Tapawingo Partners v. Brooks (SLCO)

TAPAWINGO PARTNERS,)

)

Complainant,)

)

v.) Appeal Number 07-12771

)

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 SET ASIDE.True value in money for the subject property for tax years 2007 and 2008 is set at $3,600,000: $3,240,000 – residential and $360,000 – commercial; total assessed value of $730,800 – residential assessed value of $615,600 and commercial assessed value of $115,200.Complainant appeared Counsel, Cathy Steele, Clayton, Missouri.Respondent appeared by Assistant County Counselor, Carl W. Becker.Case heard and decided by Senior Hearing Officer W. B. Tichenor.

ISSUE

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

SUMMARY

Complainant appeals, on the ground of overvaluation and discrimination, the decision of the St. Louis County Board of Equalization, which reduced the valuation of the subject property.Evidentiary hearing was conducted on July 22, 2009, at the St. Louis County Government Center, Clayton, Missouri.Transcript was filed with the Commission on August 3, 2009, and Briefing Schedule was issued on that date.Complainant’s Brief was received by the Commission on October 22, 2009.Respondent’s Brief was received on December 11, 2009, and Complainant’s Reply was received on January 13, 2010.

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

FINDINGS OF FACT

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

2.Discrimination Issue Abandoned.Complainant presented no evidence addressing the claim of discrimination; therefore the ground of discrimination was deemed abandoned.

3.Assessor and Board Assessment.The Assessor valued the Complainant’s property at $9,392,600 – residential and $1,939,600 – commercial, for a total true value in money of $11,332,200.The Board of Equalization reduced the residential value to $9,300,000 and sustained the commercial value for a total true value in money of $11,239,600.[1]

4.Property Description.The subject property is located at 13001 Gary Player Drive, Sunset Hills, Missouri.The property is identified by parcel number 27N140041.The property is a 27 hole golf course with clubhouse and supporting amenities, otherwise known as the Tapawingo National Golf Club.[2]

5.Complainant’s Evidence.Complainant presented the Appraisal Report[3] and testimony[4] of Thomas H. Slack, MAI, Missouri State Certified General Real Estate Appraiser.Mr. Slack’s appraisal included his analysis of the National Golf Market,[5] his Highest and Best Use analysis,[6] Valuation under the Cost Approach,[7] Sales Comparison Approach,[8] and Income Approach,[9] his Reconciliation and Final Value Opinion,[10] Value Allocation,[11] and supporting documentation.[12]

6.Respondent’s Evidence.Respondent filed the following Exhibits:[13]

Respondent did not present an appraisal of the subject property, but rested upon the presumption of correct assessment by the Board.Exhibit 5 was received into evidence, with Question and Answer stricken as per Order dated 6/16/09.

7.No New Construction and Improvement.There was no evidence of new construction and improvement from January 1, 2007, to January 1, 2008, therefore the value set for 2007 remains the value for the 2008 tax year.[14]

8.Highest and Best Use.The highest and best use of the subject tract of land if vacant would be development as a golf course.The highest and best use of the subject property as of January 1, 2007, as improved is its current use, as it generates a value in excess of the underlying land value.There are no alternative uses that could be expected to provide a higher present value than the current use.[15]

8.Complainant’s Indicated and Reconciled Values.The indicated value under the cost approach was $4,140,000.[16]The indicated value under the sales comparison approach was $3,700,000.[17]The indicated value under the income capitalization approach was $3,540,000.[18]Relying upon the Income Approach, supported by the Sales Comparison Approach, the final reconciled value of $3,600,000 was established by Complainant’s appraisal.[19]

9.Complainant Established Value.Complainant’s evidence was substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2007, to be $3,600,000, $3,240,000 – residential allocation and $360,000 – commercial allocation.[20]

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.[21]

Presumptions In Appeals

There is a presumption of validity, good faith and correctness of assessment by the CountyBoardof Equalization.[22] The presumption in favor of the Board is not evidence.A presumption simply accepts something as true without any substantial proof to the contrary.In an evidentiary hearing before the Commission, the valuation determined by the Board is accepted as true only until and so long as there is no substantial evidence to the contrary.

The presumption of correct assessment is rebutted when the taxpayer 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.[23]Complainant presented substantial and persuasive evidence that both rebutted the presumption of correct assessment by the Board and established the fair market value that should have been placed on the property for the 2007-2008 assessment cycle.

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.[24]True value in money is defined in terms of value in exchange and not value in use.[25]It is the fair market value of the subject property on the valuation date.[26]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.[27]

Complainant’s appraiser performed his valuation under this standard of value.[28]

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 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.[29]

The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances.The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert’s testimony and accept it in part or reject it in part.[30]The testimony and appraisal report of Mr. Slack[31] when viewed in light of all evidence on the record is accorded weight and credit sufficient to meet the burden of proof for Complainant to prevail.No evidence was presented in response to Complainant’s case in chief which rebutted any of the essential facts, conclusions and opinions advanced by Mr. Slack.Accordingly, the Hearing Officer has no reasonable basis to not accept the Complainant’s evidence of value as substantial and persuasive.

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.[32]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.[33] Mr. Slack developed each of these approaches to value.The approaches to value were developed in accordance with recognized and accepted standards for a valuation of this nature.[34]Each approach was presented in a narrative form with detailed analysis and appropriate grids and charts to explain the development of the methodologies.[35]

The income approach to valuation is the most commonly utilized approach for the valuation of golf courses.It typically will provide the most accurate indicator of value for a golf course.“It reduces the differences between golf courses to the least common denominator – i.e. net income or cash flow – which is quantified in the market and converted into value using a capitalization rate derived from market data and/or investment surveys.A golf facility is typically acquired for its income producing capacity, and the income capitalization approach directly measures this important attribute.”[36]Mr. Slack properly placed greatest reliance on this approach with support from the Sales Comparison Approach.

Opinion Testimony by Experts

If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence.[37]The appraisal of Mr. Slack, his written direct testimony and testimony at hearing were founded upon the appropriate elements and foundation for the rendering of an expert opinion on the value of the subject golf course.The facts and data relied upon and the methodologies employed were of the types reasonably relied upon by experts in the field of appraisal for the appraisal of golf courses.

Complainant Met Its Burden of Proof

In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2007.[38]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.”[39]The evidence established an overvaluation of Complainant’s property.Overvaluation of property is an unlawful, unfair and improper assessment.

Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[40]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.[41]

The opinion of value tendered by Mr. Slack developed from his appraisal of the subject property constituted substantial and persuasive evidence to rebut the presumption of correct assessment and establish the fair market value of the property under appeal.

Points Raised by Respondent’s Brief Not Persuasive

Respondent’s Brief presented the following points:

1.      Highest and Best Use Not Adequately Addressed.

2.      Improper Flood Plain Information.

3.      Cost To Construct Clubhouse.

4.      Utilization of Inappropriate Comparables.

None of the points presented are persuasive to reject the valuation developed by the Slack appraisal.

Highest and Best Use

Respondent asserts that Complainant’s appraiser should have given consideration to alternate uses of the property.This argument is not based on any market data presented as rebuttal evidence.Nor was any evidence presented in Respondent’s case in chief that even addressed highest and best use, much less, opined the highest and best use of the property was for residential development of single-family homes. The claim rests solely on general cross-examination by Counsel for Respondent regarding residential development in the area around the golf course.[42]Questions and suggestions by counsel during cross-examination do not constitute evidence.

In this particular instance, the interrogation relative to residential development of single family homes in areas around the Complainant’s property does nothing to establish that a possible alternative use of the subject land as a residential subdivision constituted its highest and best use on January 1, 2007.The line of questioning was mere speculation at best as it relates to highest and best use as vacant or as improved for the subject property.Given no market data was presented to rebut Mr. Slack’s highest and best use analysis, the only evidence on the record from which a conclusion of highest and best use can be made is the Slack analysis.For the Hearing Officer to conclude that the highest and best use of the p