Bystrom v. Union Land Investments, Inc.

• Citation: 477 So.2d 585,10 Fla. L. Weekly 1874
• Decision Date: 06 August 1985
• Docket Number: No. 84-1604,84-1604
• Parties: 10 Fla. L. Weekly 1874, 10 Fla. L. Weekly 2521 Franklin B. BYSTROM, as Property Appraiser of Dade County, Florida, Appellant, v. UNION LAND INVESTMENTS, INC., and Randall Miller, Director of the Department of Revenue, Appellees.
• Court: Court of Appeal of Florida (US)

Page 585

477 So.2d 585

10 Fla. L. Weekly 1874, 10 Fla. L. Weekly 2521

Franklin B. BYSTROM, as Property Appraiser of Dade County, Florida, Appellant, v. UNION LAND INVESTMENTS, INC., and Randall Miller, Director of the Department of Revenue, Appellees.

No. 84-1604.

District Court of Appeal of Florida,

Third District.

Aug. 6, 1985.

Rehearing Denied Nov. 12, 1985.

Robert A. Ginsburg, Co. Atty., and James K. Kracht, Asst. Co. Atty., for appellant.

Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, Paul A. Louis and Frank Nussbaum, Miami, for appellees.

Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The Property Appraiser of Dade County, Florida, appeals from a ruling of the trial court that determined that as of January 1, 1980, "there had been substantial and sufficient preparatory work done on the [appellee's] land to constitute use of the property for a bona fide agricultural purpose" so as to entitle the appellee-property owner to an agricultural classification and corresponding favorable tax assessment of its land. ¹ We reverse this ruling upon a holding that although there is no dispute that the property owner intended to use the property in question for agricultural purposes during 1980 and thereafter, the property owner failed to prove, as was its burden, that it was being so used on January 1, 1980.

In September 1979, Union Land Investments, Inc. (Union) purchased a 180-acre tract of land in southwest Dade County. At the time of purchase, the property contained a heavy overgrowth of trees and shrubs and was substantially covered with debris. In October 1979, Union entered into a farm lease with John Mitchell, who immediately subleased approximately 120 acres to Frederick Rutzke. Mitchell and Rutzke began clearing the land in late October or early November 1979. All of the lease agreements required that the property be cleared by February 1, 1980.

Pursuant to Section 193.461(3)(a), Florida Statutes (1979), Union timely applied for an agricultural classification for the property for the year 1980. After an investigation and physical inspections of the property, the Dade County Property Appraiser determined that the property in question was not being used primarily for bona fide agricultural purposes as of January 1, 1980, and therefore denied agricultural classification. ² Union filed petitions with the Property Appraisal Adjustment Board contesting this decision. Following a hearing, a special master for the Board recommended granting agricultural classification to the property for 1980, and the Board adopted the recommendation. The effect of the Board's decision was to reduce the Property Appraiser's non-agricultural assessment of $1,435,326 to an agricultural assessment of $48,274.

The Property Appraiser filed an action pursuant to Section 194.032(6)(a) 1. and 2., Florida Statutes (1981), seeking to reinstate his original non-agricultural assessment of the property. After a non-jury trial, the lower court entered its final judgment dismissing the Property Appraiser's complaint, in effect upholding the Board's determination that the 180-acre tract was entitled to agricultural classification for the year 1980.

Chapter 59-226, Laws of Florida (1959), Florida's "Greenbelt Law," extended preferential treatment to lands "used exclusively for agricultural purposes." All later enactments have consistently imposed this use requirement. Straughn v. Tuck, 354 So.2d 368, 370 (Fla.1977), adhered to in Roden v. K & K Land Management, Inc., 368 So.2d 588 (Fla.1978). In Hausman v. Rudkin, 268 So.2d 407, 409 (Fla. 4th DCA 1972), the Fourth District explained:

"The favorable tax treatment provided by the statute is predicated on land use, that is, physical activity conducted on the land. Smith v. Ring, Fla.App.1971, 250 So.2d 913; Smith v. Parrish, Fla.App.1972, 262 So.2d 237. Under the terms of the statute, as we understand them, if the land is physically used for agricultural purposes, it must be accorded agricultural zoning, provided the use is 'primarily for bona fide agricultural purposes.' (Emphasis added). The term 'primarily' simply signifies that the agricultural use must be the most significant activity on the land where the land supports diverse activities. See Walden v. Borden Company, Fla.1970, 235 So.2d 300. The terms 'bona fide' as used in the statute impose the requirement that the agricultural use be real, actual, of a genuine nature--as opposed to a sham or deception. See Sapp v. Conrad, Fla.App.1970, 240 So.2d 884, 889 (dissent) and Smith v. Ring, supra." ³

This "actual use" requirement is manifest in the long-standing practice of assessing lands used for agricultural purposes on an acreage basis. ⁴ See, e.g., St. Joe Paper Co. v. Adkinson, 400 So.2d 983 (Fla. 1st DCA 1981) (non-productive 660-foot strip of beachfront property, comprising perimeter of 37,500-acre tract of forest land, properly classified non-agricultural); Hausman v. Hartog, 371 So.2d 1036 (Fla. 4th DCA 1978) (upholding trial court's agricultural classification of twenty-five-acre orange grove, but reversing same characterization of remaining fifty-five acres of vacant land owned by appellee); Mackle Co. v. Metropolitan Dade County, 220 So.2d 422 (Fla. 3d DCA 1969) (only south half of 320-acre tract accorded assessment as agricultural lands). See also Greenwood v. Oates, 251 So.2d 665 (Fla.1971).

It is, however, the actual use of property as of the assessment date that controls in determining entitlement to the preferential treatment of agricultural classification. Under the taxing statutes the assessment date is January 1 of each year, and the character of a particular parcel of land, including whether or not it should be classified as agricultural, is determined by its use as of that date. Bass v. General Development Corp., 374 So.2d 479, 482 (Fla.1979); Lanier v. Overstreet, 175 So.2d 521 (Fla.1965); Haines v. Holley, 234 So.2d 152 (Fla. 2d DCA), cert. denied, 238 So.2d 428 (Fla.1970); § 192.042, Fla.Stat. (1979). See Withers v. Metropolitan Dade County, 290 So.2d 573 (Fla. 3d DCA 1974). See also Dade County Taxing Authorities v. Cedars of Lebanon Hospital Corp., 355 So.2d 1202 (Fla.1978). Acknowledging this proposition, the trial court found that even prior to January 1, 1980, the property owner had embarked upon a good faith program of land preparation and planting.

Despite the trial court's finding that planting of the property was under way by January 1, 1980, the undisputed evidence is that the very first planting--of okra--occurred on January 24, 1980. Moreover, without dispute, as of January 1, 1980, at least ninety per cent of the property was uncleared, impassable and garbage infested: a January 16, 1980, inspection of the property revealed that as of then no more than ten per cent of the 180 acres had been cleared; and an aerial photograph of the property taken on February 4, 1980, showed that fifty per cent of the land as of then still remained uncleared. ⁵ While, concededly, by the middle of 1980, wells were dug and all usable parts of the 180 acres had been cleared and planted, there is simply no evidence to support the trial court's finding of agricultural use as of January 1, 1980.

We reach this conclusion not because, as the Property Appraiser urges, the act of clearing of land is too ambiguous to be considered as evidence of agricultural use. Indeed, we assume that the act of clearing if combined with other actions evincing the property owner's bona fide intent to use the land for agricultural purposes (for example, in this case, the lease agreements requiring agricultural use and the post-January 1, 1980, agricultural activities) would be sufficient to show that the clearing of the land constituted an agricultural use. See Mississippi Employment Security Commission v. Ballard Co., 228 So.2d 361 (Miss.1969) (clearing of land by farmer's own employees deemed to be "agricultural labor" under state law exempting such labor from taxation for employment security purposes); Janes Bros., Inc. v. Perry, 229 So.2d 147 (La.Ct.App.1969), cert. denied, 255 La. 788, 232 So.2d 515 (1970) (machinery used to clear and prepare land for planting exempt from taxation under provision of state constitution). See also Withers v. Metropolitan Dade County, 290 So.2d 573, 575 (in dictum stating that in order to establish an actual agricultural use for favorable tax treatment "[a]t the very minimum, there must be some preparatory work (clearing or planting or cultivation) done on the land.") Cf. Mackle Co. v. Metropolitan Dade County, 220 So.2d 422 (Fla. 3d DCA 1969) (clearing of land standing by itself not enough for agricultural classification where lessee testified he did not intend to farm the cleared land at any time during the forthcoming year). ⁶ But even given the assumption that the act of clearing in this case, combined with other actions evincing an intent to use the land for agricultural purposes, would have been enough to support the trial court's decision, there simply is no evidence that any specific amount of land was cleared as of January 1, 1980. The burden to present such evidence was the property owner's.

The trial court, however, was apparently of the view that it was up to the Property Appraiser to prove that the property was not being used for agricultural purposes on January 1, 1980. While the Appraiser undertook to and did establish that at least 160 acres were not so used as of January 1, 1980 (and would thus, in any event, have been entitled to classify and assess that much of the land as non-agricultural), it was not his burden to prove this negative. The Property Appraiser's assessment of $1,435,326 based on a non-agricultural classification was entitled to a presumption of correctness despite the subsequent decision of the Property Appraisal Adjustment Board overturning that assessment, see Blake v. Oceancoast Corp., 417 So.2d 1002 (Fla. 3d DCA), rev. denied...