McWilliams v. Pope Cnty. Bd. of Equal. & Pope Cnty. Assessor
| Decision Date | 13 December 2012 |
| Docket Number | No. 12–385.,12–385. |
| Citation | 2012 Ark. 427,424 S.W.3d 837 |
| Parties | Robert W. and Sue C. McWILLIAMS, Appellants v. POPE COUNTY BOARD OF EQUALIZATION and Pope County Assessor, Karen Martin in her Official Capacity, Appellees. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
Diana M. Maulding, Attorney at Law/CPA, PLLC, by Diana M. Maulding, for appellants.
The Coutts Law Firm, P.A., Russellville, by: James V. Coutts, for appellees.
This is an appeal from a circuit court judgment affirming the classification of real property for tax purposes. On appeal, appellants Robert and Sue McWilliams contend that the circuit court (1) erred in failing to apply to their land the definitions for land classifications found in Arkansas Constitution, article 16, section 15 and the Assessment Coordination Department (“ACD”) Rules and Regulations; (2) erred, in violation of the Equal Protection Clause of the United States Constitution, by relying on ad hoc requirements imposed only on appellants by appellee Pope County Board of Equalization (the “BOE”); (3) erred, in violation of the Equal Protection Clause, when it denied their petition without considering similarly situated property owners with similar property classified as timber and pasture within the Russellville city limits; and (4) erred in allowing a site visit by BOE's expert witness between the first day of trial in November 2010 and the second day of trial in September 2011. We affirm.
In May 2006, appellants purchased an 11.2–acre tract classified as residential land within the city limits of Russellville from Eddie and Traci Rood for $102,000. When the Roods owned the land, they paid approximately $160 per year in taxes because they had been given a “developer's discount” by appellee Pope County Assessor Karen Martin. According to appellants, after they purchased the land from the Roods, Martin valued the land at $136,350, with a tax of $1047.17. Appellants submitted an affidavit to the BOE seeking to change the classification from residential to timber land. After reviewing the information presented by appellants and physically inspecting the property, the BOE adjusted the value of the property “due to access and road conditions only,” appraised the land at a value of $102,850.1 and denied appellants' request that the land be assessed as timber land. Appellants appealed the decision of the BOE to the Pope County Court, which affirmed the BOE. Appellants then appealed the county court's decision to the Pope County Circuit Court, and the circuit court affirmed. Appellants now appeal the circuit court's decision.
Our standard of review in property-assessment cases is as follows:
Because of the separation of powers doctrine, it is not within the province of state courts to assess property. Cook v. Surplus Trading Co., 182 Ark. 420, 31 S.W.2d 521 (1930). Courts can only review the assessments and reverse them and send them back to the executive department when they are clearly erroneous, manifestly excessive, or confiscatory. St. Louis–San Francisco Ry. Co. v. Ark. Public Serv. Comm'n, 227 Ark. 1066, 304 S.W.2d 297 (1957). We have said that we will reverse property assessments only in the “most exceptional cases.” JimPaws, Inc. v. Equalization Bd. of Garland County, 289 Ark. 113, 710 S.W.2d 197 (1986). The burden of proof is on the protestant to show that the assessment is manifestly excessive or clearly erroneous or confiscatory.
Tuthill v. Ark. Cnty. Equalization Bd., 303 Ark. 387, 390, 797 S.W.2d 439, 440–41 (1990).
Appellants first contend that the circuit court erred in failing to apply to their land the definitions for land classifications found in Arkansas Constitution, article 16, section 15. Appellants rely on article 16, section 15(a) to support their contention that their land cannot be classified as residential because they do not live on the land. Article 16, section 15(a) provides:
(a) Residential property used solely as the principal place of residence of the owner thereof shall be assessed in accordance with its value as a residence, so long as said property is used as the principal place of residence of the owner thereof, and shall not be assessed in accordance with some other method of valuation until said property ceases to be used for such residential purpose.
Contrary to appellants' assertion, section 15(a) does not state that property may be classified as “residential” only when the owner lives on the land. Rather, section 15(a) explains that “residential property” that is used solely as the principal place of residence of the owner must be assessed in accordance with its value as a residence, as opposed to another method of valuation. The requirement in section 15(a) does not apply to “residential property” that is not used solely as the principal place of residence of the owner.2
We next address appellants' contention that their land meets the definition of “timber land” found in the ACD Rules and Regulations. They cite to Rule 4.08.1, which defines “bona fide timber land” as
[f]orest land that is producing, or capable of producing, crops of industrial wood and is not withdrawn from timber utilization (Appendix, pg. 30, “ Forest Resources of Arkansas ” Southern Forest Experiment Station, Resource Bulletin SO–169, Feb. 1992).3
Appellants claim that their land should be classified as timber land because it is producing, or is capable of producing, crops of industrial wood and it has not been withdrawn from timber utilization. At the hearing before the circuit court, Mr. McWilliams testified that he used the property to grow trees. He also testified that he had sold timber from the property for a profit of $9,024, and that he had set up a timber account at the bank.
Charles Primeaux, County Forester for the Arkansas Forestry Commission, prepared a Forest Management Plan for appellants after they purchased the land. The plan stated that the soil on the land had a site index of 65 and explained that a site index “indicates the height a species will attain in 50 years, as well as the potential productivity of a site.” The plan further stated that the potential productivity was fair for improved loblolly pine at 85 cubic feet per acre per year. The plan recommended that appellants (1) cut all cedar on the tract; (2) cut or thin the dying, diseased, crooked, or damaged post oak and hickory; (3) prepare the areas where regeneration is wanted by removing leaf litter; and (4) thin and space seedlings between the ages of two and three. Mr. McWilliams testified that, after he obtained the plan, he followed some of the recommendations, but he admitted that “the main thing that [he hadn't] done [was] cut all the cedar off.” He further testified that he did not intend to follow the recommendation that he cut all the cedar off; rather, he planned to market the cedar as the need arose.
Appellants also presented evidence from forestry expert Michael Bentley. Bentley inventoried the land and testified that, in his opinion, the tract was capable of producing commercial quantities of lumber or forest products. He described the tract as timber land, which he defined as land having “some type of stocking of woody plants” or “land with trees growing on it.” Bentley testified that, while he had no knowledge regarding the previous owners' use of the property, he did not see any sign that appellants had withdrawn the property from timber utilization. He stated that, at the time of his inventory, the total value of available, marketable wood on the land was $2700. Further, he testified that he had determined the stocking rate to be eighty percent.
Forestry expert and certified general appraiser David Reinold testified for appellees. Reinold examined the land, and he testified that it was not suitable for commercial timber production. Reinold stated that he had reviewed the Forest Management Plan, and he disagreed with the plan's statement that the site index was 65. In Reinold's opinion, the site index was no higher than 50, which meant the land would not be suitable for timber production at a profit and that the types of trees growing on the land would not be the best choice for timber production, even if timber production were attempted. Reinold also testified that the soil codes for the land were codes 25 and 26, and that this meant the soil was not good for growing trees.
Essentially, Bentley's opinion was that the land was “bona fide timber land,” and Reinold's opinion was that the land was not “bona fide timber land,” and the circuit court gave more credence to Reinold's testimony. This court gives due deference to the superior position of the circuit court to determine the credibility of witnesses and the weight to be accorded their testimony. E.g., City of Rockport v. City of Malvern, 356 Ark. 393, 155 S.W.3d 9 (2004). Further, it is within the province of the trier of fact to resolve conflicting testimony. Id. We cannot say the circuit court was clearly erroneous in concluding that appellants' land was not timber land.
Appellants next contend that the circuit court erred, in violation of the Equal Protection Clause, by relying on ad hoc requirements imposed only on appellants by appellees. Specifically, appellants assert that the circuit court's ruling was based on appellees' requirement of profitability of the tract and that other taxpayers with timber land do not have to prove profitability.
Assuming, arguendo, that the circuit court's ruling was based on profitability of the tract, we do not find that ad hoc requirements were imposed on appellants. At the hearing, Assessor Martin testified that, based on Rule 3.51 of the ACD Rules and Regulations, when a taxpayer...
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