ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This is a case brought by the Lexington County Assessor ("Assessor") against Mary M. Hendrix
concerning whether the Respondent's property should be classified as agricultural for the property
tax year 1995. The Respondent applied for and was denied agricultural assessment by the
Assessor's Office; however, the Lexington County Board of Assessment Appeals granted the
agricultural assessment. The Assessor is now seeking a hearing before the Administrative Law
Judge Division. A contested case hearing was held August 13, 1996 at the Office of the
Administrative Law Judge Division ("ALJD").
ISSUE
Do the provisions of S.C. Code Ann. § 12-43-232(1)(a) (Supp. 1995) require the Assessor to
classify any of the Respondent's property as agricultural?
DISCUSSION
The Assessor submits that a portion of the subject property was erroneously classified as
agricultural in 1994 and prior years, and, that under the provisions to the Agricultural Use Law,
12-43-232(1)(a), the property is not entitled to agricultural use.
The Respondent asserts that 1.89 acres of her 3.39 acre tract meet all of the requirements of the
referenced Code section. More specifically, the Respondent claims that although the subject
property does not meet the minimum acreage requirement of 12-43-232(1)(a), it nevertheless
qualifies under the provision which allows for tracts of timberland of less than five acres which are
contiguous or under the same management system as a tract of timberland which meets the
minimum acres requirement to be treated as part of the qualifying tract.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their
credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. Notice of the date, time, place, and nature of the hearing was timely given to all parties.
2. The Respondent is the owner of a parcel of real estate consisting of 3.39 acres. Located on the
3.39 acres is a portion of the property classified as legal residence and two mobile homes which
are presently classified as rental properties.
3. The property is located in Lexington County, South Carolina, and is identified on the Lexington
County Tax Map as Tax Map Number 4496-02-030.
4. The Respondent timely filed an application for agricultural assessment.
5. The Assessor disapproved the agricultural use classification.
6. The Respondent thereafter filed a written objection with the Assessor and appealed the matter
to the Lexington County Board of Assessment Appeals. The Assessment Appeals Board heard
this matter and concluded that the 1.89 acres of the subject property should be classified as
agricultural, that .5 acres of the property should be classified as rental property, and the remaining
acreage classified as residential property.
7. The Assessor has appealed the decision of the Lexington County Board of Assessment
Appeals.
8. The subject property has a residence, two mobile homes, and some standing timber. None of
the timber has been harvested in the last thirty years. The Respondent's children own property in
the surrounding area, some of which is classified as agricultural property, but none of the property
is contiguous to the Respondent's property.
9. There is no property contiguous to the Respondent's property that is under the agricultural use
classification.
10. There is nothing that requires the Respondent to get permission from her sons, or her sons to
get permission from the Respondent, prior to cutting timber on the property. Pictures of the
property show underbrush which does not appear to be cut.
Furthermore, there is no written management plan or evidence of any management system on the
Respondent's property or in conjunction with any of the other family property.
11. The Respondent and/or her family would cut timber when they wanted to get some money,
but not at any specific time.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 12-60-2540 (Supp. 1995) authorizes the Division to hear this contested case
pursuant to Chapter 23 of Title I of the 1976 Code of Laws, as amended.
2. The Respondent's contention is that the property is agricultural property pursuant to Regulation
17-4 and pursuant to S.C. Code Ann. § 12-43-232(1)(a) (Supp. 1995).
3. An agricultural use classification is granted to agricultural real property "actually used for
agricultural purposes." S.C. Code Ann. § 12-43-220(d) (Supp. 1995). Furthermore, S.C. Code
Regs. 117-114 (1982) sets forth that " . . . in no event shall real property be classified as
agricultural real property when such property is not used for bona fide agricultural purposes. . . . "
4. Agricultural real property is "any tract of real property which is used to raise, harvest or store
crops, feed, breed or manage livestock, or to produce plants, trees, fowl or animals useful to man,
including the preparation of the products raised thereon for man's use and disposed of by
marketing or other means." S.C. Code Ann. § 12-43-230(a) (Supp. 1995).
5. In 1979, the General Assembly directed the South Carolina Department of Revenue and
Taxation ("Department") to promulgate a regulation designed to provide a more detailed
definition of "agriculture real property" and to exclude from the use assessment any real property
not used for a bona fide agricultural purpose. S.C. Code Ann. § 12-43-230(a) (Supp. 1995).
6. Pursuant to that mandate, Regulation 117-114 was promulgated. Regulation 117-114 provides
that while no single factor is controlling in determining if real property is used for a bona fide
agricultural purpose, consideration may be given to the nature of the terrain, the density of the
marketable product (timber, etc.) on the land, the past usage of the land, the economic
merchantability of the agricultural product, the use or not of recognized care, cultivation,
harvesting and like practices applicable to the product involved, and any implemented plans
thereof, and the business or occupation of the landowner. Real property is not used for
agricultural purposes unless the owner or lessee thereof has, in good faith, committed the
property to that use. Real property which is ostensibly used for agricultural purposes, and which
is, in reality, used for other purposes, is not agricultural real property. The agricultural use of the
property must be genuine in nature as opposed to sham or deception. S.C. Code Regs. 117-114
(1982).
7. Consideration of the above factors establishes that the Respondent's property is not used in
actively growing timber as required by 12-43-232(1)(a) and is not under a management system
with a tract of timberland which meets the minimum acreage requirement.
8. The taxable status of real property for a given year is to be determined as of December 31 of
the preceding tax year. S.C. Code Ann. § 12-37-900 (1976); Atkinson Dredging Company v.
Thomas, 266 S.C. 361, 232 S.E.2d 592 (1976).
9. The mere fact that Respondent's property was granted the agricultural use classification in past
years does not entitle it to such classification at the present time.
10. Of the 3.39 acres of the subject property, one acre should be classified as rental real property
because of the two mobile homes located thereon, and the remaining 2.39 acres should be
classified as residential real property. None of the subject property should be classified as
agricultural real property.
11. This Court declines to determine whether 12-43-232(1)(a) requires a common ownership of
property that is less than the minimum acreage requirement which is being combined with either
contiguous property or property under a same management system. Since this Court finds that
the property is not actively growing timber and is not under a management system, this issue does
not need to be decided by this Court.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED AND ADJUDGED that none of the Respondent's property designated as Tax Map
Number 4496-02-030 shall receive agricultural real property classification for the tax year 1995
and that one acre shall be classified as rental real property and 2.39 acres as residential real
property.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
September 9, 1996 |