STATE TAX COMMISSION OF MISSOURI
|SURECUT LAWNCARE, LLC,||)|
|v.||)||Appeal No. 17-10148|
|JAKE ZIMMERMAN, ASSESSOR||)|
|ST. LOUIS COUNTY, MISSOURI,
DECISION AND ORDER
The assessment made by the Board of Equalization of St. Louis County (BOE) is AFFIRMED, in part, and SET ASIDE, in part. Complainant Surecut Lawncare, LLC, (Complainant) presented substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE. True value in money (TVM) for the subject property for tax years 2017 and 2018 is set at $46,072, agricultural classification, assessed value of $5,529.
Complainant appeared by counsel Eric Tremayne.
Respondent Jake Zimmerman, St. Louis County Assessor, (Respondent) appeared by Counsel Steven Robson.
Case heard and decided by Chief Counsel Maureen Monaghan (Hearing Officer).
Complainant appealed on the grounds of overvaluation and classification. Respondent initially set the TVM of the subject property at $303,100 and classified it as commercial and agricultural. The BOE valued the subject property at $303,100. Of the TVM as determined by the BOE, $10,000 of the value was allocated to the agricultural classified property and $293,100 of the property was allocated to the commercial classified property. The State Tax Commission (STC) takes this appeal to determine the TVM and classification for the subject property as of January 1, 2017. The value as of January 1 of the odd numbered year remains the value as of January 1 of the following even numbered year unless there is new construction or improvement to the property. Section 137.115.1 RSMo.
The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.
FINDINGS OF FACT
- Jurisdiction. Jurisdiction over this appeal is proper. Complainant timely appealed to the STC from the decision of the BOE.
- Evidentiary Hearing. The Evidentiary Hearing was held on February 8, 2018, at the St. Louis County Government Administration Building, Clayton, Missouri.
- Identification of Subject Property. The subject property is identified by map parcel number or locator number 20W530170. It is further identified as 610 Babler Park Drive, Chesterfield, St. Louis County, Missouri. (Complaint for Review of Assessment)
- Description of Subject Property. The subject property consists of 10.69 acres improved with:
- A 1,568 square foot warehouse structure with and enclosed area of 182 square feet for office use;
- A 9 foot by 28 foot utility or lean-to attached to the improvement described in a);
- A 24 foot by 78 foot lumber shed;
- A canopy;
- A 13 foot by 14 foot utility building;
- A 55 foot by 20 foot carport;
- Fencing; and
- 500 gallon tank.
- Assessment. Respondent valued the property at $303,100 as commercial and agricultural property, with an assessed value of $94,992. The BOE valued the subject property at $303,100, thereby sustaining the initial valuation. (Respondent’s Exhibit 5)
- Complainant’s Evidence. Complainant offered into evidence the following exhibits:
|A||Aerial Photograph of Subject|
|B||Aerial Photograph of Subject designated floodplain|
|C||Aerial Photograph of Subject depicting flood zone|
|D||Aerial Photograph of Subject and surrounding areas|
|E||Aerial Photograph of Subject and surrounding area|
|F||Aerial Photograph of Subject and topography|
|G||Photograph of Flood damage to property|
|H||Photograph of Flood damage to property|
|I||Photograph of Flood damage to property|
|J||Photograph of Flood damage to property|
|K||Photograph of Flood damage to property|
|L||Photograph of Flood damage to property|
|M||Photograph of Flood damage to property|
|N||Photograph of Flood damage to property|
|O||Photograph of Flood damage to property|
|P||Photograph of Flood damage to property|
|Q||Photograph of Flood damage to property|
|R||Photograph of Flood damage to property|
|S||Photograph of Flood damage to property|
|T||Photograph of Flood damage to property|
|U||Photograph of Flood damage to property|
|V||Photograph of Flood damage to property|
|W||Photograph of Flood damage to property|
|X||Photograph of Flood damage to property|
|Y||Photograph of Flood damage to property|
|Z||Photograph of Flood damage to property|
|AA||Affidavit of Joseph Vujnich, Director of Planning and Parks|
|BB||St. Louis County Records on Parcel 20W540092|
|CC||St. Louis County Records on Parcel 20W440154|
|WDT||Written Direct Testimony (WDT) of Kirk Earleywine (Kirk)|
|WDT||WDT of Robin Earleywine (Robin)|
Respondent did not object to Exhibits A through AA or the WDT of the Kirk and Robin Earlywine and all exhibits were admitted into evidence. Exhibits BB and CC were not offered for admission.
Kirk testified that he is the manager of Surecut Lawncare. The business involves a nursery, landscaping and lawn care. They have several locations from which the business operates. The subject parcel is their nursery. They grow trees and shrubs on the property. They do not sell either retail or wholesale at the location. The trees and shrubs are used by their landscaping business. There are two trucks parked on the parcel that are used in their landscaping business and there are two lawn mowers parked on the parcel which are used for their lawn care business. The trucks are used on occasion to move trees and shrubs for the nursery especially during times of flood. The mowers are used at the nursery to maintain the excess land.
Kirk testified that any of the improvements on the property are used to grow shrubs. The buildings are used in the winter to protect the plants from cold weather and used in the summer to protect plants from the sun.
Kirk testified to the property’s location on a flood plain and proximity to a creek which overflows on a regular basis. Photographs (Exhibits G-Z) include damage caused by the flood. Damage occurs to the improvements where the plants are grown and the flood waters often wash away shrubs and other plantings in containers. Kirk stated that he attempts to set up barriers using hardscape to catch the plants when floodwaters wash away the buildings. The property floods approximately four times each year. Due to the flooding, many acres are unusable for planting or growing plants in containers.
Kirk marked Respondent’s Exhibit 1 in red for areas that he is able to raise and harvest plants in ground. Kirk marked Respondent’s Exhibit 1 in green for areas that are used for growing plants in containers.
Robin testified that she is the owner of the landscaping business. She operates her business from another location. The subject property is used to grow shrubs and trees for the landscaping business. Robin also testified that the property is subject to flooding on a regular basis and that the flood waters reach the entirety of the property.
Complainant presented no evidence as to the valuation of the improvements. Complainant advocates for a classification of agriculture for the entirety of the subject and a Grade 8 valuation.
- Respondent’s Evidence. Respondent offered into evidence the following exhibits:
|1||Aerial photograph of subject|
|2||Aerial photograph of subject|
|3||3 pages of photographs. Photographs on page 1 depict land classified as commercial use; photographs on page 2 and 3 depict “unused land”|
|WDT||David Winkler (Winkler)|
Complainant did not object to Respondent’s exhibits, which were admitted into the record. Winkler testified as to the photographs being of the subject property and that the purchase of the property included personal property, the on-going business, and continued services of the prior owner.
When asked how the assessment was calculated, Winkler testified that one acre and the improvements were valued at $293,100 and classified as commercial. The remaining 9.69 acres were valued at $1,035 per acre or $10,029. Winkler did not know the value of land classified as commercial, however, the improvements were valued in total at $45,300. Therefore the valuation of the remaining one acre of land was $247,800. Winkler testified that the land used for parking the equipment and the area outside of the rowed tree growing area was determined to be commercial property. The land determined to be commercial is designated on Exhibit 3.
No evidence was presented regarding the market value of the land or improvements classified as commercial.
- Presumption of Correct Assessment Rebutted. Complainant presented substantial and persuasive evidence to rebut the presumption of correct assessment by the BOE and to establish the classification and TMV of the subject property as of January 1, 2017, to be $46,072, classified as agriculture.
CONCLUSIONS OF LAW AND DECISION
The STC has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious, including the application of any abatement. The Hearing Officer shall issue a decision and order affirming, modifying or reversing the determination of the BOE, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Article X, Section 14, Mo. Const. of 1945; Sections 138.430, 138.431, 138.431.4, RSMo.
There exists a presumption of correct assessment by the BOE – the BOE presumption. The BOE presumption operates in every case to require the taxpayer to present evidence to rebut it. If Respondent is seeking to prove a value different than that set by the BOE, then Respondent is required to rebut the BOE presumption.
In the present appeal, the BOE sustained the initial valuation of Respondent. Complainant is now seeking to have all of the property classified as agricultural and graded at Grade 8 while Respondent is seeking to uphold the BOE’s valuation; therefore, the BOE presumption applies with regard to Complainant.
Basis of Assessment
The Constitution mandates that real property and tangible personal property be assessed at its value or such percentage of its value as may be fixed by law for each class and for each subclass. Article X, Sections 4(a) and 4(b), Mo. Const. of 1945. The constitutional mandate is to find the TVM for the property under appeal. By statute, real property and tangible personal property are assessed at set percentages of true value in money: residential property at 19%; commercial property at 32%; and agricultural property at 12%. Section 137.115.5 RSMo (2000) as amended.
Under Missouri statutory law, property shall be classified as agricultural and horticultural property when “real property [is] used for agricultural purposes and devoted primarily to the raising and harvesting of crops . . .” Section 137.016.1(2) RSMo. The classification is determined by the actual use put to the property. Northtown Village v. Don Davis, Assessor, Jasper County. Mo., Appeal Nos. 03-62558 (May 27, 2004)[ providing that the definitions in Section 137.016 (2000) illustrate that “the classification turns on the actual use put to the property.]
Land devoted primarily to the raising and harvesting of crops is valued by its productivity value. The STC sets forth those valuations, based upon grades, in the Code of State Regulations. 12 CSR 30-4.010.
“(A) Grade #1. This is prime agricultural land. Condition of soils is highly favorable with no limitations that restrict their use. Soils are deep, nearly level (zero to two percent (0–2%) slope) or gently sloping with low erosion hazard and not subject to damaging overflow. Soils that are consistently wet and poorly drained are not placed in Grade #1. They are easily worked and produce dependable crop yields with ordinary management practices to maintain productivity—both soil fertility and soil structure. They are adapted to a wide variety of crops and suited for intensive cropping. Use value: one thousand thirty-five dollars ($1,035); ….
(E) Grade #5. Soils are not suited to continuous cultivation. Crop rotations contain increasing proportions of small grain (for example, wheat or oats), hay, or both. Upland soils have moderate to steep slopes and require conservation practices. Limitations—
- Moderate to steep slopes (eight to twenty percent (8–20%));
- Grades #2 and #3 bottomland subject to frequent damaging flooding (more than once in two (2) years) and Grade #4 bottomland subject to occasional damaging flooding; and
- Serious drainage problems for some soils. Use value: two hundred five dollars ($205);
(G) Grade #7. These soils are generally unsuited for cultivation and may have other severe limitations for grazing and forestry that cannot be corrected. Limitations—
- Very steep slopes (over fifteen percent (15%));
- Severe erosion potential;
- Grades #5 and #6 bottomland subject to frequent damaging flooding (more than once in two (2) years);
- Intensive management required to achieve grass or timber productions; and
- Very shallow topsoil. Use value: seventy-nine dollars ($79);
(H) Grade #8. Land capable of only limited production of plant growth. It may be extremely dry, rough, steep, stony, sandy, wet, or severely eroded. Includes rivers, running branches, dry creek, and swamp areas. The lands do provide areas of benefit for wildlife or recreational purposes. Use value: thirty-one dollars ($31); and
(I) Definitions. The following are definitions of flooding for purposes of this rule:
- Damaging flooding. A damaging flood is one that limits or affects crop production in one (1) or more of the following ways:
- Erosion of the soil;
- Reduced yields due to plant damage caused by standing or flowing water;
- Reduced crop selection due to extended delays in planting and harvesting; and
- Soil damage caused by sand and rock being deposited on the land by flood waters;
- Frequent damaging flooding. Flooding of bottomlands that is so frequent that normal row cropping is affected (reduces row crop selection); and
- Occasional damaging flooding. Flooding of bottomland that is so infrequent that producing normal row crops is not compromised in most years.”
Investigation by Hearing Officer
In order to investigate appeals filed with the STC, the Hearing Officer may 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. Section 138.430.2 RSMo (2000), as amended. The Hearing Officer’s decision regarding the assessment or valuation of the property may be based solely upon her inquiry and any evidence presented by the parties or based solely upon evidence presented by the parties. Id.
During the Evidentiary Hearing, the Hearing Officer inquired of Complainants and Winkler.
Official and Judicial Notice
Agencies shall take official notice of all matters of which the courts take judicial notice. Section 536.070(6). Courts will take judicial notice of their own records in the same cases. State ex rel. Horton v. Bourke, 129 S.W.2d 866, 869 (1939); Barth v. Kansas City Elevated Railway Company, 44 S.W. 788, 781 (1898). In addition, courts may take judicial notice of records in earlier cases when justice requires or when it is necessary for a full understanding of the instant appeal. Burton v. Moulder, 245 S.W.2d 844, 846 (Mo. 1952); Knorp v. Thompson, 175 S.W.2d 889, 894 (1943); Bushman v. Barlow, 15 S.W.2d 329, 332 (Mo. banc 1929); State ex rel St. Louis Public Service Company v. Public Service Commission, 291 S.W.2d 95, 97 (Mo. banc 1956).
In the present appeal, the Hearing Officer takes official notice of 12 CSR 30-4.010.
Weight to be Given Evidence
The Hearing Officer is not bound by any single formula, rule, or method in determining true value in money but is free to consider all pertinent facts and estimates and to 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).
Complainant alleged two grounds for appeal: misclassification and misgraded agricultural property. Subject property is classified as commercial and agricultural. The improvements and one acre of the property were classified as commercial property. The remaining 9.69 acres were classified as agricultural and determined to be Grade 1. Grade 1 land is prime agricultural land.
Complainant’s owners testified to the use of the property but did not offer a valuation for the improvements or any land values. Complainant’s owners testified that all of the property, both land and improvements, is used for raising and harvesting of crops – trees and shrubs. No sales of their crops are conducted at that location or any location. They make use of all the trees and shrubs grown. The owners testified as to the flooding of the property and which areas are usable for growing trees and shrubs.
Complainant’s evidence was substantial and persuasive to establish the land was improperly graded. A review of the exhibits provided information to assist in grading the property. The aerial photographs show the creek bed, designated flood plain and topography. The photographs show the flooding is damaging. Subject property’s grade ranges from Grade 5 to Grade 8.
The land at the creek and creek bed is Grade 8. Grade 8 includes rivers, running branches, dry creek, and swamp areas. The use value is thirty-one dollars ($31). Using the aerial photographs and topography exhibits, it is determined that the subject property has 4.9 acres of Grade 8 land.
The area adjacent to the creek is determined to be Grade 7. These soils are generally unsuited for cultivation. Further, they are subject to frequent damaging flooding more than two times per year. The use value is seventy-nine dollars ($79). Using the aerial photographs and topography exhibits, it is determined that the subject property has 4.5 acres of Grade 7 land.
The remaining area is determined to be Grade 5. Grade 5 land includes land in which soils are not suited to continuous cultivation. Further, the property is subject to damaging flooding. The use value is two hundred five dollars ($205). Using the aerial photographs and topography exhibits, it is determined that the subject property has 1.29 acres of Grade 5 land.
Complainant presented no information regarding the valuation of the improvements. The BOE’s determination of value of the improvements is affirmed, however, the classification is determined to be agricultural.
Assessment of Subject Property
|1.29 acres||Grade 8||$31.00||=||$151.90|
|4.9 acres||Grade 7||$79.00||=||$355.50|
|4.5 acres||Grade 5||$205.00||=||$264.45|
|10.69 acres||$771.85||Say $772|
|Assessed Value||$5528.64||Say $5,529|
The TVM of the improvements is AFFIRMED. The classification of the improvements and one acre of land is SET ASIDE. The assessed valuation for the subject property as determined by Respondent and sustained by the BOE for the subject tax day is SET ASIDE. The proper classification of the subject property is agricultural and the assessed value for the subject property for tax years 2017 and 2018 is set at $5,529.
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, MO 65102-0146, 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 application for review is based will result in summary denial. Section 138.432, RSMo
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 this 27th day of February, 2018.
STATE TAX COMMISSION OF MISSOURI
I hereby certify that a copy of the foregoing has been sent electronically or mailed postage prepaid this 27th day of February, 2018. The individuals notified are as follows:
Eric Tremayne, Counsel for Complainant, firstname.lastname@example.org
Steven Robson, Counsel for Respondent, SRobson@stlouisco.com
Jake Zimmerman, Assessor, email@example.com
Mark Devore, Collector, firstname.lastname@example.org
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
 $1,035 is the productivity value for Grade 1 land. Mr. Winkler did not know the Grade of the property.
 Respondent rounded down the value to $10,000.
 $293,100 (TVM) – $10,000 (Value of 9.69 acres) – $45,300 (Value of the improvements) = $247,800
 TVM x 12% = Assessed value of agricultural classified property. Further, Section 137.235 provides that if a valuation is fractional, the valuation is to be rounded to the dollar.