IN RE WHITESIDE ESTATES, INC., No. COA99-334.

• Decision Date: 18 January 2000
• Docket Number: No. COA99-334.
• Citation: 136 NC App. 360,525 S.E.2d 196
• Parties: In the Matter of the Appeal of WHITESIDE ESTATES, INC.
• Court: North Carolina Court of Appeals

525 S.E.2d 196

136 NC App. 360

In the Matter of the Appeal of WHITESIDE ESTATES, INC.

No. COA99-334.

Court of Appeals of North Carolina.

January 18, 2000.

Jones, Key, Melvin & Patton, P.A., by Richard Melvin, Franklin, for Taxpayer appellant.

Parker, Poe, Adams & Bernstein, L.L.P., by Charles C. Meeker, Raleigh, for Jackson County appellee.

HORTON, Judge.

Whiteside Estates, Inc. (Whiteside), is a North Carolina family corporation which owns a 227-acre tract of land near Cashiers in Jackson County, North Carolina. The primary purpose of the corporation, as described in its charter, is the purchase and sale of real estate. All of the stock in Whiteside is owned by the Young family. O.E. Young, Jr., and his wife, Mary Lu Young (the senior Youngs), are the majority stockholders in Whiteside, holding 51% of its stock. The senior Youngs are residents of Florida, who usually spend six months of the year at their home in Jackson County. During their yearly stay in North Carolina, they participate in the operation of a real-estate business in Highlands. The senior Youngs also own an adjoining tract of about 250 acres. That adjoining tract is the subject of a separate appeal from the Property Tax Commission, which appeal was decided by a separate opinion filed this date.

The minority interest in Whiteside, a total of 49% of the outstanding stock, is held by the five children of the senior Youngs. Four of the Young children live outside North Carolina, but one son, John David Young, works in Highlands and lives in a home on the property.

John David Young is generally responsible for maintaining the Young property in Jackson County. A 15-acre lake is located near the center of the property. Whiteside recently reconstructed the dam which impounds the lake at a cost of $110,000.00. The water from the lake is not used to irrigate the trees which grow on the property. The home in which the senior Youngs live when they are in North Carolina has a view of the lake. There are two subdivisions with a total of 20 home sites located on the property. During 1994 and 1995, following widespread destruction to standing trees on the property caused by Hurricane Opal, Whiteside contracted with a logger from South Carolina to cut and remove timber from about 100 acres of its tract, receiving some $14,000.00 in revenues. In 1996, Whiteside received income from water fees, road fees and a cable agreement. It incurred expenses related to the operation and management of the two subdivisions on the property.

Before 1997, the subject property was assessed for tax purposes in the amount of $102,800.00, under present-use value status, forestry classification. In April 1997, C.E. Russell, a Jackson County taxpayer, filed an appeal with the Jackson County Board of Equalization and Review (County Board) challenging the present-use classification of the property owned by Whiteside. As a result, the County Board determined that Whiteside's property did not meet the present-use value requirements for 1997, and notified Whiteside of its right to a hearing. The County Board conducted a hearing at the request of Whiteside, but determined that the Whiteside property should be assessed for tax purposes at its fair market value of $719,400.00. Whiteside then appealed to the Property Tax Commission, which heard its appeal in Asheville on 25 August 1998. Whiteside moved to dismiss Mr. Russell's initial appeal to the County Board, contending that Russell had no standing to challenge the listing, assessment or appraisal of the Whiteside property, and further contending that its right to due process was violated by the procedure. The Property Tax Commission denied the motion. After considering the evidence presented by Whiteside, the Property Tax Commission granted the motion of Jackson County to dismiss Whiteside's appeal, on the grounds that Whiteside had not carried its burden of showing that the land was actively engaged in the commercial growing of trees. By its Final Order, the Property Tax Commission affirmed the County Board's decision to deny present-use value classification to the Whiteside property, and to assign a market value of $719,400.00 to the property. Whiteside appealed.

Whiteside contends the Commission erred (I) in denying its motion to dismiss the initial appeal to the County Board filed by Russell, and (II) in concluding that Whiteside failed to show that the property in question is forestland which was part of a forest unit actively engaged in the commercial growing of trees under a sound management program. Jackson County cross-assigns error to the failure of the Property Tax Commission to find and conclude that Whiteside failed to show that its owners are farmers actively engaged in the principal business of tree farming.

I.

In support of its motion to dismiss, Whiteside contends that C.E. Russell, a private citizen, had no standing to challenge the assessment on Whiteside's property unless Russell shows that he was "aggrieved" in some respect by the valuation of Whiteside's property. It was agreed by the parties that Russell owned a small interest in a piece of property in Jackson County located some miles away from the Whiteside property, that the property in which Russell had an interest was not in the forest use classification, and that Russell's interest was as a general taxpayer in Jackson County.

In 1973, North Carolina joined a majority of our sister states by enacting legislation which permitted preferential assessment of property used for agricultural, forest and horticultural purposes. The legislation, which was substantially amended in 1975, is found in N.C. Gen.Stat. §§ 105-277.2 through -277.7 (1999). See W.R. Company v. Property Tax Comm., 48 N.C.App. 245, 257, 269 S.E.2d 636, 643 (1980),

disc. review denied, 301 N.C. 727, 276 S.E.2d 287 (1981). The owner of agricultural, forest or horticultural lands may apply to have the lands appraised at their present-use value, a value lower than the market value of the property. In order to qualify for such preferential treatment, however, the lands must be maintained in a "sound management program" which is defined as "[a] program of production designed to obtain the greatest net return from the land consistent with its conservation and long-term improvement." N.C. Gen.Stat. § 105-277.2(6). "This provision may disqualify a weekend or hobby farmer or speculator who does not maintain these lands in a `sound management program.'" W.R. Company, 48 N.C.App. at 257,

269 S.E.2d at 643. Here, Whiteside submitted a Forest Management Plan in 1976. The plan was approved by Jackson County, and the Whiteside property was given a present-use classification as forestland. It appears from the record that the forestland classification was not reviewed until 1997, when Russell complained to the County Board about the present-use classification of Whiteside's land. Whiteside argues that Russell had no standing to take such action. We disagree.

N.C. Gen.Stat. § 105-322(g)(2) provides in pertinent part that "[o]n request, the board of equalization and review shall hear any taxpayer who owns or controls property taxable in the county with respect to the listing or appraisal of his property or the property of others." Id. (1999) (emphasis added). In In re King, 281 N.C. 533, 189 S.E.2d 158 (1972), urban property owners in Nash County questioned the assessment of farm land within the County, contending that the farm property was undervalued for tax purposes. The State Board of Assessment, predecessor of the Property Tax Commission, found that the rural property was undervalued for tax purposes and ordered a revaluation. The superior court affirmed the decision of the Board of Assessment. Our Supreme Court affirmed the decision, pointing out that property is required to be valued "at its true value" for tax purposes. The Supreme Court explained that

[t]he purpose of the statutory requirement that all property be appraised at its true value in money is to assure, as far as practicable, a distribution of the burden of taxation in proportion to the true values of the respective taxpayers' property holdings, whether they be rural or urban. It is the duty of the County Board of Equalization and Review, when so requested, to hear any taxpayer owning taxable property in the county with respect to the valuation of his property or of the property of others and to eliminate unlawful discriminations in the valuations of all properties in the county. G.S. 105-327(g). If such taxpayer is aggrieved by the order of the County Board of Equalization and Review, he may appeal to the State Board of Assessment. G.S. 105-329.

Id. at 539, 189 S.E.2d at 161.

In discussing King and related cases, our Supreme Court held in Brock v. Property Tax Comm., 290 N.C. 731, 228 S.E.2d 254 (1976), that, "[w]hen examined with respect to the statutes in effect at the time these cases were decided and with respect to the facts of each case, it is clear that the Court permits a property owner to contest the valuation on the `property of others' only where he is in some way aggrieved by that valuation." Brock, 290 N.C. at 740, 228 S.E.2d at 260. Although Whiteside relies heavily on Brock in support of its position that Russell had no standing to question the assessed value of Whiteside's property, Brock is clearly distinguishable from the case before us. Brock involved a number of taxpayers who sought to challenge the valuation of all farm property in Jones County, contending that all farm property in the County was valued in excess of its fair market value by at least 25 percent. The Jones County Board of Equalization and Review denied the request, and Brock and 10 other taxpayers appealed to the Property Tax Commission. Thereafter, Brock forwarded the names of 99 other Jones County taxpayers to the Property Tax Commission, asking that they be listed as appellants. The Property Tax Commission dismissed the appeal as to the...