South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Harold W. Jones vs. Charleston County Assessor

AGENCY:
Charleston County Assessor

PARTIES:
Petitioner:
Harold W. Jones

Respondent:
Charleston County Assessor

In Re: TMS. No.: 217-00-00-086
 
DOCKET NUMBER:
04-ALJ-17-0217-CC

APPEARANCES:
Harold W. Jones, CPA for the Petitioner

Joseph S. Dawson, III, Esquire and Bernard S. Ferrarra, Jr., Esquire, for the Respondent
 

ORDERS:

FINAL ORDER

STATEMENT OF THE CASE

 

This is a case brought by Harold W. Jones concerning whether the Petitioner’s property should be classified as agricultural property for the tax year 2000. The Petitioner applied for and was denied agricultural assessment by the Assessor's Office for this property in Charleston County. Following an appeal to the Charleston County Board of Assessment Appeals, the Petitioner was again denied the agricultural assessment. Jones then requested a hearing before the Administrative Law Court to consider this issue. A hearing on this matter was held on February 9, 2005 at the offices of the Court in Columbia, with the parties represented as indicated above. This case was consolidated for trial with four related appeals: 04-ALJ-17-218, 04-ALJ-17-219, 04-ALJ-17-220, and 04-ALJ-17-2221 which all deal with properties in Longcreek Plantation seeking the agricultural assessment. For the reasons stated below, the decision of the Charleston County assessor denying the agricultural designation is affirmed.

 

ISSUE

 

Do the provisions of S.C. Code Ann. §§ 12-43-220 (d) (1) et seq.(Supp. 2002) require the Assessor to classify the Petitioner’s property as agricultural property?

 

DISCUSSION

 


The Petitioner owns 21.02 acres in Longcreek Plantation on Wadmalaw Island in Charleston County. He claims that tract meets all of the requirements of the referenced Code section to be classified as agricultural. While it does meet the acreage requirement, it is, however, subject to the restrictive covenants of the subdivision which limit the harvesting of trees over six inches in diameter or six feet in height without the approval of the Architectural Control Committee of the Longcreek Plantation Homeowners Association Board. Furthermore, the covenants prohibit commercial activity in Longcreek Plantation. In addition, there was no evidence presented that the Petitioner had cultivated or managed his property for timber production. An estimated value letter from a timber company was presented, but no evidence of management, cultivation, or harvesting. Based on these facts, the assessor’s determination should stand.

 

FINDINGS OF FACT

 

Based upon the written evidence submitted by the parties, and taking into consideration the burden of persuasion, I make the following Findings of Fact by a preponderance of evidence:

 

1. The property is located in Charleston County, South Carolina, and is identified on the Charleston County Tax Map as Tax Map Number 217-00-00-086.

 

2. The Petitioner timely filed an application for agricultural assessment. The Assessor thereafter disapproved the agricultural use classification.

 

3. The Petitioner filed a written objection with the Assessor and appealed the matter to the Charleston County Board of Assessment Appeals. The Assessment Appeals Board heard this matter and concluded that subject property should be classified as residential.

 

4. The Petitioner has appealed the decision of the Charleston County Board of Assessment Appeals.

 

5. The Petitioner is the owner of a parcel of real estate consisting of 21.02 acres located at Lot 15 Longcreek Road in Longcreek Plantation on Wadmalaw Island, Charleston County.

 

6. The property is unimproved land and is heavily wooded. One half of the 21.02 acres is covered in mature hardwoods. Although the hardwoods suffered some damage from Hurricane Hugo, they are merchantable. The other half of the property is covered in native, free-growth pines, sweetgums and wax myrtles. Some of the pines are of merchantable size, and the wax myrtles are also available to harvest for sale.

 

7. Although the Petitioner presented a letter from Tyler Woodland Management Company on the value of the timber, no timber management plan was submitted as evidence.

 

8. The Restrictive Covenants for Longcreek Plantation which are filed in Charleston County Deed Book 0196 at Page 001 specifically limit the use of the property to “residential purposes and no business or business activity shall be carried on upon any Lot at any time.. . .” Art. II, No. 1. In addition, “trees which have a diameter or in excess of six (6”) inches measured six (6’) feet above ground level. . . shall not be intentionally destroyed or removed except with the prior approval, in writing, of the Architectural Control Committee.” Art. II, No. 14.


9. The Petitioner introduced several affidavits which purported to show that the restrictive

covenants for Longcreek Plantation were not as restrictive as they may appear. While

that may be the board’s practice, this court is bound by the language in the recorded covenants, which states that trees over six inches in diameter may not be cut without the approval of the Architectural Control Committee and that the use of the property is limited to residential use. I find the restrictive covenants to be clear on their face.

 

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 (2002) authorizes the Court to hear this contested case pursuant to Chapter 23 of Title I of the 1976 Code of Laws, as amended.

 

2. The Petitioner’s contention is that the property is agricultural property pursuant to S.C. Code Ann. § 12-43-220 (2002).

 

3. An agricultural use classification is granted to agricultural real property “actually used for agricultural purposes.” S.C. Code Ann. § 12-43-220(d) (2002). Furthermore, S.C. Code Ann. 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) (2002).

 

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) (2002).

 


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 following factors:

(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,

(7) cultivation, harvesting and like practices applicable to the product involved, and any implemented plans thereof, and

(9)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 a sham or deception. S.C. Code Ann. Regs. 117-114 (1982).

7. “In interpreting a statute, this Court's primary function is to ascertain the intent of the legislature.” Whitner v. South Carolina, 328 S.C. 1, 6, 492 S.E.2d 777, 779 (1997). “The interpretation of a term set forth in a statute should support the statute and should not lead to an absurd result. . . . Further, in interpreting a statute, one does not look merely at a particular clause in which a word may be used, but rather looks at the word and its meaning in conjunction with the purpose of the whole statute, and in light of the object and policy of the law.” South Carolina Coastal Council v. South Carolina State Ethics Comm’n, 306 S.C. 41, 45-46, 410 S.E.2d 245 (1991). “The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible. [citations omitted]. All rules of statutory construction are subservient to the one that legislative intent must prevail if it reasonably can be discovered in the language used, and that language must be construed in the light of the intended purpose of the statute. Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994).” City of Camden v. Brassell, 326 S.C. 556, 486 S.E.2d 494, 495 (Ct. App. 1997).

 

8.                  Finally, S.C. Code Ann. § 12-43-232(1)(a) (2002) states:

 

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 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.)

 

I find that the validly recorded restrictive covenants prohibit commercial activity on this property. In addition, the trees of merchantable size could not be harvested without the prior written approval of the Architectural Control Committee. Even assuming, arguendo that the restrictive covenants did not bar the commercial use of the property, the classification as agricultural property would still fail. There was no timber management plan submitted, no copies of checks from timber companies, and no evidence at all of a plan to harvest the timber. In this case, the trees are growing of their own volition and are not being “managed” commercially. Consideration of the above factors establishes that the Petitioner’s property is not used in actively growing timber for commercial use as required by S.C. Code Ann. § 12-43-232(1)(a) and is not under a proper management system. The property may not be used for commercial purposes and the trees may not be harvested without prior approval. Accordingly, the property does not qualify for the agricultural use classification.


The Petitioner failed to prove, by a preponderance of the evidence, that the Assessor’s classification of this property is incorrect.

 

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

 

ORDERED that the 21.02 acres of land of the Petitioner’s property designated as Tax Map Number 217-00-00-086 shall not receive agricultural real property classification for the tax year 2000.

 

AND IT IS SO ORDERED.

 

 

 

_________________________________

Carolyn C. Matthews

Administrative Law Judge

 

October 19, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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