In re Equal. Appeal of Camp Timberlake, LLC

Decision Date09 January 2015
Docket Number111,273.
Citation340 P.3d 1236 (Table)
PartiesIn the Matter of the Equalization Appeal of CAMP TIMBERLAKE, LLC, for Tax Year 2012 in Johnson County.
CourtKansas Court of Appeals

Melissa Hoag Sherman, of Lathrop & Gage LLP, of Overland Park, for appellant Camp Timberlake, LLC.

Kathryn D. Myers, assistant county counselor, for appellee Board of Johnson County Commissioners.

Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.

MEMORANDUM OPINION

POWELL, J.

For the 2012 tax year, Johnson County (County) classified property owned by Camp Timberlake, LLC as commercial. Camp Timberlake appealed to the Kansas Court of Tax Appeals (COTA), claiming the property should have been classified as agricultural. COTA found Camp Timberlake failed to meet its burden to show agricultural activity took place on the property on or before January 1, 2012, and confirmed the County's classification as commercial. Camp Timberlake now appeals to this court, arguing COTA erred by: (1) finding Camp Timberlake bore the burden to provide evidence sufficient to justify an agricultural classification; and (2) erroneously interpreting and applying the law concerning agricultural classification. The County denies Camp Timberlake's claims and also challenges whether this court has subject matter jurisdiction.

Because we find: (1) the County bore the burden of proof to establish that the proper classification of the property was commercial; (2) it is undisputed that the County presented no evidence to support its commercial classification of the property; and (3) Camp Timberlake met its burden of production to establish that some agricultural activity took place on the property in 2011, we must vacate COTA's final order and remand with directions for COTA to enter an order classifying the property as agricultural.

Factual and Procedural Background

The property at issue is over 70 acres of wooded area adjacent to the Overland Park Arboretum in Johnson County, Kansas. At the time Camp Timberlake purchased the property in September 2011, the buildings on the property were in disrepair due to lack of maintenance. Camp Timberlake contested the County's classification of the property as commercial for 2012, arguing instead that the property should be classified as agricultural. After an informal hearing, the County agreed the property would be classified as agricultural for the 2013 tax year but not the 2012 tax year.

Although the documents are not included in the record, it appears Camp Timberlake timely appealed the informal hearing decision to COTA's small claims and expedited hearings division. A small claims hearing was held, and the hearing officer concluded the property should be classified as part residential and part agricultural because it had been subject to an agricultural lease with a farmer since Camp Timberlake purchased the property. The County appealed the small claims division decision to the full panel of COTA.

Bradley Bergman, the sole member of Camp Timberlake, testified before COTA that since purchasing the property, he built an enclosure for raising ducks, cleaned up the lodge building, and repaired one of the barns in order to store a tractor and a truck. Bergman also testified he entered into an oral lease agreement with Harold Green-an affidavit from Green was introduced swearing he entered into a verbal agricultural lease of the property in September 2011. The following year, on April 28, 2012, Camp Timberlake and Green entered into a written farm lease agreement.

According to Bergman, starting in the fall of 2011, Green was permitted to engage in agricultural-type activities on the property such as harvesting wood and farming. In exchange, Green would split any profits 50/50 with Camp Timberlake. Bergman claimed Green started cutting and collecting trees in 2011 to harvest timber and cleared the lake to see if he could raise trout in it. Green cleared trees from various places throughout the property and hauled them to an area where he had a commercial log splitter. Bergman testified trees were taken from nearly every corner of the property.

Bergman explained that after cutting down some trees, the wood was left in place on bricks so it could dry while trees or branches that were already dead and dry were moved to the area with the splitter. He testified there were about 50 places where the wood was piled. In the end, the wood was stacked and sold. Bergman stated individuals bought the wood to burn in their fireplaces and the hickory wood was often used for cooking barbecue.

Bergman introduced pictures of the property showing the collected wood, harvested trees, the log splitter, the area where the ducks were being raised, and the walnut groves. The duck enclosure was built in the summer of 2012. One of the pictures showed an open field with a hay bale where Bergman said he had talked with his neighbor about running cattle on it in the future. The hay bale had been purchased and moved to the property to be used to control erosion and for duck padding. Bergman stated he had purchased seedlings and saplings and planted them wherever there was an opening on the property, but he did not recall whether he had done so in 2011. He went through the pictures of the piled wood on the property and explained that if the cut end was gray, then the wood came from a dead tree; if the cut end was red or orange, the wood came from a live tree. Bergman could not say when the pictures of the property were taken.

Bergman testified that in 2011 Green cleared brush out of the lake, removed the algae, and installed a pumping system to aerate the lake in order to provide a proper habitat for trout. In 2012, the lake was stocked with rainbow trout, and an invoice dated October 31, 2012, documenting the purchase of the trout was introduced into evidence. Bergman also expressed interest in raising chickens and bees on the property in the future. The property also contained walnut trees, but Bergman testified he personally had not collected or sold any walnuts from the property and did not know if Green had done so. He testified that 100 percent of the income from the property was derived from agricultural activities and he had no other intent or use for the property.

The County called J. Cooper, an appraiser in the Johnson County Appraiser's office, to testify. COTA allowed Cooper to testify over Camp Timberlake's objection but noted it did not rely on Cooper's testimony to support or otherwise form its final order. Cooper inspected the property in the fall of 2012 and testified he saw ducks as well as piles of wood and split wood. He claimed the wood looked as if it had been dead trees that had been removed because they had fallen across the path. He also testified he did not see any newly planted trees, any other animals, or crops. The County presented no evidence to support the commercial classification of the property.

COTA ruled Camp Timberlake had failed to demonstrate agricultural activity had occurred on or before January 1, 2012, such that the property could be classified as agricultural for the 2012 tax year and upheld the County's determination that the property was properly classified as commercial. Camp Timberlake filed a petition for reconsideration, arguing COTA incorrectly interpreted and applied the law because the property was never used for commercial purposes and Camp Timberlake engaged in only agricultural endeavors since its purchase of the property. COTA denied Camp Timberlake's petition, and Camp Timberlake now timely appeals COTA's final order.

Does this Court Have Subject Matter Jurisdiction?

Initially, the County raises two issues which it claims are jurisdictional bars to our consideration of Camp Timberlake's appeal. First, the County argues the small claims division of COTA did not have subject matter jurisdiction to consider Camp Timberlake's classification challenge. Second, the County contends we lack jurisdiction to consider Camp Timberlake's claim that COTA improperly applied the burden of proof, arguing Camp Timberlake never raised the issue in its petition for reconsideration.

Whether jurisdiction exists is a question of law upon which our scope of review is unlimited. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 830, 104 P.3d 378 (2005).

A. Small Claims Division Jurisdiction

For the first time on appeal, the County claims we lack subject matter jurisdiction over this case because the small claims division of COTA did not have subject matter jurisdiction. Subject matter jurisdiction may be raised at any time, and the parties may not confer jurisdiction by failing to object to the absence of it. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 875, 281 P.3d 135 (2012).

Specifically, the County argues the small claims division did not have statutory authority under K.S.A.2011 Supp. 74–2433f(c) to hear a case involving property classified as agricultural. If the small claims division did not have subject matter jurisdiction, as the County argues, then COTA did not have subject matter jurisdiction since Camp Timberlake failed to file a notice of appeal with COTA, rather than the small claims division, within 30 days after the informal hearing. See K.S.A.2011 Supp. 74–2438(a). If COTA lacked jurisdiction, then its decision is void and we do not have jurisdiction to review this case. See Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 456, 284 P.3d 337 (2012) (if lower tribunal lacks jurisdiction to enter order then appellate court does not acquire jurisdiction on appeal).

We can easily dispense with the County's argument. While it is true that K.S.A.2011 Supp. 74–2433f(c) does not give COTA's small claims division jurisdiction to hear a case involving property classified as agricultural, both parties admit the property was not classified as agricultural for the 2012 tax year, the year at issue, when Camp Timberlake appealed to the small claims division. Therefore, under K.S.A.2011 Supp. 74–2433f(c)(3), the small claims division...

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  • In re Equalization Appeal of East KS Agri Energy
    • United States
    • Tax Court of Kansas
    • January 24, 2018
    ...2013); In re Equalization Appeal of Kansas Star Casino, L.L.C. 52 Kans.App.2d 50, 362 P.3d 1109 (2015); and In re Camp Timberlake, LLC, 340 P.3d 1236, 2015 WL 249846 (unpublished opinion) (Kan.App. 2015)) and, giving primary importance that the singular issue for adjudication at the August ......

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