Williams v. Simpson

• Decision Date: 18 April 1968
• Docket Number: No. J--158,J--158
• Parties: Marie Certain WILLIAMS and A. M. Williams, her husband, Appellants, v. Clyde H. SIMPSON, As Tax Collector of Duval County, Florida, and Fred O. Dickinson, Jr., As Comptroller of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 262

209 So.2d 262

Marie Certain WILLIAMS and A. M. Williams, her husband, Appellants, v. Clyde H. SIMPSON, As Tax Collector of Duval County, Florida, and Fred O. Dickinson, Jr., As Comptroller of the State of Florida, Appellees.

No. J--158.

District Court of Appeal of Florida, First District.

April 18, 1968.

Rehearing Denied May 10, 1968.

McCarthy, Adams & Foote, Jacksonville, for appellants.

Rogers, Towers, Bailey, Jones & Gay, and W. Joe Sears, Jr., Jacksonville, for appellees.

RAWLS, Acting Chief Judge.

The plaintiffs, Mr. and Mrs. Williams, have appealed from a final judgment finding that their property was assessed in excess of the fair market value and fixing the assessment at $30,500 for the years 1965 and 1966.

The sole question is whether the trial judge erred in adopting the appraisal of expert Osborn as the fair market value of plaintiffs' property for the years 1965 and 1966.

The property consists of two parcels totaling two and one-half acres, located about four miles east of the city limits of Jacksonville. On the south 240 feet border on Beach Boulevard, a heavily traveled highway, and on the north approximately 63 feet border on Big Pottsburg Creek. The street frontage to a 100-foot depth is zoned residence 'C' which permits apartment houses, and the rear portion is zoned residence 'A', single family dwellings. All the property located on the north side of Beach Boulevard and bordering on Big Pottsburg Creek, from the bridge to East Street, is zoned residential, as is the subject property. Most of the property bordering on Beach Boulevard in this area is zoned business, except all property adjoining and the property across Beach Boulevard from plaintiffs' property is zoned residential. Parcel 1 is a long slender strip of land presently being used in connection with plaintiffs' residence which is located on an adjoining parcel.

The defendant Tax Collector's appraiser, Frank K. Osborn, deposed that the property in question could and should be rezoned, the front portion changed to Business A or A--1 and the rear portion changed from Residence 'A' to Residence 'C' for apartments, and if it is rezoned then it would have the value he anticipated. He deposed that he was not familiar with Section 193.021, Florida Statutes, F.S.A., which sets forth the statutory criteria to be considered by tax assessors in arriving at a just valuation as required by Section 1, Article IX, Florida Constitution, F.S.A., Osborn's appraisal states:

'HIGHEST AND BEST USE:

'Considering the Future potential of this property, including increased demand as a result of the proposed Expressway to the west, it is apparent that the highest and best use of this property will be for income-producing property. Inasmuch as there is common ownership eastward to the Pottsburg Creek, which offers considerable beauty enhancement, it would appear that apartments might be considered. On the basis of Beach Blvd. frontage, however, it would appear that the frontage has Ultimate potential for commercial usage.

* * *

* * *

'After careful consideration of the comparable sales detailed in this report, of which there is adequate sales data to support a reasonable value conclusion, it is my opinion that the Fair Market Value of the property should be estimated at $200/FF which, for 239.5 FF was $47,900. Although the market reflects this value, It is obvious that all land in this vicinity cannot be immediately utilized.

It would appear that usage of this might be deferred an estimated five years which value is discounted as follows: (Emphasis supplied.)

Osborn's 'comparable' sales were almost exclusively business property sales. The sales he used to show what he calls a 'definite value trend' are All zoned business, are designated by Osborn himself as 'better locations' or 'service station location.' The one 'comparable' sale which Osborn lists as 'similar' has frontage on two streets--Beach Boulevard and Hogan Road--the Beach Boulevard portion being zoned business.

The appellants contend that Osborn's appraisal, admittedly based upon 'ultimate potential for commercial usage' which Osborn estimated would not come into being for five years and further based upon the assumption that the property should and could be rezoned, was an appraisal based upon speculation and conjecture and, therefore, is not competent evidence to be considered in determining valuation for tax assessment purposes. We agree.

Unlike appraisals made for eminent domain, estates and other purposes, assessments of property for tax purposes must comply with Section 1, Article IX, Constitution of the State of Florida, and the 1963 Statute, Section 193.021, which implements the constitutional provision. With reference to this statute, the Florida Supreme Court in Walter v. Schuler ¹ stated:

'(W)e regard the Act as an attempt by the legislature to pin the assessors more firmly to the Constitutional mandate.'

The statute provides that in assessing real and personal property, the following factors Shall be taken into consideration:

'(1) The present cash value of the property;

'(2) The highest and best use to which the property can be expected to be put in the immediate future; and the present use of the property; (Emphasis supplied.)

'(3) The location of said property;

'(4) The quantity or size of said property;

'(5) The cost of said property and the present replacement value of any improvements thereon;

'(6) The condition of said property;

'(7) The income from said property.'

The Walter case held that 'fair market value' and 'just valuation' are 'legally synonymous' and ²

'* * * may be established by the classic formula that it is the amount a 'purchaser willing but not obliged to buy, would pay to one willing but not obliged to sell.' Root v. Wood, 155 Fla. 613, 21 So.2d 133.

'If assessors will apply that test and in doing so observe the seven guideposts in Sec. 193.021, justness should be secured to the taxpayer and the tangle that has developed should be unraveled.' (Emphasis supplied.)

The statutory guidepost No. 2 has been construed by the Florida Supreme Court in Lanier v. Overstreet ³ as follows:

'By authorizing tax assessors to consider, as one of the factors '(i)n arriving at a just valuation' of property, the use to which the property 'can be Expected to be put in the Immediate future' (emphasis added), the Legislature has, under the familiar rule of Expressio unius est exclusio alterius, prohibited tax assessors from considering potential uses to which the property is reasonably susceptible and to which it might possibly be put in some future tax year or, even, during the current tax year. To be considered, the use must be Expected, not merely potential or a 'reasonably susceptible' type of use; it must be expected Immediately, not at some vague uncertain time in the future. The reason for the legislative policy in this respect was well stated by Judge White in his scholarly dissenting opinion in Lanier v. Tyson, supra, Flal.App., 147 So.2d 365, as follows:

"Assessed valuations of land based on estimates of its...