ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. § 12-60-2540. Ralph Johnson (“Petitioner”) seeks review of the Hampton County Tax Appeals Board’s (“Board”) determination dated December 18, 2006 which denied Agricultural Use Value to properties owned by Petitioner, specifically tax map sheet (“TMS”) numbers 204-02-11-005; 119-02-02-006; 198-09-02-008; and 089-00-00-012, for the 2006 tax year.
Pursuant to notice to the parties, a hearing was held on July 12, 2007 at the offices of the ALC in Columbia, South Carolina. Both parties were in attendance. Evidence was introduced and testimony was given. After carefully weighing all of the evidence, I find and conclude that the properties listed above qualify for the special assessment as agricultural use for the 2006 property tax year.
FINDINGS OF FACT
Having observed the witnesses and all the evidence and having closely passed upon their credibility, and having taken into consideration the respective burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of evidence:
1. Petitioner resides in Charleston County, South Carolina and is the owner of ten parcels of real property in Hampton County, South Carolina, totaling approximately 260 acres. Petitioner harvests trees on these parcels of land for profit. After trees reach 40 to 60 years of age, they may be harvested for profit. Petitioner does not use these parcels of land for any other purpose. Petitioner does not receive any income from these properties except during the years he harvests trees.
2. Four of these ten parcels, TMS numbers 204-02-11-005; 119-02-02-006; 198-09-02-008; and 089-00-00-012, have been denied Agricultural Use valuation by the Board. Each of these four parcels consists of less than 5 acres.
3. TMS# 204-02-11-005 consists of approximately .96 acres. This tract has a mix of hardwood and pine trees on it, none of which were planted. He purchased this property approximately 10 years ago. A home formerly existed on this parcel, however, it has been only woodland for many years.
4. TMS# 119-02-02-006 consists of approximately 2.1 acres. It also has mostly hardwoods on it, with very few pine trees, none of which have been planted. Petitioner purchased this property approximately 30 years ago. Petitioner has harvested timber from this tract one time since he purchased it.
5. TMS# 198-09-02-008 consists of approximately 1.1 acres. It too has mostly large hardwoods on it, none of which were planted.
6. TMS# 089-00-00-012 consists of approximately .554 acres and has mostly pine trees and some small hardwoods on it, none of which were planted. Petitioner has owned this tract for less than 10 years. Petitioner does allow a person who resides on property to the north of this parcel to use a very small strip of it for her yard space. However, that is a very small amount of the total parcel.
7. Petitioner does not own any tracts adjoining TMS#’s 204-02-11-005; 119-02-02-006; 198-09-02-008; and 089-00-00-012.
8. Two other parcels of land owned by Petitioner in Hampton County, South Carolina, one consisting of approximately 70 acres and the other of approximately 28 acres, have been designated as timberland and granted the special assessment for agricultural use by the Hampton County Tax Appeals Board.
9. Petitioner developed a timber Management Plan (“Plan”) in 2002 for the ten parcels of timberland he owns in Hampton County, South Carolina, which includes the four parcels at issue in this matter. This Plan was produced with the assistance of the South Carolina Department of Natural Resources, the Natural Resource Conservation Service, and the Clemson Extension Service. The Plan includes procedures for thinning, harvesting, and otherwise ensuring that the timberland is properly maintained. Petitioner updates this Plan as changes occur on the properties. The South Carolina Commission of Foresters assists Petitioner with his Plan when needed. A copy of his Plan was previously provided to the Hampton County Assessor.
10. Petitioner graduated from Clemson University in 1961 with a Bachelor of Science degree in Agriculture. He also completed graduate courses at the University of North Carolina and the Citadel in food processing and management. In 2005 he was certified as a Fire Manager in the State of South Carolina, which he uses in the developing and carrying out burning plans. He is also a certified Land Surveyor. He previously worked as a district conservationist with the United States Department of Agriculture, Soil Conservation Service for over twenty-five years.
11. In addition to the properties owned in Hampton County, Petitioner owns over 100 acres of timberland in Clarendon County, South Carolina and approximately 25 acres in Colleton County, South Carolina. Most of these parcels are less than 5 acres, and all have been designated as timberland and qualify for the agricultural use exemption, except for one parcel in Colleton County that consists of one acre. Petitioner has a separate Plan for properties in each county and the Plans are updated as changes occur.
12. For tax year 2006, Petitioner applied for and the Assessor’s Office denied the special assessment for agricultural property for TMS#’s 204-02-11-005; 119-02-02-006; 198-09-02-008; and 089-00-00-012, asserting that the size of the tracts did not meet requirements and that they were not used for bona fide agricultural purposes. Thereafter, Petitioner appealed the denial of the agricultural assessment by the Assessor to the Board. The Board denied Agricultural Use valuation to TMS#’s 204-02-11-005; 198-09-02-008; and 089-00-00-012 because those parcels are located in a residential area. The Board denied Agricultural Use valuation to TMS# 119-02-02-006 because it is zoned by the Town of Hampton as commercial property. A request for a contested case hearing before this Court followed.
CONCLUSIONS OF LAW
Based on the foregoing, I conclude as a matter of law:
1. The Administrative Law Court has jurisdiction of this matter pursuant to S.C. Code Ann. § 12-60-2540.
2. The standard of proof in proceedings before the ALC is a preponderance of the evidence. Anonymous v. State Bd. Of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).
3. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”).
4. A court construing a statute must first seek to ascertain and effectuate legislative intent. Koenig v. S.C. Dep’t of Public Safety, 325 S.C. 400, 480 S.E.2d 98, 99 (Ct. App. 1996). The cardinal rule of statutory construction is to give words used in a statute their plain and ordinary meaning without resort to subtle or forced construction. Id. The language must be read to harmonize its subject matter with its general purpose. Id. “In construing statutory language, the statute must be read as a whole, and sections which are part of the same general statutory law must be construed together and each one given effect, if it can be done by any reasonable construction.” Higgins v. State, 307 S.C. 446, 449, 415 S.E.2d 799, 801 (1992). However, our courts have also held that statutes, as a whole, must receive practical, reasonable, and fair interpretation, consonant with the purpose, design, and policy of lawmakers. TNS Mills, Inc., v. S.C. Dep’t of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998); Gildstrap v. South Carolina Budget and Control Bd., 310 S.C. 210, 423 S.E.2d 101 (1992).
5. S.C. Code Ann. § 12-43-200(d) (2000) provides the assessment ratios for agricultural real property.
6. S.C. Code Ann. § 12-43-230(a) (2000) provides in part that:
..."agricultural real property" shall mean 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. It includes but is not limited to such real property used for agriculture, grazing, horticulture, forestry, dairying and mariculture. In the event at least fifty percent of a real property tract shall qualify as "agricultural real property", the entire tract shall be so classified, provided no other business for profit is being operated thereon....
(Emphasis added).
7. 27 S.C. Code Regs. 117-1780 further provides a more detailed definition of “agricultural real property,” which excludes from the use assessment any real property not used for a bona fide agricultural purposes. Regulation 17-1780.1 provides that, “[r]eal property is not used for agricultural purposes unless the owner... has, in good faith, committed the property to that use. Real property which is ostensibly used for agricultural purposes, but 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.”
8. While no single factor is controlling in determining if real property is used for a bona fide agricultural purposes, consideration may be given to:
(1) The nature of the terrain;
(2) The density of the marketable product (timber, etc.) on the land;
(3) The past usage of the land;
(4) The economic merchantability of the agricultural product;
(5) The use or not of recognized care, cultivation, harvesting and like practices applicable to the product involved, and any implemented plans thereof; and
(6) The business or occupation of the landowner...however, the fact that the tract may have been purchased for investment purposes does not disqualify it if actually used for agricultural purposes.
27 S.C. Code Regs. 117-1780.1.
9. In cases in which the real property is committed to uses in addition to agricultural uses, the agricultural activity must comprise the most significant use of the property in order for it to be classified as agricultural real property. 27 S.C. Code Regs. 117-1780.1.
10. S.C. Code Ann. § 12-43-232 provides:
In addition to all other requirements for real property to be classified as agricultural real property, the property must meet the following requirements:
(1)(a) If the tract is used to grow timber, the tract must be five acres or more. Tracts of timberland of less than five acres which are contiguous to or are under the same management system as a tract of timberland which meets the minimum acreage requirement are treated as part of the qualifying tract. Tracts of timberland of less than five acres are eligible to be agricultural real property when they are owned in combination with other tracts of nontimberland agricultural real property that qualify as agricultural real property. For the purposes of this item, tracts of timberland must be devoted actively to growing trees for commercial use.
(Emphasis added.)
The Board denied Petitioner’s application for special assessment as agricultural use property for TMS#’s 204-02-11-005; 119-02-02-006; 198-09-02-008; and 089-00-00-012 due to three of the properties being in a residential area and one being zoned for commercial use. However, zoning is not a determining factor in whether or not a property qualifies for the special assessment as agricultural use property. In this case, all four parcels are solely woodland, none of which was planted by Petitioner. Further, Petitioner only uses the properties to produce and harvest timber. He does not use these tracts for any other purpose. In fact, Petitioner receives income from these properties only during years when he harvests timber. Therefore, I conclude that Petitioner has in good faith committed these properties to bona fide agricultural use.
Furthermore, although a Management Plan is not required by South Carolina law for a property to qualify as timberland, and therefore as agricultural property, Petitioner developed a Plan in 2002 for all ten parcels of land that he owns in Hampton County, South Carolina, including the four at issue in this case. The Plan, produced with the assistance of several state and federal agencies, includes procedures for thinning, harvesting, and otherwise ensuring that the timberland is properly maintained between harvests. Petitioner has an extensive background in agriculture, and worked for over twenty-five years for the United States Department of Agriculture. In addition, Petitioner owns numerous parcels of land in other counties which he also uses for the production and harvesting of timber.
The Assessor initially denied Petitioner’s application for agricultural use valuation for these four properties finding that the size of the tracts were too small, because they were all less than five acres, and that they were not used for bona fide agricultural purposes. However, because Petitioner has developed a Plan for all parcels of timberland he owns in Hampton County, and at least two of those parcels are larger than five acres and have qualified for the special assessment as agricultural properties, all other tracts under five acres that are part of the same Plan also qualify as agricultural property. Therefore, pursuant to Section 12-43-232, the tracts designated as TMS#’s 204-02-11-005; 119-02-02-006; 198-09-02-008; and 089-00-00-012 all qualify as agricultural property even though they are less than five acres each because they are part of the same Plan as two other qualifying tracts owned by Petitioner.
In addition, with regard to TMS# 204-02-11-005, the Assessor also initially denied Petitioner’s application for agricultural use valuation in part because a home-site formerly existed on the property. Although past usage of the land is a factor that may be taken into consideration in determining whether real property is used for bona fide agricultural purposes, it is not a controlling factor in the determination, only one of many that may be considered. For at least the last ten years, while Petitioner owned TMS# 204-02-11-005, it has only been used as woodland and Petitioner has used it solely for the growing and harvesting of trees for timber.
The Assessor also initially denied the special assessment for TMS# 089-00-00-012 because Petitioner allows a neighboring landowner to use a small strip of the parcel for her yard space. However, is of no consequence. Pursuant to Section 12-43-230(a), if at least fifty percent of a tract qualifies as agricultural property, the entire tract qualifies. In this case, over fifty percent of the tract is used for the agricultural purpose of producing and harvesting timber. Accordingly, the entire tract qualifies as agricultural property.
Based upon the above, this Court concludes that the tracts designated as TMS#’s 204-02-11-005; 119-02-02-006; 198-09-02-008; and 089-00-00-012 qualify for the special assessment as agricultural property for the tax year 2006.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the tracts designated as TMS#’s 204-02-11-005; 119-02-02-006; 198-09-02-008; and 089-00-00-012 qualify for special assessment as agricultural property for the tax year 2006.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Administrative Law Judge
January 16, 2008
Columbia South Carolina
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