Tilton v. Gardner

• Decision Date: 02 February 2011
• Docket Number: No. 5D09-1097.,5D09-1097.
• Citation: 52 So.3d 771
• Parties: Lawrence V. TILTON, Donna W. Tilton, et al., Appellants, v. James E. GARDNER, Jr., etc., et al., Appellees.
• Court: Florida District Court of Appeals

52 So.3d 771

Lawrence V. TILTON, Donna W. Tilton, et al., Appellants,

v.James E. GARDNER, Jr., etc., et al., Appellees.

No. 5D09-1097.

District Court of Appeal of Florida, Fifth District.

Dec. 17, 2010.

Rehearing Denied Feb. 02, 2011.

Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellants.

Loren E. Levy and Ana C. Torres, of The Levy Law Firm, Tallahassee, for Appellees.

FLEMING, J., Associate Judge.

Landowners ¹ appeal a final judgment affirming a property appraiser's denial of an agricultural classification in 2006. The issue raised is one of first impression:Whether the trial court erred in its application of section 193.461(3)(e), Florida Statutes (2006), in determining that the landowners were not entitled to an agricultural classification in 2006, after having been granted such classification by a Value Adjustment Board in 2004, because landowners had abandoned or discontinued such agricultural use.² We conclude that the trial court properly applied the statute and that its decision was supported by competent, substantial evidence. Greenwood v. Oates, 251 So.2d 665 (Fla.1971). Accordingly, we affirm.

Appellant Tilton bought 279 parcels of land (totaling 346 acres) for $13,000 in 1998. The parcels were scattered throughout an undeveloped residential subdivision known as Flagler Estates. Tilton, who is experienced in timber and has run a sawmill since 1979, harvested timber on the land from 2000 to 2003.

In 2004, Tilton applied for the land to be classified as agricultural. Flagler County Property Appraiser, John Seay, denied the agricultural classification, stating there was "[n]ot a bona fide commercialagricultural endeavor as contemplated by Chapter 193, Florida Statutes." Tilton appealed to the Flagler County Value Adjustment Board ("VAB"). After a hearing, a special magistrate resolved the conflicting testimony in Tilton's favor and recommended granting the agricultural classification. He concluded that Tilton had established "credible use of the property as a legitimate agricultural operation at the present time," noting that Tilton was knowledgeable and although his operation was not highly profitable, there was no such requirement under Florida law. The VAB granted the agricultural classification and the property appraiser did not appeal.

In 2005, the newly elected property appraiser, James Gardner, continued the agricultural classification without further inspection of Tilton's land. However, in 2006, Gardner denied Tilton's agricultural classification, finding: (1) "[i]nsufficient evidence of care for the land in accordance with accepted agricultural practices;" (2) "[w]hile there is evidence of some agricultural activity, it is not sufficient to qualify as bona fide commercial agricultural use;" and (3) "[n]o evidence of an economically feasible operation to qualify as good faith commercial agricultural use under the law."

Tilton again appealed to the VAB. After a hearing, a special magistrate recommended that the VAB sustain the property appraiser's denial of agricultural classification, which the VAB followed. The special magistrate found that "the weight of the evidence in favor of the petitioner was not sufficient to overcome the conclusion that, as of January 1, 2006, the commercial agricultural use had been abandoned or discontinued...."

Tilton then filed suit against the property appraiser and the VAB ³ in circuit court, pursuant to chapter 194, Florida Statutes, challenging their denial of the agricultural classification. At trial, Tilton argued that section 193.461(3)(e), not section 193.461(3)(b), controlled the classification in this case. Because Tilton had obtained an agricultural classification from the VAB in 2004, he argued that he was entitled to an agricultural classification in subsequent years as long as he continued the same use of the property approved by the VAB in 2004. More precisely, Tilton argued that the VAB's determination of bona fide agricultural use in 2004 was "res judicata" for purposes of future classifications and that the property appraiser was limited to determining whether such previously approved use had been abandoned, discontinued or diverted. Gardner countered that section 193.461(3)(e) did not remove his authority to make an annual determination pursuant to the factors listed in section 193.461(3)(b).

After hearing evidence and argument, the trial court ruled in favor of the property appraiser. The court focused on evidence of Tilton's use of the land on January 1, 2006, observing that the only two uses of the land between 2004 and 2006 were continued harvesting of timber and buying and selling of parcels. Based on the testimony of Gardner's experts, the court concluded that Tilton's harvesting of timber alone, without any effort to promote regeneration evinced an abandonment, discontinuation of diversion to nonagricultural use. Specifically, in harvesting timber, Tilton did not leave sufficient seed trees to regenerate the harvested areas but failed to harvest water oaks, whose canopies inhibited regeneration. In addition, the court found that the condition of the property in relationto natural regeneration had deteriorated because Tilton had allowed underbrush to flourish, which further inhibited natural regeneration, instead of eradicating it by chopping, applying herbicide or burning it. With specific regard to burning, the court noted that Tilton's efforts to have the Forestry Service burn the underbrush were commendable but nevertheless unsuccessful and that "whether or not the lands are classified agricultural depends on what is done, not on what is intended to be done." (Emphasis in original). In contrast, the Court noted that most of what Tilton's expert, Scott Sager, observed regarding activity to promote regeneration occurred after Gardner's 2006 denial.

With regard to buying and selling parcels, the court noted in August 2005, Tilton contracted to sell his property—332 tracts for $30,000 a tract—but the contract expired in December with Tilton having closed on 56 tracts. The court saw this activity as evidence that Tilton was no longer using the land for agricultural purposes under section 193.461(4)(a)(2), Florida Statutes. The court concluded as follows:

Since Plaintiffs' lands were classified agricultural in 2005 what changed?

In 2006 Denton [Chief Forester of Greenbelt Consultants] and Hunter [Gardner's Agricultural Supervisor], who the Court found to be highly credible, observed insufficient activity existed well before January 1st, 2006, to convince them and Gardner that the lands were being used primarily for bona fide agricultural purposes. In the six years Plaintiffs had owned most of the tracts the only forestry activity which had occurred was harvesting of trees. There had been no activity to ensure the natural regeneration process until after the 2006 denial. As testified by Denton the operation was a "cut and get out" forestry operation not consistent with good forestry practices. In those six years Plaintiffs had only harvested timber and bought and sold parcels of property. [Emphasis in original.]

As found by the Special Magistrate the Court finds that the weight of the evidence in favor of Plaintiffs is not sufficient to overcome the conclusion that as of January 1st, 2006, the agricultural use of the property had been abandoned or discontinued which was also probably true in 2004 and 2005. Pursuant to Section 193.461(4)(a)(2), F.S. the Property Appraiser reclassified the lands as nonagricultural. Greenwood v. Oates, 251 So.2d 665 (Fla.1971).

This appeal followed.

Both sides agree that section 193.461(3)(e) controls, but Tilton claims the trial court incorrectly denied him an agricultural classification using section 193.461(3)(b), instead. Tilton acknowledges that normally the standard of review is whether competent, substantial evidence supports the trial court's fact-findings. Love PGI Partners, LP v. Schultz, 706 So.2d 887 (Fla. 5th DCA 1998). In this case, however, he argues for a de novo standard to the extent this Court needs to construe 193.461(3)(e) as a pure question of law. Id. at 893.

Tilton's argument ignores the fact that the trial court applied section 193.461(3)(e) when it found "that the weight of the evidence in favor of Plaintiffs is not sufficient to overcome the conclusion that as of January 1, 2006, the agricultural use of the property had been abandoned or discontinued'...." In so finding, the trial court expressly acknowledged that section 193.461(3)(e) applied, noting that the section provides for an automatic extension "unless certain changes have occurred."The court then recounted the changes it found had occurred from 2004 to 2006.

While it is clear that the trial court applied the proper statute, the question remains was 193.461(3)(e) applied correctly? The section was enacted in 2002 and has not been discussed in any reported cases. Thus, its application is a matter of first impression.

By its plain terms, section 193.461(3)(e) applies to land that has received an agricultural classification from a VAB or court in a prior year, presumably resulting from a landowner's successful challenge of a property appraiser's denial of the classification. That is what occurred in the instant case. In 2004, the property appraiser denied Tilton's application for an agricultural classification. He appealed to the VAB, and the VAB granted the classification. Thus, the portion of Tilton's land subject to the 2004 VAB classification was "entitled to receive such classification in any subsequent year until such agricultural use of the land is abandoned or discontinued, the land is diverted to a nonagricultural use, or the land is reclassified as nonagricultural pursuant to subsection (4)."

Tilton argues that section 193.461(3)(e) seeks to protect landowners like him who have already survived a VAB action by prohibiting the property appraiser from making a de...