Kenneth & Carole Token v. Overschmidt (Franklin)

KENNETH & CAROLE TOKEN, )

)

Complainants, )

)

v. ) Appeal Number 03-57007, 03-57008

& 03-57009

)

BILL OVERSCHMIDT, ASSESSOR, )

FRANKLIN COUNTY, MISSOURI, )

)

Respondent. )

 

 

DECISION AND ORDER

HOLDING

Decision of the Franklin County Board of Equalization sustaining the assessment made by the Assessor, SET ASIDE, Hearing Officer finds true value in money for the subject properties for tax years 2003 and 2004 to be as follows:

Complainant, Kenneth Token, appeared pro se.

Respondent appeared by Counsel, Mark Vincent, County Counselor.

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

ISSUE

The Commission takes these appeals to determine whether portions of the subject properties should be given agricultural grading and assessed at 12% of the appropriate agricultural use value, or whether certain portions of the subject properties should be valued at their fair market value as vacant and unused agricultural land and assessed at 12% of the fair market value?

SUMMARY

Complainants appeal the decision of the Franklin County Board of Equalization which sustained the valuation and classification of the subject property. The Assessor valued a portion of the property as residential and the remainder as vacant and unused agricultural land, instead of agricultural graded land. Complainant did not challenge the valuation of the residential portion of the subject property as it related to the residence and the homesite as had been assessed in 2002, but challenged assessing the remainder as vacant and unused agricultural land and proposed the land be valued according to agricultural grades in existence in 2002 and assessed accordingly. A hearing was conducted on November 13, 2003, at the Franklin County North Annex Building, Union, Missouri.

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

Complainants= Evidence

Mr. Token appeared and testified in his own behalf. The following exhibits were received into evidence in support of Complainants= case.

Exhibit A    A chronology of activity on the subject property – Grand Ridge Farm.

Exhibit B    Mr. Token=s written presentation as to relevant information relating to the use of Grand Ridge Farm.

Exhibit C    Three brochures on agroforestry.

(1) Grow Native, published by the Missouri Department of Conservation.

(2) Marketing Specialty Forest Products, Scott J. Josiah, University of Nebraska-Lincoln.

(3) Productive Conservation, Scott J. Josiah, University of Nebraska-Lincoln.

Exhibit D    Photographs of portions of Grand Ridge Farm.

Mr. Token=s argument that Grand Ridge Farm should be returned to agricultural grading as it was in the 2001-02 assessment cycle is grounded in the following points: (1) when Complainants purchased the Farm it was agricultural graded land; (2) Grand Ridge Farm is surrounded by properties that are indistinguishable in appearance from the subject tracts and these surrounding and adjoining properties are classified as agricultural graded land; (3) Complainants have made investments in the Farm which are directed toward agricultural activity; and (4) Complainants have increased the agricultural activity on the Farm.

Respondent=s Evidence

Respondent placed into evidence the testimony of Ms. Lori Rae Ruby, appraiser for Franklin County. The appraiser testified as to her appraisal of the land for the subject properties. The Appraisal Report, Exhibit 1, of Ms. Ruby was received into evidence. Exhibit 1 was offered to support the valuations determined by the Assessor and sustained by the Board.

The property record cards on the subject properties for 2002, at the request of the Hearing Officer, were received into evidence as Exhibit 2. These property record cards are identified as follows:

2A 2002    Property Record Card for the property in Appeal No. 03-57007.

2B 2002    Property Record Card for the property in Appeal No. 03-57008.

2C 2002    Property Record Card for the property in Appeal No. 03-57009.

FINDINGS OF FACT

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

2. The subject properties in each appeal are located at 949 Grand Ridge Drive in an unincorporated area of Franklin County. Combined the properties constitute a contiguous tract of land comprising 39.4 acres of land. The land is zoned under the zoning ordinances of Franklin County as Agricultural Non Urban.

3. Appeal No. 03-57007: The tract in appeal 03-57007 (Lot 1) consists of 9.6 acres of land. It is identified by parcel number 08-5-21.0-0-003-012.000. Lot 1 is improved with a residential structure built in 1995. Complainants did not challenge the valuation of the residence and a one acre home site and its classification as residential. The fair market value assigned by the Assessor to the one acre homesite and residence for tax year 2003 was $235,725. The remaining 8.6 acres of Lot 1 were valued by the Assessor at $46,535 and assessed as residential land. Complainants challenge the residential classification of the 8.6 acres and the valuation at fair market value, instead of valuing under agricultural grades. In the 2001-02 assessment cycle the Assessor placed the 8.6 acres in agricultural grade 6 with a value of $1,290. Exhibit 2A.

4. Appeal No. 03-57008: The tract in appeal 03-57008 (Lot 2) consists of 9.5 acres of land. It is identified by parcel number 08-5-21.0-0-003-012.100. Lot 2 is unimproved and consists of meadow and forest. For 2003 the Assessor valued Lot 2 at $50,790 and assessed it at 12%, for an assessed value of $6,096. Complainants challenge the valuation at fair market value, instead of valuing under agricultural grades. In the 2001-02 assessment cycle the Assessor placed 7.5 acres in agricultural grade 6 with a value of $1,125. The remaining 2 acres were graded as agricultural grade 7 with a value of $150. The combined agricultural graded value for the tract in 2001-02 being $1,280. Exhibit 2B.

5. Appeal No. 03-57009: The tract in appeal 03-57009 (Lot 3) consists of 20.3 acres of land. It is identified by parcel number 08-5-21.0-0-003-012.200. Lot 3 is unimproved and consists of meadow and forest, with a lake of approximately 4 acres. Complainants challenge the valuation at fair market value, instead of valuing under agricultural grades. For 2003 the Assessor valued Lot 3 at $108,760 and assessed it at 12%, for an assessed value of $13,051. In the 2001-02 assessment cycle the Assessor placed 7.5 acres in agricultural grade 6 with a value of $1,125. The remaining 12.8 acres was graded as agricultural grade 7 with a value of $960. The combined agricultural graded value for the tract in 2001-02 being $2,090. Exhibit 2C.

6. Agricultural Grade 6 Land is generally unsuited for cultivation and limited largely to pasture and sparse woodland. Such land is of moderate to steep slopes (8-20%) and has sever erosion hazards present. 12 CSR 30-4.010(1)(F).

7. Agricultural Grade 7 Land is generally unsuited for cultivation and may have other severe limitations for grazing and forestry that cannot be corrected. Such land is of very steep slopes (over 15%) and has severe erosion potential and very shallow topsoil. 12 CSR 30-4.010(1)(G).

8. Forest land, whose cover is predominantly trees and other woody vegetation, of two or more acres in area, which if cleared and used for agricultural crops, would fall into land grades # 6 or #7 should be placed in land grade # 7. Forest land may or may not be in use for timber production, wildlife management, hunting, other outdoor recreation or similar uses. 12 CSR 30-4.010(2).

9. Thirty-eight and four tenths acres of the combined subject parcels fit within the agricultural grades of 6 or 7. Exhibits 2A, 2B and 2C.

10. Complainants did not offer any evidence as to the fair market value of the land comprising Grand Ridge Farm. The fair market value of the disputed land is as follows: (1) Appeal 03-57007 – $51,320; (2) Appeal 03-57008 – $50,790; and (3) Appeal 03-57009 – $108,760.

11. Complainants purchased the approximately 40 acre tract in October, 2001. In January 2002, Complainants began the development of various portions of the property for Agroforesty with native plants. Complainants= plan of utilization of the subject farm which was commenced in 2002 is to plant and grow native plants for commercial and residential landscaping and for medicinal purposes for the pharmaceutical industry, using the forest land, meadows and lake at Grand Ridge Farm. Plants, roots and seeds from native plants and other plants to be planted at Grand Ridge Farm will be sold to area nurseries, landscape contractors, and medicinal herb buyers. Mr. Token is registered with the Missouri Department of Conservation as a Professional Wholesale Grower under the Grow Native program. He has researched agroforestry and its potential use for Grand Ridge Farm. Exhibits A, B, C & Testimony of Mr. Token

12. Mr. Token had a horticultural survey completed. He cleared forest access routes and prepared planting sites. Approximately 250 plants were set out in 25 different sites on Grand Ridge Farm. Approximately 3 to 5 acres, plus the 5 acre lake have been developed for agroforestry activity at the current time. Areas of cleared land have been planted with native grasses in trial plantings. The agroforestry farming will never involve the utilization of the entirety of the approximately 38.4 acres for which Complainants are seeking agricultural grading. Exhibits B, D & Testimony of Mr. Token.

13. During 2002, Mr. Token expended approximately $2,600 for the purchase of machinery to implement his agroforestry development. He expended $200 for the purchase of seeds, roots, and plants. Approximately 600 man hours of labor were expended in preparing planting sites, planting of seeds, roots and plants, and in otherwise farming his agroforestry sites. Exhibits B, D & Testimony of Mr. Token.

14. During 2003, an additional $900 has been expended on seeds, roots and plants. Initial plans have been developed for a $2,000 greenhouse to be used for the growing of seedlings and plants for transplanting on Grand Ridge Farm. A total of approximately 750 man hours have been used to carry out agroforestry activities in 2003. Exhibits B, D & Testimony of Mr. Token.

15. The Missouri Department of Conservation promotes the growing of native plants and provides information and assistance as to development of land for growing and marketing native plants. Exhibit C, Grow Native brochure.

16. Mr. Token has investigated forestry programs of the Missouri Department of Conservation (MDC) and has been initially advised that his plans and objectives for native plant agroforestry are compatible with the Forest Stewardship Program. Mr. Token signed a Forest Stewardship Program Agreement with a representative of the Department of Conservation in September 2003. No MDC forestry or land conservation program was in place on Grand Ridge Farm as of January 1, 2003. Exhibit A & Testimony of Mr. Token.

17. The development and utilization of Grand Ridge Farm for agroforestry constitutes an agricultural use which requires the subject farm to be valued according to the appropriate agricultural grades as existed on the land for the 2001-02 assessment cycle.

 CONCLUSIONS OF LAW

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.

Board of Equalization Presumption

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958).

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 or classification determined by the Board, even if simply to sustain the value made by the Assessor (which is not presumed to be correct), or the classification made by the Assessor, is accepted as true only until and so long as there is no substantial evidence to the contrary.

Duty to Investigate

In order to investigate appeals filed with the Commission, the Hearing Officer has the duty to inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property. The Hearing Officer=s decision regarding the assessment or valuation of the property may be based solely upon its inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties. Section 138.430.2, RSMo.

Weight to be Given Evidence

The Hearing Officer is free to consider all pertinent facts and give them such weight as reasonably they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide. St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

Trier of Fact

The Hearing Officer as the trier of fact may consider the testimony of a witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances. St. Louis County v. Boatmen=s Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).

Complainants= Burden of Proof

In order to prevail, Complainants must present an opinion of the correct classification and grading and substantial and persuasive evidence that the proposed classification and grading is appropriate for the subject property on January 1, 2003. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897. Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). 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. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975). See also, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002).

Classification of Agricultural Land

All real property used for agricultural purposes and devoted primarily to the raising and harvesting of crops shall be classified as Agricultural and horticultural property and assessed at twelve percent (12%) of true value. Sections 137.016.1(2) & 137.115.5(2), RSMo.

For general assessment purposes, the true value in money of land which is in use as agricultural and horticultural property, shall be that value which such land has for agricultural or horticultural use. After it has been established that land is actually agricultural or horticultural property, and is being valued and assessed accordingly, the land shall remain in this category so long as the owner of the land continues to use the land for agricultural and horticultural purposes. Continuance of valuation and assessment for general property taxation shall depend upon continuance of the land being used as agricultural and horticultural property and not upon continuance in the same owner of title to the land. For general assessment purposes, the true value in money of vacant and unused land which is classified as agricultural and horticultural property shall be its fair market value. Section 137.017, RSMo.

DECISION

The decision in this case rests upon whether agroforestry is an agricultural use. This is a case of first impression for the Commission. No other similar appeal relative to the raising and harvesting of native or exotic plants for landscaping or herbal medicinal purposes has come before the Commission. However, if agroforestry is the raising and harvesting of crops then it is appropriate for land devoted to such use to be classified as agricultural land and valued according to agricultural grades established by Commission rule.

It is important to recognize and remember that Commission decisions are driven by the evidence in a given case. In other words, the essential facts developed in the record provide the basis upon which the decision must be rendered. Each decision may vary depending on the particular facts in a given case.

Specifically, the fact that Complainant is cultivating various plants on Grand Ridge Farm does not necessarily mean that another landowner, who just happens to have some of the same plants growing on his land, is automatically entitled to agricultural grading of that property. For example, the fact that a landowner has ginseng on a two-acre tract of land on which a residence is located does not require that a portion of that land be given an agricultural grade. That, of course, is not the situation in the present case.

There are a variety of factors which come into play as to whether the subject property is vacant and unused agricultural land or is being actively devoted to agricultural use. These are: (1) agroforesty as a category of agricultural use; (2) classification for the immediate prior assessment cycle; (3) activities of Complainant with regard to agroforestry prior to January 1, 2003; (4) activities of Complainant with regard to agroforestry subsequent to January 1, 2003; (5) extent of area devoted to and needed to support agroforestry at Grand Ridge Farm; and (6) topography of Grand Ridge Farm.

Agroforestry

The use of land for agroforestry, as being developed and practiced by Complainant on Grand Ridge, is a use of real property for agricultural purposes. Agroforesty can consist of the planting of trees, such as black walnut, spaced sufficiently apart so as to permit row cropping or

pasturing and haying operations in the area around and between rows of trees. The agroforestry being practiced by Complainants is of a different variety than this.

The fact that certain of the crops which are being cultivated and harvested are plants or roots which are native to the area does not alter the fact that the activities by Complainant constitute the raising and harvesting of crops. Nor does the fact that other plants Complainant has planted are what might otherwise be called exotic plants mean that the activity being conducted is not an agricultural activity. In some ways, the utilization of the subject tracts by Complainant is not unlike those instances where a farm that was devoted to the raising of cattle is changed to the raising of emu or ostrich. Except in this instance, Mr. Token is cultivating some plants which naturally grow within and on forested land, as opposed to more open areas. At the same time Mr. Token is working with development and utilization of open areas of Grand Ridge for the growing a native grasses for seed production.

The investment of time, energy and financial resources into the development of Grand Ridge Farm for agroforestry evidences a very serious committment by Complainant. This is not a landowner attempting to establish an agricultural use based simply upon the fact that some plants which might be used for medicinal, culinary or ornamental uses happen to exist on a tract of land. Agroforestry, in whatever variety of shapes it might take, is clearly the utilization of land for growing and harvesting crops. Thus, when established as Complainant has demonstrated, this factor weighs heavily against the subject tracts being vacant and unused agricultural land, and strongly on the side of an actual agricultural use.

Prior Classification

The matter of the prior classification of Grand Ridge Farm is important due to the fact that this is a clear indication that during the 2001-02 assessment cycle the subject tracts were recognized as appropriate for agricultural classification. There is no evidence on the record as to what the particular agricultural activity on Grand Ridge Farm was prior to the purchase by the Tokens. However, it was sufficient for the Assessor to value the land under the agricultural land use grades established by Commission rule.

The prior classification is also important due to the statutory requirement that once land as been established as actually agricultural property it is to remain in that catagory, so long as the land continues in an agricultural use. It is also important to recognize that a change in ownership cannot trigger taking land out of agricultural classification and assessing it as vacant and unsued agricultural land. It is the actual utilization of the land, not the ownership which is controlling. Therefore, the fact that the prior owner may have been utilizing the land under appeal for simply pasture or haying purposes does not mean that Complainant must continue that particular use of the land in order to continue to receive the benefit of agricultural grading of the land. It clearly appears from the fact that the entirety of the Grand Ridge Farm previously was placed in agricultural grades 6 and 7, except for the one acre homesite, that the agricultural use for the farm would be restricted to essentially pasturing or possibly haying on the non-timber acres.

The factor of the prior classification establishes the appropriate agricultural grades for the farm under agricultural use. It does not weigh either for or against a determination of the land being vacant and unused agricultural land or land that should be valued under agricultural grades. This is due to the fact that the prior classification as agricultural graded land does not estalbish the land use as of January 2003. It does however establish that if an agricultural use, even different from that in effect prior to the 2001 classification, existed as of January, 2003, then the agricultural grade classification is appropriate.

Pre-1/1/03 Activities

The activities of Mr. Token after his purchase of the Farm in late 2001 and through 2002 clearly evidence a desire and intent to develop and utilize his land for agroforestry. The range of activities go far beyond simply planting a wildflower garden, stocking a fishing pond with water lilies or creating feeding stations for deer and birds. Activities like these would not appear in any manner to qualify as the raising and harvesting of crops. If this were all that Complainant was doing a claim for agricultural use would be unfounded.

However, that is not the case. The labor and money put into the Farm for the cultivation of the various plants which Mr. Token seeks to develop under his agroforestry operation provide clear evidence of the plan and intention to utilize Grand Ridge Farm for this new and innovative method of agricultural use. It is obvious that the type of agroforestry which Complainant is fostering does not necessarily result in a harvest each growing season, as is the case when corn, wheat, beans, etc., are being cultivated and harvested. This, however, does not alter the fact that the cultivation of native plants under an agroforesty operation is anything less than an agricultural use.

Some of the work, such as clearing of trails into the wooded areas where native plants grow, is not direct cultivation. However, such activity is necessary in order to be able to cultivate and harvest crops. Clearing of forest areas for the better growing of native plants is likewise required to be able to increase the productivity of various of the native plants. Clearing of other areas as test plots for raising of native and ornamental grasses is part of the plans for future cultivation of Grand Ridge Farm. All of these steps taken pre-2003, evidence an agricultural use and preparation for continued agricultural use under an agroforestry operation.

Post-1/1/03 Activities

The additional activities conducted by Mr. Token during 2003 are important because they are further evidence of his committment to the enlargement of agroforestry at Grand Ridge. Even though these activities are after the tax date for the 2003 assessment cycle it is appropriate for consideration to be given to them. If, instead of continuing the agroforestry planning and production in 2003, Mr. Token had begun developing Grand Ridge Farm to be subdivided into one or two acre lots and had proceeded to sell off lots, this would be evidence of a non-agricultural use. Mr Token=s plans for the construction of a greenhouse for the raising of plants to be set out at Grand Ridge give further evidence of the continuation of an agricultural enterprise.

By being recognized as a professional wholesale grower under the MDC Grow Native program, Grand Ridge Farm is able to market native plants to retail nurseries, landscape contractors, and to medicinal herb buyers. This puts Mr. Token=s use of the land into a situation essentially the same as any other land owner who would utilize his farm for the growing and marketing of fruits and vegetables which might be sold at farmer=s markets, directly to groceries or wholesale suppliers. Therefore, the accumulation of the activity in furtherance of the goal of utilization of Grand Ridge for agroforestry gives additional weight to actual agricultural use which requires the land to be valued under the appropriate agricultural grades, instead of being assessed as vacant and unused agricultural land.

Forest Stewardship Program

The investigation by Mr. Token of the Forest Stewardship Program (FSP) with the Missouri Department of Conservation (MDC) is not conclusive as to agricultural use as of January, 2003, since Grand Ridge was not in enrolled in that program at that time. However, the evidence is clear that Mr. Token has pursued a course of action to attempt to utilize state conservation programs with reference to the timber areas of Grand Ridge. It appears that there is some level of misunderstanding between the parties relative to whether Grand Ridge would be reclassified as agricultural graded land if Mr. Token places qualifying acreage in the FSP. Mr. Token was under the impression that Grand Ridge would be reclassified as of January 1, 2004, as agricultural graded land, except for one acre which would be classified as residential, along with the Complainants= house. Mr. Token believes, based upon a letter dated April 17, 2003, that the FSP is a program that Respondent approves of for agricultural classification. The Assessor=s staff desires to see a complete formalized agreement relative to the FSP, rather than the document signed by Mr. Token and the MDC state forester for Franklin County in September, 2003. If, in point of fact, the September, 2003, agreement is all that is required by the MDC for the Grand Ridge timber acreage to be enrolled in the FSP, the appropriate documentation should be provided from MDC to Complainants and Respondent relative to this.

As Mr. Token proceeds to formalize and finalize the placing of the Grand Ridge timber land in the FSP prior to the end of 2003 or during 2004, this would appear to present an additional factor in favor of agricultural grading of the subject tracts. However, at this point the matter of how the Assessor may wish to treat the classification of Grand Ridge based upon the actual implementation of a FSP agreement between Complainants and the Department of Conservation is for the Assessor to address in his discretion. If in fact it is the policy of the Respondent to give agricultural grades to forest land or other lands that are in certain Department of Conservation programs, then it would be clear that Grand Ridge would have to be treated in the same manner as other tracts in Franklin County in this regard. In other words, if the Assessor=s policy is to give agricultural land grade values to forest land in MDC programs, then Grand Ridge would have to be afforded that same benefit.

Agroforestry Area

The next factor which needs to be examined relates to the area of Grand Ridge Farm which is be devoted to or has potential development for agroforestry. Across this state there are vast tracts of wooded acreage which are contiguous to open tracts of land devoted to agricultural use. Such forested acreage is graded as agricultural land. A given farm may be utilized for mainly row crop production of corn and beans and all of the adjoining timber land is agricultural grade land, irrespective of whether there is any plan for timber harvesting. Likewise a farm that is utilized for pasturing and haying will have all of its timber acreage valued as graded agricultural land, instead of assessing it as vacant and unused agricultural land.

The Commission has recognized since the early days of reassessment in the mid 1980’s that timber land that is a contiguous part of a farm is to be agricultural graded land. A large portion of Grand Ridge is forest land, predominately covered by timber. However, much of Complainants= agroforestry activity is carried out within the actual timber land. This is simply the utilization of forest land for an agricultural use different from timber harvesting.

The development and utilization of open spaces of Grand Ridge for seed production of native grasses is not dissimilar to a farm which is a haying or pasturing operation with adjoining wooded areas all of which are valued according to agricultural land grades. The Hearing Officer recognizes that this particular facet of Mr. Token=s agricultural operation has been in basically a testing or exploratory stage to determine what native grasses may prove to be the most appropriate for production at Grand Ridge. During the initial developmental stages in 2002 and 2003, most of Mr. Token=s activity has been directed toward utilization of the forest acreage for agroforestry. Additional cultivation of water plants in the lake and grasses in the open spaces cannot necessarily achieved over night. It does not appear that one can complete an agroforestry of the type contemplated by Mr. Token in a day, nor even in a single growing season.

The very nature of the type of agroforestry, water plant cultivation and native seed production which are in the infant stages at Grand Ridge result in an area of less than ten acres actually being under utilization in 2002 and 2003. However, this factor must be taken and understood within the overall context of what comprises Grand Ridge. A large portion of the acreage is dominated by woodland. There is a lake of approximately four acres. The open areas which might be considered as pasture or meadow land are not conducive to the production of row crops.

The Hearing Officer understands that at no time will the entirety of all the forest land at Grand Ridge be planted to ginsing, native ferms, shitake mushrooms, goldenseal, black cohosh, pickerel weed, or other medicinal or ornamental plants. Nor will every square foot of open, non-woodland space necessarily be sown to blue stem, Indian, buffalo, or other native grasses. Such an intensive level of activity is not required in order to establish an agricultural use. A farm of with some 20 acres of good pasture would easily support the grazing of a number of horses. The

fact that the land owner only grazes one or two horses will not result in a denial of agricultural grading for what is clearly an agricultural use.

As previously referenced, if all Mr. Token had done was to plant a few wild flowers in a flower garden around his house, or set out a water lily or two on his lake, the Hearing Officer would not consider that sufficient to establish the raising and harvesting of crops. However, Complainants have done much more than this. The area of Grand Ridge being utilized by Complanants for the particular type of agroforesty and raising of crops is sufficient to demonstrate a general agricultural use consistent with the type of land which comprises Grand Ridge.

The evidence is insufficient to establish that one can reasonably allocate certain acreas to agricultural use and other acreas to vacant and unused agricultural land. This would be no more practical or feasible to attempt than to allocate all timber land on Missouri farms to vacant and unused agricultural land, unless timber was being actively harvested. The actual agricultural use being carried out on Grand Ridge is of sufficient level to logically apply agricultural land grading to the entirety of the farm, except for a one acre residential tract, rather than attempt an arbitrary split-off between agricultural graded and vacant and unused agricultural land.

Topography

The final factor which the Hearing Officer has considered is the overall topograph of Grand Ridge. For this purpose, the Hearing Officer is using the word topograph to refer to the general lay of the land and its features. Although no topographical map or aerial photograph of Grand Ridge was offered into evidence, from Exhibits 1 and D, and the photographs contained therein and Exhibits 2A, 2B and 2C (agricultural land grades for each tract), a generally good idea of the lay of the land and its features can be determined.

Grand Ridge is generally hilly to rolling land. It is of sufficient slope that it not would be practical or advantageous to clear the timber and attempt to farm the land either by sowing pasture grasses or row crops. To do so would result in serious erosion issues. The soil types which support the forested areas would not be conducive to planting of generally recognized farm crops, however, native plants which grow in timber will be able to grow and thrive. The combination of the meadows, the lake and wooded acreage does not lend itself to any type of cultivated farming, other than those types of raising and harvesting of crops being developed by Mr. Token. Even attempts to row crop the open areas around the lake would create problems of erosion.

Grazing of livestock would appear to be an option for Grand Ridge, however, with the vast amount of woods, this option would not be greatly attractive to certain owners. Apparently, Mr. Token does not desire to run livestock at Grand Ridge. He is not required to do so in order to obtain agricultural land grading for the farm. Mr. Token has elected to pursue a land utilization which appears to conform to and be in harmony with the overall topograph of the 40 acres at Grand Ridge. The type and extent of the agroforestry and other agricultural operations conducted and planned may be the most suitable economic use for Grand Ridge, given the general topography. It is certain that Complainants are so convinced from the investment of time and money that has been and is planned to be invested in their farm to pursue agroforesty.

Conclusion

The agroforestry being developed on the subject lands constitutes raising and harvesting of crops. Grand Ridge Farm is not vacant and unused. Complainants are putting selected areas of their acreage to very specific agricultural uses which are compatable with the land. Given the evidence in this case, it is not necessary that the entirety of the acreage in dispute be under cultivation or agroforesty utilization. Since actual agricultural activity is being conducted on the subject lands, as opposed to simply letting the ground lie fallow, unattended, or unutilized in any crop raising and harvesting fashion, the acreage previously given agricultural grades in the immediate prior assessment cycle should continue as agricultural graded land. One acre which surrounds and upon which is located Complainants= home is to be classified as residential property, in accordance with the classification previously applied by the assessor and the valuation determined by the Assessor for 2003.

ORDER

The assessed valuations for the subject properties as determined by the Assessor and sustained by the Board of Equalization for Franklin County for the subject tax day are SET ASIDE.

The assessed value for the subject property in Appeal 03-57007 for tax years 2003 and 2004 is set at $44,945, ($44,790, as residential property and $155, as agricultural property, valued at agricultural grades).

The assessed value for the subject property in Appeal 03-57008 for tax years 2003 and 2004 is set at $154, as agricultural graded land.

The assessed value for the subject property in Appeal 03-57009 for tax years 2003 and 2004 is set at $251, as agricultural graded land.

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 1994.

If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with these appeals shall be held pending the final decision of the Commission. 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 Franklin 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 these appeals. 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 December 10, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer

ORDER NUNC PRO TUNC

The Decision and Order (Decision) issued December 10, 2003, upon review of the record and information from Respondent that the calculations shown on page 14 of Exhibit 1 did not clearly set forth that adjustments for the one acre home site and the neighborhood factor were to be made to the home site value and the extra feature value. The Hearing Officer had understood that said adjustments were included in amounts given for parcel 0852100003012.000 (Appeal 03-57007).

Accordingly, the Hearing Officer now corrects his Decision nunc pro tunc to correctly reflect the one acre home site adjustment and neighborhood factor adjustment, as follows:

1. On page 1 under HOLDING, for Appeal No. 03-57007 the figure $235,725 is stricken and the figure $240,660 is inserted in lieu thereof.

2. On page 1 under HOLDING, for Appeal No. 03-57007 the figure $44,790 is stricken and the figure $45,725 is inserted in lieu thereof.

3. On page 4 under FINDING OF FACT 3, in the fifth (5th) line, the figure $235,725 is stricken and the figure $240,660 is inserted in lieu thereof.

4. On page 22 under ORDER in the fifth (5th) line, the figure $44,945 is stricken and the figure $45,880 is inserted in lieu thereof.

5. On page 22 under ORDER in the fifth (5th) line, the figure $44,790 is stricken and the figure $45,725 is inserted in lieu thereof.

In all other respects the Decision and Order dated December 10, 2003, is ratified and affirmed, with the aforemade corrections.

SO ORDERED: December 19, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer