Richard & Nancy Kallaus v. Brooks (SLCO)

 

RICHARD & NANCY KALLAUS,)

)

Complainants,)

)

v.) Appeal Number 09-14684

)

MICHAEL BROOKS,)

ACTING 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 AFFIRMED.True value in money for the subject property for tax years 2009 and 2010 is set at $576,700, residential assessed value of $109,580.Complainant, Richard Kallaus appeared pro se.Respondent appeared by Associate County Counselor Paula Lemerman.

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

ISSUE

Complainants appeal, on the ground of overvaluation, the decision of the St. Louis County Board of Equalization, which sustained the valuation of the subject property.The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2009.The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

FINDINGS OF FACT

1.Jurisdiction.Jurisdiction over this appeal is proper.Complainants timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.A hearing was conducted on July 27, 2010, at the St. LouisCountyGovernmentCenter,Clayton,Missouri.

2.Assessment.The Assessor appraised the property under appeal at $576,700, a residential assessed value of $109,580.The Board sustained the assessment.[1]

3.Subject Property.The subject property is located at 19331 Babler Forest Road, Wildwood, Missouri.The property is identified by locator number 21Z340166.The property consists of a 15.13 acres tract.It is gently rolling and naturally wooded.The view from the home is of naturally wooded land.The subject improvements consist of a single-family one and a half story brick-sided frame house with full basement, 3-car attached masonry garage, covered front porch, patio, paved walkway, and a gravel circular front driveway and a driveway leading to a side-entry garage.The improvements are of good quality construction.The year built is 1997 and the improvements are in overall good physical condition.The residence has nine rooms above grade, with four bedrooms, 3 full baths and a half bath and three fireplaces.The home contains 5,214 square feet of living area.The full basement is approximately 4,183 square feet and has no finished areas.There was no sale of the property noted within three years prior to the tax date of January 1, 2009.[2]

4.Complainant’s Evidence.Mr. Kallaus testified on behalf of Complainants.He gave his opinion of the fair market value of his property as of January 1, 2009, to be $465,388.This was based upon his review of the three methods of appraising property and his conclusion

that the neighboring property adjoining the subject on the south constitutes “extreme external obsolescence.”The following exhibits were offered into evidence by Mr. Kallaus.

 

No objection was made to Exhibits E, F, G and H.They were received into the record.Counsel for Respondent objected to Exhibits A, B, C, D, I, J, K, L & M on the grounds of hearsay, lack of foundation and relevancy.The objections were sustained.Exhibits, A, B, C, D, I, J, K, L & M and the testimony relating to the exhibits was received only as an offer of proof and is maintained in the Commission file on that basis.Exhibits A, B, C, D, I, J, K, L & M and the testimony relating to the exhibits are excluded from the evidentiary record for the purpose of finding the true value in money of the Complainants’ property.See,infra.

There was no evidence of new construction and improvement from January 1, 2009, to January 1, 2010, therefore the assessed value for 2009 remains the assessed value for 2010.[3]

Complainant’s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2009, to be $465,388, as proposed.

5.No External Obsolescence Proved.Complainant failed to establish that the existence of a neighboring home in poor condition, but unable to be seen from Complainants’ home constituted external obsolescence.Complainant failed to establish any quantitative negative economic impact to the subject land from the existence of the neighboring home.

6.Respondent’s Evidence.Respondent presented the appraisal report[4] and testimony of Arthur Froeckmann, Missouri State Certified Residential Real Estate Appraiser.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 three properties were located within 2.74 to 4.30 miles of the subject.[5]Each sale property sold at a time relevant to the tax date of January 1, 2009.The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability.

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.

7.Original Assessed Value Sustained.Respondent’s evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2009, to be $710,000.However, Respondent’s appraisal was accepted only to sustain the original assessed value of $109,580 made by the Assessor and sustained by the Board and not for the purpose of raising the assessment above that assessed value.See, Evidence of Increase in Value, infra.

Respondent met the standard of clear, convincing and cogent evidence in this appeal to sustain the original valuation of $576,700, assessed residential value of $109,580.

 

CONCLUSIONS OF LAW AND DECISION

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious.The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious.[6]

Presumption In Appeals

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization.[7]This presumption is a rebuttable rather than a conclusive presumption.The presumption of correct assessment is rebutted when the taxpayer 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.[8]Complainants failed to present substantial and persuasive evidence to rebut the presumption of correct assessment and establish the fair market value of the subject property on January 1, 2009 to be $465,388.

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.[9]True value in money is defined in terms of value in exchange and not value in use.[10]It is the fair market value of the subject property on the valuation date.[11]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.[12]

 

Respondent’s appraiser arrived at his determination of value under the Standard for Valuation.[13]

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.[14]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.[15]Complainants failed to present an opinion of value based upon any accepted appraisal methodology for an appeal before the Commission.Mr. Froeckmann concluded his opinion of the fair market value of the Complainants’ property based upon the sales comparison approach.The sales comparison approach is generally considered the best indicator of value for owner occupied residential properties.

Complainants Failed To Prove Value of $465,388

In order to prevail, Complainants must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2009.[16]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.”[17]

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[18]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.[19]

Owner’s Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value.[20]The owner’s opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation.[21]Mr. Kallaus testified to his opinion of value of $465,388.He presented no information to establish that opinion of value had been derived from the proper application of any appraisal recognized appraisal methodology.It was not concluded from any recognized and accepted appraisal methodology.

In point of fact, the owner failed to present any evidence that demonstrated exactly how he arrived at his opinion of value.“Where the basis for a test as to the reliability of the testimony is not supported by a statement of facts on which it is based the testimony should be rejected.”[22]Since Complainant elected to not provide any detail as to the methodology for arriving at value the reliability of the owner’s opinion cannot be tested.It is left to mere speculation the method employed by Mr. Kallaus to arrive at an opinion of $465,388 for his property as of January 1, 2009.A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission “in the nebulous twilight of speculation, conjecture and surmise.”[23]The owner’s testimony on the fair market value of his property must be rejected.

Extreme External Obsolescence Claim

The opinion of value offered by the owner is based totally upon his assertion that the condition of the neighboring house constitutes, in his words, an “extreme external obsolescence” to his property.The owner failed to prove his claim for the following reasons.

Location of Kallaus House vis-a-vis Neighboring House

The property under appeal contains just over 15 acres of heavily wooded land.The tract lies in an elongated generally rectangular shape.In the middle of this acreage sits the subject home.It is secluded from all adjoining tracts of land.All of the properties adjoining the Kallaus tract on all sides are likewise heavily wooded.It is quite unlikely, if not impossible, at any time of the year for one to stand in the front, back or side of the Kallaus home and actually be able to observe the neighboring house complained of, or any other house on an adjoining property.[24]It is obvious that the subject home was built in its location to be secluded, and in fact concealed from any neighboring homes.The location of the home in the midst of mature woodland achieves this goal and likewise conceals and secludes from view from the Kallaus home, the home to the south and the home to the northeast.

In order for Mr. Kallaus to take photographs to show what he claims to be a matter of extreme external obsolescence affecting his property, it was necessary for him to leave his property and go onto the offending adjoining tract of land and walk to with a few yards of the other house.No photographs taken from the circle drive, the front entrance, the back or front yards or any other location on the grounds surrounding the immediate Kallaus homesite were provided to establish what might be the view through the trees to the alleged extreme external obsolescence.Furthermore, no photographs of the neighboring house were provided that would have been a view simply from the southern boundary of the Kallaus property looking toward the adjoining property.

These omissions speak volumes.The only logical conclusion that can be drawn is that any photographs taken from any of the locations just noted would have failed to disclose any view of the neighboring house from which an observer might be able to see its poor condition.The absence of any clear view from the Kallaus house of the poor condition of the neighboring house essentially eliminates any basis that there is any negative influence on the subject home from a neighboring house being in a rundown condition.The thick woods which lie between the Kallaus home and the neighboring house provide a line of sight buffer, indeed a forest barrier that prevents any clear view between the two homes.There can be no negative influence from a home in poor condition on the Kallaus home, since one cannot be viewed from the other.

External Obsolescence

Mr. Kallaus failed to prove that the existence of a neighboring home in run-down condition constituted external obsolescence to his tract of land.External obsolescence consists of a temporary or permanent impairment of the utility or salability of an improvement or property due to negative influences outside the property.[25]The existence of the neighboring home is not a permanent condition.The home may be repaired and upgraded, or it may be demolished to make way for a new home.There is nothing in the existence of the neighboring property that impairs the utility of the Kallaus home or property.The existence of a home in poor condition does not prevent the subject property being utilized as a residence for the Kallaus family or any other family that might purchase the property.The sole basis of the assertion of an external obsolescence made by Mr. Kallaus is that if one walks off the subject property over onto the neighboring property and comes within a few yards of the subject, one would see a home in poor condition and an unkempt yard and surrounding outdoor area.

The issue becomes whether there was presented any market data that would establish the actual economic impact, if any, on the salability of the Kallaus property from the existence of a home in poor condition on the neighboring property.The simple answer is – no such evidence was presented.In the proper development of an appraisal of property that is asserted to be subject to an external physical condition constituting external obsolescence, i.e. location in close proximity to a hazardous waste site, sanitary landfill, or industrial plant, the value of the property absent the external obsolescence is calculated.This was not done by Mr. Kallaus.Once the value of the property, unaffected by any external factor, has been established, then from sound market data, the economic impact from the external factor can be deducted.This would produce an indicated value accounting for the external obsolescence.This was not done by Mr. Kallaus.

The owner made no attempt to establish the value of the property under appeal relying on the cost or sales comparison approaches.[26]The owner made no attempt to establish a monetary factor extracted from market data that would account for the alleged external obsolescence to his home from the neighboring property.External obsolescence could be estimated for an owner occupied residential property by allocation of market-extracted depreciation or market data analysis.[27]If a monetary factor for external obsolescence cannot be estimated from one of these two methods, there is no evidentiary basis to make an adjustment for the asserted obsolescence.

Summary

The existence of the neighboring home in poor condition that cannot be seen from the Kallaus home does not constitute external obsolescence.The owner failed to establish that the existence of the run-down neighboring home resulted in a loss in value of the subject property on January 1, 2009.By substantial and persuasive evidence Respondent has establish the fair market value of the subject property on January 1, 2009, was $710,000.In order to find the value proposed by the owner of $465,388, the Hearing Officer would have to conclude that the asserted external obsolescence had reduced the value of the Kallaus property by $244,612.No evidence exists in the record to support such a finding.

Exhibits E, F, G & H – Photographs

The photographic exhibits[28] received into evidence provide no evidence from which the Hearing Officer can conclude that the most probably fair market value of the Complainants property on January 1, 2009 was only $465,388.Exhibit E provides a depiction of the closest neighboring home to the Kallaus home.The photographs were taken in close proximity to the neighboring house.They show a house, in a very, wooded area, with some items of exterior deferred maintenance and trash strewn along a side of the house.

Exhibits F, G & H provide no basis for a determination of value of the subject property.A picture may be worth a thousand words, however, when it comes to finding value of a given piece of real property, a picture never finds or sets a value.Value must be derived from market data applicable to the property being appraised.In other words, Exhibits E. F, G & H have no probative weight for finding the value of the subject property.

Exhibits A, B, C, D & M – Real Estate Tax History Statements

Mr. Kallaus made notations on these exhibits to demonstrate the reduction in assessed values and taxes paid on these five properties from 2007 to 2009.He presented no basis as to how this information established the value of his property.Nothing was offered by the taxpayer as to how the Hearing Officer could find the true value in money of the subject property based upon these documents.In other words, no foundation was laid to establish the relevance of the information contained in these documents.The amount of taxes, changes in taxes, or change in assessed values of other properties from one assessment cycle to the next have no probative value on the issue of the value of a property under appeal.The exhibits have no relevance in this appeal.

Exhibits I, J, K, L & M – zillow.com Information

These exhibits are all irrelevant in this appeal.The documents are hearsay.They come within no recognized exception to the hearsay rule.Complainant provided no basis upon which these documents prove the value he offered for his property.No foundation was laid for the relevance of any of the information provided in the documents or how it proved fair market value of the subject.

Conclusion

Complainants’ opinion of value was not based on proper elements and a proper foundation.It can be given no probative weight.Complainants failed to present market derived substantial and persuasive evidence to establish the value of the subject property.

Evidence of Increase in Value

In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor’s or board’s valuation, and not for increasing the valuation of the property under appeal.[29]The evidence presented by the Respondent was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the fair market value of the property under appeal, as of January 1, 2009, to be $710,000.However, under the Commission rule just cited and Supreme Court decision[30] the assessed value cannot be increased above $109,580 in this particular appeal.

Respondent’s Evidence Clear, Convincing and Cogent to Sustain Original Valuation

The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program.There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program.There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $576,700, appraised value, Respondent’s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.

The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:

(1)The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and

 

(2) The purchase prices from sales of at least three comparable properties and the address or location thereof.As used in this paragraph, the word comparable means that:

 

(a)Such sale was closed at a date relevant to the property valuation; and

 

(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used.Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.[31]

 

Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved.It does not mean that there may not be contrary evidence.[32]The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt.[33]“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.”[34]The appraisal report of Mr. Froeckmann met the statutory requirements to meet the standard of clear, cogent and convincing evidence.His determination of a fair market value of $710,000 establishes that the true value in money of the subject as of January 1, 2009, was at least $576,700.Accordingly, the assessed value of $109,580 must be affirmed.

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 AFFIRMED.

The assessed value for the subject property for tax years 2009 and 2010 is set at $109,580.

Application for Review

A party may file with the Commission an application for review of this decision within thirty days of the mailing date set forth in the Certificate of Service for this Decision.The application shall contain specific facts or law as grounds upon which it is claimed the decision is erroneous.Said application must be in writing addressed to the State Tax Commission of Missouri, P.O. Box 146, Jefferson City, 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. [35]

Disputed Taxes

The Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall continue to hold the disputed taxes pending the possible filing of an Application for Review, unless said taxes have been disbursed pursuant to a court order under the provisions of Section 139.031.8, RSMo.

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed.Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED September 3, 2010.

STATE TAX COMMISSION OFMISSOURI

 

 

_____________________________________

W. B. Tichenor

Senior Hearing Officer

w.b.tichenor@stc.mo.gov

 

 

 

 

Certificate of Service

 

I hereby certify that a copy of the foregoing has been mailed postage prepaid on this 3^rdday of September, 2010, to:Richard Kallaus, 19331 Babler Forest Rd., Chesterfield, MO 63005, Complainant; Paula Lemerman, Associate County Counselor, Attorney for Respondent, County Government Center, 41 South Central Avenue, Clayton, MO 63105; Michael Brooks, Acting 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

Barbara.Heller@stc.mo.gov

 

 

 

Contact Information for State Tax Commission:

Missouri State Tax Commission

301 W. High Street, Room 840

P.O. Box 146

Jefferson City, MO 65102-0146

573-751-2414

573-751-1341 Fax