIDGE, TRUSTEE,)Appeal No.03-10379

AHC PROPERTIES II LC,)Appeal No.03-10385

HANS WIEMANN,)Appeal No.03-10387

HANS WIEMAN, TRUSTEE,)Appeal No.03-10388

JACK & NANCY LAMPERT,)Appeal No.03-10396

402 S. BRENTWOOD LLC,)Appeal No.03-10398

ALFRED FLEISHER,)Appeal No.03-10400

WARSON VILLAGE APTS. ASSOC.)Appeal No.03-10403

NAVEED RAZZAQUE,)Appeal No.03-10404

DONALD YALKEMAN,)Appeal No.03-10406

STANFORD COURT APTS. LLC,)Appeal Nos.03-10407 thru 03-10412

SUBURBAN PARTNERS,)Appeal No.03-10413

GARY A. FOLLMAN)Appeal No.03-10414

MOULTON FAMILY LP,)Appeal Nos.03-10419 & 03-10420

CHAZ PAREE PARTNERS, LP,)Appeal Nos.03-10421 thru 03-10424

ASPEN WOODS APTS. LP,)Appeal Nos.03-10425 & 03-10426

CANYON APARTMENTS LLC,)Appeal Nos.03-10427 thru 03-10434

ARMSTRONG MAISON DE VILLE LLC,)Appeal Nos.03-10435 thru 03-10437

WILLOWBEND PARTNERS LLC,)Appeal No.03-10438

SUGAR PINES APTS. LLC,)Appeal No.03-10441

LIPTON PROPERTIES,)Appeal Nos.03-10443 thru 03-10446

WESTPORT STATION LLC,)Appeal Nos.03-10447

KAISER PROPERTIES LLC)Appeal No.03-10449

SIMON & FRANCINE KATZ,)Appeal No.03-10451

9315 KOENIG CIRCLE LLC,)Appeal Nos.03-10513 thru 03-10517

OAK TREE APTS. LP,)Appeal Nos.03-10526 & 03-10528

FIESER SERVICES, INC.,)Appeal No.03-10749

GARY A. FOLLMAN)Appeal No.03-10750

)

Complainants,)

)

v.)

)

PHILIP MUEHLHEAUSLER, ASSESSOR,)

ST. LOUIS COUNTY, MISSOURI,)

)

Respondent.)

 

ORDER

AFFIRMING HEARING OFFICER DECISION

UPON APPLICATION FOR REVIEW

 

On January 15, 2008, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming in part and setting aside in part the assessments by the St. Louis County Board of Equalization.

Respondent timely filed his Application for Review of the Decision.Complainant timely filed his Response.Respondent filed an unsolicited Reply to Response.

Respondent’s Points for Review

Respondent raised three points for review.They are:

1.                  The Hearing Officer erred in finding that the Complainant property owners have a due process right to notice prior to a more-than-fifteen percent (15%) increase in their property assessments, because the notice requirement of Section 137.115.11, RSMo is directory, not mandatory.

 

2.                  The Hearing Officer was arbitrary and capricious in imposing a sanction upon Respondent for failure to give the property owners notice.

 

3.                  The Hearing Officer erred in applying Section 137.115.11, RSMo as mandatory thereby violating the uniformity of assessment provision of the Missouri Constitution, Art. X, Section 3, and the equal protection provisions of the Missouri Constitution (Mo. Const. Art. I, Sec. 2 & 10) and the Constitution of the United States (U.S. Const., Amendment XIV).

 

Applicable Statutes

The statutes upon which the Hearing Officer relied in rendering his Decision were Sections 137.115.10, 137.115.11 and 138.060, RSMo.Decision, pp. 14 – 15.The Commission holds these are the appropriate provisions of law upon which the Decision should have been rendered.The Hearing Officer did not err in his reliance upon these statutes.

The cited statutes state in relevant part, as follows:

“Before the assessor may increase the assessed valuation of any parcel of subclass (1) real property by more than fifteen percent since the last assessment, excluding increases due to new construction or improvements, the assessor shall conduct a physical inspection of such property.”§137.115.10, RSMo. A.L. 2002 H.B. 1150, et al.

 

“If a physical inspection is required, pursuant to subsection 10 of this section, the assessor shall notify the property owner of that fact in writing and shall provide the owner clear written notice of the owner’s rights relating to the physical inspection. If a physical inspection is required, the property owner may request that an interior inspection be performed during the physical inspection. The owner shall have no less than thirty days to notify the assessor of a request for an interior physical inspection.” §137.115.1,1 RSMo.A.L. 2002 H.B. 1150, et al.

 

“ … In any county … with a charter form of government with greater than one million inhabitants, … in the event a physical inspection of the subject property is required by subsection 10 of section 137.115, RSMo, the assessor shall have the burden to establish the manner in which the physical inspection was performed and shall have the burden to prove that the physical inspection was performed in accordance with section 137.115, RSMo. In such county or city, in the event the assessor fails to provide sufficient evidence to establish that the physical inspection was performed in accordance with section 137.115, RSMo, the property owner shall prevail on the appeal as a matter of law. … .”§138.060.1, RSMo.A.L. 2002 H.B. 1150, et al.

It is important that subsection 10 was amended, subsection 11 was added in Section 137.115 and subsection 1 of Section 138.060 was amended in 2002 in the same legislation – H.B. 1150, et al.See, A.L. 2002 H.B. 1150 et al.Accordingly, it was proper for the Hearing Officer to read these provisions of the law together when addressing the notice issue in the Decision.

DECISION

Notice Requirement Mandatory

Respondent argues that the provisions of Section 137.115.11 are only directory and not mandatory.Respondent is asserting the Hearing Officer erred in reading the word “shall” as “has a duty to do” or “is required to” (Black’s Law Dictionary, Seventh Ed.) or as an “obligation” or “necessity”(Webster’s New World Dictionary, Second College Ed.).Respondent, in effect asserts the statute has no real meaning since the assessor is only directed to give notice and perform a property inspection and is not required to do so.To arrive at such a conclusion the Commission would have to conclude that the legislature enacted this statute to mean nothing.The argument is not persuasive.

Respondent’s line of reasoning that because the legislature did not include a penalty provision associated with an assessor failing to carry out the duties imposed by §137.115.11 it is not mandatory is likewise persuasive.

In addressing the rules of statutory construction, Missouri courts have held:

“The primary rule of statutory construction is to determine the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.The use of the word ‘shall’ in a statute will usually be interpreted to command the doing of what is specified, but the term is frequently used indiscriminately and courts have not hesitated to hold that legislative intent will prevail over common meaning. ‘In determining whether a statute is mandatory or directory, the general rule is that when a statute provides what results shall follow a failure to comply with its terms, it is mandatory and must be obeyed; however, it if merely requires certain things to be done and nowhere prescribes results that follow, such a statute is merely directory.’”401 North Lindbergh Associates v. St. Louis County Board of Equalization, 807 SW 2d 100, 104 (Mo. App. ED 1990) (citations omitted and emphasis added)

 

Generally, the use of the word “shall” in a statute connotes a mandatory duty.The absence or presence of a penalty provision is only one method for determining whether or not a statute is directory or mandatory.The absence of a penalty provision does not automatically override other considerations.St. Louis Police Officers’ Ass’n v. Board of Police Com’rs of City of St. Louis, 2007 WL 2915186 (Mo. App. ED 2007).When a statute mandates that something be done by providing that it “shall” occur and also provides what results “shall” follow a failure to comply with the statute, it is clear that it is mandatory and must be obeyed.SSM Health Care St. Louis v. Schneider, 229 S.W.3d 279 (Mo. App. ED 2007); Valli v. Glasgow Enterprises, Inc., 204 S.W.3d 273 (Mo. App. ED 2006).Generally, the use of the word “shall” in a statute connotes a mandatory duty.Neske v. City of St. Louis, 218 S.W.3d 417 (Mo. 2007); Fireman’s Retirement System v. City of St. Louis, 2006 WL 2403955 (Mo. App. ED 2006). The word “shall” in the text of a statute is usually used to express compulsion, obligation or necessity, and, therefore, it generally mandates an action.State ex rel Hunter v. Lippold, 142 S.W.3d 241 (Mo. App. ED 2004).

Respondent’s claim ignores the provisions of §138.060, enacted in the same bill as the amendment which placed subsection 11 into §137.115.To read subsection 11 only in the context of itself and that since it provides for no results which follow for failure to carry out the duties prescribed there is to read the statute too narrowly.Sections 138.060.1 and 137.115.11 must be read together.Section 138.060.1 specifically refers to §137.115.The result that follows for failure of the assessor to carry out the duties set forth in §137.115.11 is clearly found in §138.060.1 “… the property owner shall prevail on the appeal [before the Commission] as a matter of law.”

This application of the law, as was done by the Hearing Officerfinds clear support in the holding of the Missouri Supreme Court in Buck v. Leggett, 813 S.W.2d 872, 874-5 (SCt.Mo, 1991).There the Court ruled:

‘in construing a statute it is appropriate to take into consideration statutes involving similar or related subject matter when such statutes shed light upon the meaning of the statute being construed, even though the statutes are found in different chapters and were enacted at different times.’(citation omitted).

 

In the present instance, the two statutes (§§137.115.11 & 138.060) were not enacted at different times.They were enacted in the same bill.The section of law – 138.060.1 – setting forth the results to follow or the penalty to be imposed for failure to carry out the duty set by the other section of law – 137.115.11 –specifically refers to §137.115.It is clear with that reference the legislature intended the inspection and notice set forth in §137.115 must be read in conjunction with §138.060.1.Not reading the two statutes together and in harmony with one another ignores the plain language of §138.060.1.It is ignoring the rule of construction the Court established in Buck v. Leggett, supra.

Even using Respondent’s own argument that a result or penalty must be set out by the legislature for a “shall” statute to be mandatory, no error was committed by the Hearing Officer in his Decision.The result to follow or penalty to be imposed for the Assessors failure to comply with §137.115.11 is clearly established in §138.060.1.The Hearing Officer did not err as asserted by Respondent under this point.

Arbitrary and Capricious Sanction

The second argument advanced by Respondent is an argument over semantics. The Decision at page 16 holds, “The sanction to be imposed for failure to give the property owners this due process right [notice of increase of assessment of 15% or more and notice of rights relating to a physical inspection – §137.115.11] is that the property owners do not suffer an increase in their assessed values.Respondent’s claim of an arbitrary and capricious action by the Hearing Officer is that a “sanction … is nowhere to be found in Chapter 137 or 138.”The Hearing Officer’s use of the word sanction should simply be regarded as a synonym for “penalty” or “result.”Simply because the word sanction is not found in §137.115.11 or §138.060.1 does not mean that the result imposed by §138.060.1 is not a sanction.The Decision is clear that the Hearing Officer was following the mandate of §138.060.1 which states, “ … the property owner shall prevail on the appeal as a matter of law. … .”That is the sanction or penalty which results in the assessment not being increased.

In order for the Decision to be “arbitrary” it would have been based upon the individual discretion of the Hearing Officer or have been founded upon the prejudice or preference of the Hearing Officer rather than on reason or fact.See, Black’s Law Dictionary, Seventh Edition.For the Decision to be “capricious” it would have to have been founded on the Hearing Officer’s unpredictable or impulsive behavior contrary to the rule of law.See, Black’s Law Dictionary, Seventh Edition.

If §138.060.1 did not exist, then the determination that the taxpayers in these appeals were to prevail would have been arbitrary.The rule of law says failure of the assessor to establish compliance with §137.115.11 results in the property owners prevailing in an appeal before the Commission.The Hearing Officer’s Decision is not capricious.The action of the Hearing Officer was not based upon prejudice or personal preference.The language being argued was not an impulsive conclusion contrary to the applicable law.A determination based upon the clear language of a statute is neither arbitrary nor capricious.Respondent’s point is not well taken.The Hearing Officer did not err as challenged by the Respondent.

Respondent’s suggestion that “the Hearing Officer could have ordered the Assessor to provide the Complainants an opportunity for an inside inspection” is specious.Nowhere in the applicable statutes is such a remedy provided by the legislature for an assessor’s failure to comply with §137.115.11.Respondent’s suggested remedy is truly arbitrary and capricious as it would have had the Hearing Officer totally ignore §138.060.1.On the basis of the evidence before the Hearing Officer, Respondent failed to establish compliance with §137.115.11, the Hearing Officer had no alternative than to follow the mandate of §138.060.1 and rule in favor of the taxpayers.

The values appealed by the Complainants were the increased values place on the properties by Respondent in 2003.As a consequence of a finding that those values were invalid as a matter of law, Complainants were entitled to have the increases removed.This is precisely the effect of the Hearing Officer’s Decision.

Uniformity and Equal Protection Violation

Respondent’s final argument claims to be based in the uniformity and equal protection provisions of the Missouri and United States Constitution.The Commission notes that Respondent failed to raise this line of argument prior to the issuance of the Decision.Therefore, the Hearing Officer could not have erred for not considering an argument never presented.

However, a reading of Respondent’s argument reveals a misunderstanding of what is meant by uniformity on the same class or subclass of subjects.The subjects are not the owners of real property.Property is the subject of the ad valorem system of taxation in Missouri.The subclasses of real property in Missouri are generally characterized as residential, agricultural and commercial.Mo. Const. Art. X, Section 4(b); §§137.016 & 137.115.5, RSMo.

The argument seeks to divide property owners into two different classes under the Constitution and statutes – those who were given notice under §137.115.11 and those who were not given notice under §137.115.11.This is not the result of the Decision.Property owners who received a notice were not denied rights established by the statute.Property owners who did not receive a notice were denied rights established by the statute.Property owners who did not receive notice were denied rights established by the statute and the remedy for those taxpayers is that they prevail in their appeal.§138.060.1, RSMo.This does not establish different classes of taxpayers for assessment purposes or different classes of property.

However even assuming some validity to Respondent’s argument, the cases cited by Respondent in support of his claim miss the mark.Furthermore, Missouri case law negates it.

“When considering claims that a law violates the Equal Protection Clause, the first step is to determine whether the statutory scheme ‘operates to disadvantage some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution.’If so, the statutory scheme receives strict judicial scrutiny to determine whether the classification is necessary to accomplish a compelling state interest.If the classification neither burdens a suspect class, no impinges upon a fundamental right, the only issue is whether the classification is rationally related to a legitimate state interest.The burden is on the person attacking the classification to show that it does not rest upon any reasonable basis and is purely arbitrary.Under this analysis a classification is constitutional if any state of facts can be reasonably conceived that would justify it.Missourians for Tax Justice Education Project v. Holden, 959 SW 2d 100, 103 (Sup.Ct. 1997) (citations omitted and emphasis added).

 

Respondent is challenging the provisions of §§137.115.11 and 138.060.1.Under the ruling cited, the argument fails to establish any constitutional deficiency in the statutes.The

properties which are the subjects of the Decision are all classified as residential real property.The Decision does not create a new classification within subclass 1 property.

In Respondent’s uniformity and equal protection argument he confuses procedure with substance.The challenged statutes contain a provision for notice and the results to follow if the Respondent fails to establish compliance with §137.115.11.The statutes which Respondent claims to be in violation of the uniformity and equal protection clauses in no way changes the method of valuation for the subject properties, nor do they place them in a different class for assessment purposes.

Notice is an inherent part of the assessment process.In a case involving failure of a county Board of Equalization to give notice of an increase in value to a taxpayer, the court said:

“The rule … that procedural requirements as enunciated by the Legislature before administrative agencies must be strictly complied with, should apply with equal force to legislative requirements imposed upon county boards of equalization.Such boards are statutory tribunals and derive their jurisdiction, powers and duties from the statutes. The legislature … place the mandatory (shall) duty upon the Board of Equalization to give the plaintiff the notice and that such notice was to contain certain specific facts and information.The Supreme Court … declared such notice to be jurisdictional.It is neither logical nor morally justifiable that such a state agency be permitted to disregard such definite legislative directions and still retain any defense to an action to correct is void revaluation order, either upon the theory of governmental immunity or failure of plaintiff to exhaust administrative remedies.”(citations omitted)McGraw-Edison Company v. Curry, 485 S.W.2d 175, 180 (Mo. App. 1972).

 

The Missouri Supreme Court, in a case involving failure of an assessor to give notice of an assessment increase, cited the McGraw-Edison case approvingly, and added:

“Where, as here, the failure to give notice of the increased assessment prevents the taxpayer from pursuing his administrative remedies, the increased assessment made by the assessor is void and, consequently, so is the tax computed thereon ….”John Calvin Manor, Inc. v. Aylward, 517 S.W.2d 59, 65 (Sup. Ct. 1974).

 

The Court continued to adhere to this line of reasoning in a later case, stating:

“As is obvious from the previous discussion of the effect of an assessor’s failure to provide the taxpayer with notice of increased valuation, an increase without notice is invalid … .”Crest Communications v. Kuehle, 754 S.W. 2d 563, 567 (Sup. Ct. 1988).

 

In the words of the Court, it is “neither logical nor morally justified” for Respondent to contend that the notice required here differs somehow from the notice in the cited cases.Notice is notice and any assessment made without a required notice is invalid.The Hearing Officer properly found this in the Decision.

Finally, Respondent’s assertion of a “windfall” for Complainants is without merit.The record is clear.Respondent failed to establish he had complied with §137.115.11 as required by §138.060.1, even after he was given the opportunity to do so by Order of the Hearing Officer.Therefore, the 2003 assessments were invalid. The fact that the taxpayers’ properties were to be assessed and taxed at the 2002 assessment level is no different than the situation where an assessor fails to give the required notice of increased assessment.The assessment is void.See, McGraw-Edison, John Calvin Manor & Crest Communications, supra.There is no basis upon which the Hearing Officer could have or should have ignored the clear mandate of the applicable law and ruled against Complainants simply because a taxation benefit would accrue for the 2003-04 assessment cycle.

Conclusion

The Points raised by Respondent are not well taken.The Hearing Officer did not err in finding the provisions of Sections 137.115.11 and 138.060.1, RSMo were mandatory upon the Respondent.The Hearing Officer’s Decision was neither arbitrary nor capricious, but rather a

proper application of the law to the facts in the record.The Decision does not violate either the uniformity or equal protection clauses of the Missouri or the United States Constitution.

ORDER

The Commission upon review of the record and Decision in this appeal, finds no grounds upon which the Decision of the Hearing Officer should be reversed or modified.Accordingly, the Decision is affirmed.

Judicial review of this Order may be had in the manner provided in Sections 138.432 and 536.100 to 536.140, RSMo within thirty days of the date of the mailing of this Order.

If judicial review of this decision is made, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the courts.If no judicial review is made within thirty (30) days, this decision and order is deemed final and the Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.The Commission will advise the Collector by appropriate order whether or not a petition for judicial review is timely filed.

If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, Complainants may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.

SO ORDERED April 22, 2008.

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Jennifer Tidwell, Commissioner

Charles Nordwald, Commissioner

 

 

 

 

 

ORDER DENYING

RESPONDENT’S MOTION TO SET ASIDE HEARING OFFICER’S DECISION

AND

MOTION FOR LEAVE TO SUBMIT EVIDENCE OUT OF TIME

 

On January 15, 2008, Senior Hearing Officer W. B. Tichenor entered his Decision and Order (Decision) affirming in part and setting aside in part the assessments by the St. Louis County Board of Equalization.

On February 11, 2008, Respondent filed his Motion to Set Aside Hearing Officer’s Decision and Order and Motion for Leave to Submit Evidence Out of Time.

By Order dated, February 14, 2008, Complainants were given until and including

March 3, 2008, to file Response to Motion to Set Aside and Motion for Leave.

On February 25, 2008, Complainants’ Opposition to Respondent’s Motion to Set Aside Hearing Officer’s Decision and Order and Motion for Leave to Submit Evidence Out of Time.

On March 3, 2008, Respondent filed his Reply Memorandum.

On March 4, 2008, Complainants filed their Response to Reply Memorandum.

Procedural History

1.                  On August 27, 2007, Complainants made filing with the Commission limiting the issue in these appeals to the question of notice in compliance with Section 137.115, RSMo.

2.                  By Order dated September 24, 2007, Complainants’ Limitation of Issue was taken under advisement by Senior Hearing Officer, W. B. Tichenor.

3.                  By Order dated October 19, 2007, Respondent was given until December 3, 2007, “to file exhibits to establish prima facie: (1) the manner in which the physical inspection on each of the subject properties was performed; and (2) that the physical inspection on each of the subject properties was performed in accordance with section 137.115, RSMo.”

4.                  Respondent did not, on or before December 3, 2007, comply with the October 19, 2007 Order, as so found in the Decision, p. 4, Findings of Fact 4.

RULING

Respondent’s Motion to Set Aside the Hearing Officer’s Decision is denied.Respondent’s Motion for Leave to Submit Evidence Out of Time is denied.

Respondent provided no citation to court rule, statute or case law as a basis for his Motions.The reference by Respondent to Section 138.432, RSMo relating to an Application for Review is not applicable to these motions.Respondent has filed an Application for Review which is pending before the Commission.Complainants have until and including March 17, 2008, to file their Response to the Application for Review.There was no allegation by Respondent of error on the part of the Hearing Officer relative to the entry of his Decision that would form a basis for setting aside the Decision and granting leave to file evidence out of time.

The Decision entered by Hearing Officer Tichenor was in the nature of a default judgment in these appeals.Respondent failed to timely respond to the Order of the Hearing Officer, which resulted in the issuance of the Decision of January 15, 2008.

Respondent was given forty-five (45) days to comply with the October 19, 2007, Order.Forty-three (43) days after the December 3, 2007, deadline, the Hearing Officer’s Decision was issued.Respondent had nearly three months to either comply or respond in some manner to the Order of October 19, 2007.Notwithstanding this extended time frame, Respondent then waited an additional twenty-six days before filing the two motions which are the subject of this Order.

The only rationale put forth by Respondent in explanation for this pattern of neglect and inattention was, “Unfortunately, due in part to miscommunication within the Office of the County Counselor, Respondent’s documents were not conveyed to the Hearing Officer prior to the deadline of December 3, 2007.”Motion, page 3.The Order of October 19, 2007, was mailed to Respondent’s Counsel, Edward Corrigan, and Respondent.Both Respondent and Counsel knew of the December 3, 2007, deadline.Both had a responsibility to see that compliance with the Order was forthcoming by the stated deadline.

The holding of the Court in Sprung v. Negwer Materials, Inc., 775 S.W.2d 97 (MoSCt, 1989), addressing Court Rule 74.05(d) relating to an entry of default judgment provides guidance to the Commission regarding the pending motions.

“The Court in Sprung I (727 S.W.2d 883, 889) unequivocally enunciated the criteria, at least in the context of an independent action in equity, for determining “good reason or excuse”. Adopting the language contained in Hamm v. Hamm, 437 S.W.2d 449, 453 (Mo. App. 1969), the court declared that “good reason or excuse” exists when the default occurs “by reason of accident, mistake, inadvertence, mischance or unavoidable circumstances unmixed with neglect or inattention….” (emphasis in original). See also Patterson v. Fitzgibbon Discount Corporation, 339 S.W.2d 301, 306 (Mo. App. 1960).”

 

The reason advanced by Respondent for failing to comply with the Order of the Hearing Officer and to “to file exhibits to establish prima facie: (1) the manner in which the physical inspection on each of the subject properties was performed; and (2) that the physical inspection on each of the subject properties was performed in accordance with section 137.115, RSMo.” is nothing more or less than neglect and inattention.For both Respondent’s Counsel and Respondent to fail to comply with the Order is not “accident, mistake, inadvertence, mischance or unavoidable circumstances.”The failure to comply in this instance is plain and simple neglect and inattention.Therefore, the excuse given does not meet the criteria of good reason or good excuse which would support granting the Motion to Set Aside or the Motion for Leave.

Therefore, both of Respondent’s Motions are denied.The Commission will act upon the Application for Review after receipt of Complainants’ Response.

SO ORDERED March 25, 2008.

 

STATE TAX COMMISSION OF MISSOURI

Bruce E. Davis, Chairman

Jennifer Tidwell, Commissioner

Charles Nordwald, Commissioner

 

 

DECISION AND ORDER

 

HOLDING

 

Decisions of the St. Louis County Board of Equalization are AFFIRMED in part and SET ASIDE in part.The Commission finds the 2001 – 02 assessment cycle values set forth in the Findings of Fact for specified properties must be applied to those properties for the 2003 – 04 assessment cycle.

Complainants appeared by Counsels David G. Dempsey and Wayne A. Tenenbaum.

Respondent appeared by Counsel, Edward W. Corrigan, Associate County Counselor.

Decision and Order written by Senior Hearing Officer W. B. Tichenor.

ISSUE

The Commission takes these appeals to determine the true value in money to be set for the 2003 – 04 assessment cycle under the provisions of Sections 137.115 and 138.060 ,RSMo.

FINDINGS OF FACT

The Commission finds relevant facts as follows:

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

2.Grounds for Appeal.All of the Complaints for Review of Assessment were received on September 10, 2003.All of the properties under appeal are subclass (1) property (residential) under Section 4(b), Article X, Mo. Constitution.Each of the Complaints had the boxes for Overvaluation and Discrimination marked as grounds for Appeal, following the word – Discrimination, the typed phrase – See attached statement – appears.Cover letters from

Complainants’ Counsel – David G. Dempsey – were submitted with all of the appeals.The cover letters contained the following statement:

“I am enclosing a detailed statement of the complainants’ grounds for their claim of discrimination which statement is hereby adopted as part of each of the appeals enclosed with this letter.”

 

The attached and incorporated by reference statement included the following item:

8) Section 137.115, subsection 11, which requires that all residential property owners receiving an assessment increase of more than 15% be given a written notice of such increase and allowing for a 30 day period to request an interior inspection as part of the physical inspection of the residence.”

 

All of the appeals were filed on the ground of failure of the Assessor to give a written notice under Section 137.115 and that issue is properly before the Commission with regard to these appeals.

3.Limitation of Issues.On August 27, 2007, Complainants’ Counsel Tenenbaum filed his Limitation of Issues on the present appeals, removing the ground of Discrimination, but preserving the appeals on the issue of notice under Sections 137.115 and 138.060.By Order dated September 24, 2007, Hearing Officer Tichenor took under advisement Complainants’ Limitation of Issue.By Order dated October 19, 2007, Respondent was given until and including December 3, 2007, to file exhibits and serve copy of same upon Complainants’ Counsel to establish prima facie:

(1) the manner in which the physical inspection on each of the subject properties was performed; and

 

(2) that the physical inspection on each of the subject properties was performed in accordance with section 137.115, RSMo.

 

4.No Evidence of Physical Inspection.Respondent did not, on or before

December 3, 2007, file exhibits to establish the manner in which the physical inspection on each of the subject properties was performed, and that the physical inspection on each of the subject properties was performed in accordance with Section 137.115, RSMo.The Assessor failed to provide sufficient evidence to establish that the physical inspection was performed in accordance with Section 137.115, RSMo, as required by Section 138.060, RSMo.Respondent did not at any time during the time these appeals have been pending challenged or refuted the claim of Complainants relative to the Section 137.115 notice.

5.Percentage Increases in Assessed Values from 2001-02 to 2003-04 for Properties Under Appeal.Hearing Officer Tichenor investigated the assessment records via St. Louis County Assessor’s Real Estate Information website on all of the properties under appeal for the 2001-02 and 2003-04 assessment cycles.The Hearing Officer inquired of the Assessor’s staff as to appraised and assessed values on certain of the Canyon Apartment and Oak Tree Apartment properties, which did not have 2001-02 data on the Assessor’s website. §138.430.2, RSMo.The Commission concludes the following with regard to the properties under appeal.

A.03-10379 – Baldridge: Locator No. 20N430437 – 21.2% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,114,330 was the Assessor’s appraised value for the property for the 2001-02 cycle.

B.03-10385 – AHC, LC:Locator No. 13L221352 – 17% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,920,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

C.03-10387 – Wiemann:Locator No. 19K230193 – 40.4% increase in assessed value from the 2001-02 to the 2003-04 cycle, $277,200 was the Assessor’s appraised value for the property for the 2001-02 cycle.

D.03-10388 – Wiemann:Locator No. 19K230214 – 47.2% increase in assessed value from the 2001-02 to the 2003-04 cycle, $245,300 was the Assessor’s appraised value for the property for the 2001-02 cycle.

E.03-10396 – Lampert:Locator No. 19O640158 – 80.1% increase in assessed value from the 2001-02 to the 2003-04 cycle, $331,870 was the Assessor’s appraised value for the property for the 2001-02 cycle.

F.03-10398 – 402 S. Brentwood LLC:Locator No. 19K611002 – 18.8% increase in assessed value from the 2001-02 to the 2003-04 cycle, $483,500 was the Assessor’s appraised value for the property for the 2001-02 cycle.

G.03-10400 – Fleisher: Locator No. 19O640093 – 47.7% increase in assessed value from the 2001-02 to the 2003-04 cycle, $410,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

H.03-10403 – Warson Village:Locator No. 16M220090 – 19.6% increase in assessed value from the 2001-02 to the 2003-04 cycle, $6,551,100 was the Assessor’s appraised value for the property for the 2001-02 cycle.

I.03-10404 – Razzaque:Locator No. 19M140122 – 19.6% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,058,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

J.03-10406 – Yalkeman:Locator No. 20L640074 – 48.8% increase in assessed value from the 2001-02 to the 2003-04 cycle, $210,310 was the Assessor’s appraised value for the property for the 2001-02 cycle.

K. 03-10407 – Stanford Apts:Locator No. 21L340720 (2003); 21L340913 (2004) – 1.4% increase in assessed value from the 2001-02 to the 2003-04 cycle.

L.03-10408 – Stanford Apts:Locator No. 21L340023 – 4.9% increase in assessed value from the 2001-02 to the 2003-04 cycle.

M.03-10409 – Stanford Apts:Locator No. 21L340784 – 8.9% increase in assessed value from the 2001-02 to the 2003-04 cycle.

N.03-10410 – Stanford Apts:Locator No. 21L340793 – 17.3% increase in assessed value from the 2001-02 to the 2003-04 cycle, $988,200 was the Assessor’s appraised value for the property for the 2001-02 cycle.

O.03-10411 – Stanford Apts:Locator No. 21L340061 – 23.3% increase in assessed value from the 2001-02 to the 2003-04 cycle, $506,900 was the Assessor’s appraised value for the property for the 2001-02 cycle.

P.03-10412 – Stanford Apts:Locator No. 21L340083 – 17.3% increase in assessed value from the 2001-02 to the 2003-04 cycle, $533,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

Q.03-10413 – Suburban Partners:Locator No. 21K240344 – 21.6% increase in assessed value from the 2001-02 to the 2003-04 cycle, $2,213,600 was the Assessor’s appraised value for the property for the 2001-02 cycle.

R.03-10414 – Follman:Locator No. 18K520767 – 32.7% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,058,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

S.03-10419 – Moulton LP:Locator No. 12L210670 – 16.7% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,381,300 was the Assessor’s appraised value for the 2001-02 cycle.

T.03-10420 – Moulton LP:Locator No. 12L120104 – 16.7% increase in assessed value from the 2001-02 to the 2003-04 cycle, $724,100 was the Assessor’s appraised value for the property for the 2001-02 cycle.

U.03-10421 – Chaz Paree LP:Locator No. 09K530746 – 22% increase in assessed value from the 2001-02 to the 2003-04 cycle, $3,904,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

V.03-10422 – Chaz Paree LP:Locator No. 08K220183 – 16.6% increase in assessed value from the 2001-02 to the 2003-04 cycle, $3,660,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

W.03-10423 – Chaz Paree LP:Locator No. 08K220017 – 22.8% increase in assessed value from the 2001-02 to the 2003-04 cycle, $2,745,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

X.03-10424 – Chaz Paree LP:Locator No. 08K210360 – 21.5% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,708,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

Y.03-10425 – Aspen Woods LP:Locator No. 07H140408 – 22.2% increase in assessed value from the 2001-02 to the 2003-04 cycle, $8,354,500 was the Assessor’s appraised value for this parcel for the 2001-02 cycle.

Z.03-10426 – Aspen Woods LP:Locator No. 07H231634 – 19.7% increase in assessed value from the 2001-02 to the 2003-04 cycle, $2,766,400 was the Assessor’s appraised value for this parcel for the 2001-02 cycle.

AA.03-10427 – Canyon Apts LLC:Locator No. 30K230354 – 0% increase in assessed value from the 2001-02 to the 2003-04 cycle.

BB.03-10428 – Canyon Apts LLC:Locator No. 30K230318 (2003) – 14.7% increase in assessed value from the 2001-02 to the 2003-04 cycle.

CC.03-10429 – Canyon Apts LLC:Locator No. 30K230271 – 14.2% increase in assessed value from the 2001-02 to the 2003-04 cycle.

DD.03-10430 – Canyon Apts LLC:Locator No. 30K230336 – 2.8% increase in assessed value from the 2001-02 to the 2003-04 cycle.

EE.03-10431 – Canyon Apts LLC:Locator No. 30K230291 – 10.5% increase in assessed value from the 2001-02 to the 2003-04 cycle.

FF.03-10432 – Canyon Apts LLC:Locator No. 30K230226 – 10.8% increase in assessed value from the 2001-02 to the 2003-04 cycle.

GG.03-10433 – Canyon Apts LLC:Locator No. 30K230253 – 1% decrease in assessed value from the 2001-02 to the 2003-04 cycle.

HH.03-10434 – Canyon Apts LLC:Locator No. 30K230244 – 19.6% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,496,200 was the Assessor’s appraised value for this parcel for the 2001-02 cycle.

II.03-10435 – Armstrong LLC:Locator No. 09J121042 – 24.7% increase in assessed value from the 2001-02 to the 2003-04 cycle, $898,600 was the Assessor’s appraised value for this parcel for the 2001-02 cycle.

JJ.03-10436 – Armstrong LLC: Locator No. 10K640872 – 64.7% increase in assessed value from the 2001-02 to the 2003-04 cycle, $918,.300 was the appraised value for this parcel for the 2001-02 cycle.

KK.03-10437 – Armstrong LLC:Locator No. 09J111021 – 20.9% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,053,000 was the Assessor’s appraised value for this parcel for the 2001-02 cycle.

LL.03-10438 – Willowbend LLC:Locator No.20R620162 – 23.2% increase in assessed value from the 2001-02 to the 2003-04 cycle, $9,158,900 was the Assessor’s appraised value for the property for the 2001-02 cycle.

MM.03-10441 – Sugar Pines LLC:Locator No. 09G120199 – 59.5% increase in assessed value from the 2001-02 to the 2003-04 cycle, $8,400,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

NN.03-10443 – Lipton Prop.: Locator No. 12G610120 – 16.8% increase in assessed value from the 2001-02 to the 2003-04 cycle, $2,174,390 was the Assessor’s appraised value for the property for the 2001-02 cycle.

OO.03-10444 – Lipton Prop.:Locator No. 12G640040 – 5.7% increase in assessed value from the 2001-02 to the 2003-04 cycle.

PP.03-10445 – Lipton Prop.:Locator No. 12G640040 – 5.7% increase in assessed value from the 2001-02 to the 2003-04 cycle.

QQ.03-10446 – Lipton Prop.:Locator No. 12G620680 – -1.2% decrease in assessed value from the 2001-02 to the 2003-04 cycle.

RR.03-10447 – Westport LLC: Locator No. 13N220535 – 19.8% increase in assessed value from the 2001-02 to the 2003-04 cycle, $6,058,300 was the Assessor’s appraised value for this parcel for the 2001-02 cycle.

SS.03-10449 – Kaiser LLC:Locator No. 19J131138 – 29.5% increase in assessed value from the 2001-02 to the 2003-04 cycle, $878,200 was the Assessor’s appraised value for the property for the 2001-02 cycle.

TT.03-10451 – Katz:Locator No. 19J121030 – 23.6% increase in assessed value from the 2001-02 to the 2003-04 cycle, $844,700 was the Assessor’s appraised value for the property for the 2001-02 cycle.

UU.03-10513 – 9315 Koenig Circle LLC: Locator No. 13J410114 – 94.9% increase in assessed value from the 2001-02 to the 2003-04 cycle, $264,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

VV.03-10514 – 9315 Koenig Circle LLC: Locator No. 13K340643 – 85.8% increase in assessed value from the 2001-02 to the 2003-04 cycle, $264,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

WW.03-10515 – 9315 Koenig Circle LLC: Locator No. 13J130441 – 92.6% increase in assessed value from the 2001-02 to the 2003-04 cycle, $352,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

XX.03-10516 – 9315 Koenig Circle LLC: Locator No. 13K620015 – 98.4% increase in assessed value from the 2001-02 to the 2003-04 cycle, $352,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

YY.03-10517 – 9315 Koenig Circle LLC: Locator No. 13J410026 – 97.8% increase in assessed value from the 2001-02 to the 2003-04 cycle, $792,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

ZZ.03-10526 – Oak Tree LP:Locator No. 16L530697 – 38% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,370,500 was the Assessor’s appraised value for the property for the 2001-02 cycle.

AAA.03-10527 – Oak Tree LP:Locator No. 15L211924 – 29.9% increase in assessed value from the 2001-02 to the 2003-04 cycle, $1,015,000 was the Assessor’s appraised value for the property for the 2001-02 cycle.

BBB.03-10528 – Oak Tree LP: Locator No. 15L220045 – 0% increase in assessed value from the 2001-02 to the 2003-04 cycle, 8,500 was the Assessor’s appraised value for the property for the 2001-02 cycle.

CCC.03-10749 – Fieser Inc.: Locator No. 28N111211 – 18.2% increase in assessed value from the 2001-02 to the 2003-04 cycle, $996,400 was the Assessor’s appraised value for the property for the 2001-02 cycle.

DDD.03-10750 – Follman:Locator No. 18J141400 – 62.1% increase in assessed value from the 2001-02 to the 2003-04 cycle, $411,690 was the Assessor’s appraised value for the property for the 2001-02 cycle.

6.Properties Increased 15% or Less.The following properties were increased from the 2001-02 to the 2003-04 cycle 15% or less and therefore do not come under the provisions of Sections 137.115 and 138.060, RSMo.The assessed values as set by the Board are affirmed.

 

7.Properties Increased More Than 15%. The following properties were increased from the 2001-02 to the 2003-04 cycle more than 15% and therefore come under the provisions of Sections 137.115 and 138.060, RSMo.The Assessor’s appraised values for the 2001-02 assessment cycle are set as the true values in money for the properties.The properties are assessed at the values set forth:

 

 

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

Section 137.115.10, RSMo – Requirement of Physical Inspection

Section 137.115.10, RSMo, 2006 Cum. Supp. (A.L. 2002 H.B. 1150, et al) establishes that: “Before the assessor may increase the assessed valuation of any parcel of subclass (1) real property by more than fifteen percent since the last assessment, excluding increases due to new construction or improvements, the assessor shall conduct a physical inspection of such property.”

No evidence was presented establishing that the Respondent complied with this provision of the statutes.In the absence of any such evidence the conclusion to be reached is that there was no compliance, otherwise Respondent would have submitted evidence to establish compliance.

Section 137.115.11, RSMo – Notice Regarding Physical Inspection

Section 137.115.11, RSMo, 2006 Cum. Supp. (A.L. 2002 H.B. 1150, et al) requires in those instances where a physical inspection is required under 137.115.10 (more than 15% increase in residential assessed value since last assessment), the assessor is required to (1) notify the property owner in writing of the fact of the physical inspection being required, and (2)

provide the owner with clear written notice of the owner’s rights relating to the physical inspection.

No evidence was presented establishing that the Respondent complied with this provision of the statutes.In the absence of any such evidence the conclusion to be reached is that there was no compliance, otherwise Respondent would have submitted evidence to establish compliance.

Section 138.060, RSMo – Assessor’s Burden of Proof on Physical Inspection

Section 138.060, RSMo, 2006 Cum. Supp. (A.L. 2002 H.B. 1150, et al) provides in relevant part, that in St. Louis County, “… in the event a physical inspection of the subject property is required by subsection 10 of Section 137.115, RSMo, the assessor shall have the burden to establish the manner in which the physical inspection was performed and shall have the burden to prove that the physical inspection was performed in accordance with Section 137.115, RSMo.….”

Properties Under Appeal

There are two different groups of properties involved in these appeals.

Properties Not Increased by More than 15%

The first group of properties is those properties for which the increase in assessed value from the 2001-02 assessment cycle to the 2003-04 cycle was not more than 15%.These properties are set forth in Finding of Fact 6.Since the assessment of these properties did not come under the provisions of Section 137.115.10 & 11, the mandate of Section 138.060 that the owner prevails as a matter of law is not applicable.Therefore, the assessed values as sustained by the Board of Equalization and set forth in Finding of Fact 6 must be affirmed for these properties.

Properties Increased by More Than 15%

The second group of properties is those properties for which the increase in assessed value from the 2001-02 assessment cycle to the 2003-04 cycle was more than 15%.These properties are set forth in Finding of Fact 7.Each of the properties as set out in Finding of Fact 7 was increased in the 2003-04 assessment cycle by more than 15% over the assessed values set by the 2001-02 cycle.This triggered the notice requirement of subsections 10 and 11 of Section 137.115.

The Commission finds that notice is a function of due process.By creating a notice requirement, the legislature is saying that property owners have a due process right to notice prior to a substantial (more than 15%) increase in their assessment.The sanction to be imposed for failure to give the property owners this due process right is that the property owners do not suffer an increase in their assessed value.The Commission concludes that since the property owners are already on notice of their prior (2001-02 cycle) assessment, failure to give notice of increase for the 2003-04 cycle cannot impact the 2001-02 value.Therefore, the 2001-02 residential assessed values for those properties set forth in Finding of Fact 7 remain as the assessed values for the 2003-04 assessment cycle.

ORDER

A.Board Affirmed – Increases 15% or less.The assessed valuations by the Board of Equalization for St. Louis County for the subject tax day are AFFIRMED for the properties listed in Finding of Fact 6, supra and the assessed values for tax years 2003 and 2004 are as set forth in Finding of Fact 6.

B.Board Set Aside – Increases more than 15%.The assessed valuations by the Board of Equalization for St. Louis County for the subject tax day are SET ASIDE for the properties listed in Finding of Fact 7 supra.The assessed values for these properties for tax years 2003 and 2004 are as set forth in Finding of Fact 7.

A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision.The application shall contain specific grounds upon which it is claimed the decision is erroneous.Failure to state specific facts or law upon which the appeal is based will result in summary denial.Section 138.432, RSMo 2000.

If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission and an order to the Collector to release and disburse the impounded taxes.§139.031.3, RSMo.If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal.If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.

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 January 15, 2008.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Senior Hearing Officer