ORDERS:
ORDER AND DECISION
BACKGROUND
This is a case brought by the Charleston County Assessor ("Assessor") against Madeline M. and
Dudley H. Bowen, Jr. on an Appeal filed by Petitioner from the Charleston County Board of
Assessment Appeal. The case concerns whether the Respondents' property should be classified as
agricultural for the property tax year 1995. The Respondents applied for and were denied
agricultural assessment by the Assessor's Office. A contested case hearing was held on August 14,
1996, at the office of the Administrative Law Judge Division ("ALJD").
ISSUE PRESENTED
Whether the 14-acre portion of the subject parcel should qualify for Agricultural Use in total or in
part for tax year 1995?
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 Respondents are the owners of property located on Russell Creek Drive in Charleston
County, South Carolina. The parcel of real estate consists of 61.5 acres, of which 41.15 acres are
considered marsh. Six of the remaining acres have been designated timberland agricultural use.
The Respondent argues 14 acres should receive the Agricultural Use designation because the
property is pasture land. The subject property bears TMS #95/066-00-00-047.
3. The property is not farm land to any extent. There is no evidence of animals grazing upon the
land, grass planted for animal grazing or even a fence to restrict the movement of animals off the
property. From every indication, it appears that the property is as it is classified; vacant land lying
dormant.
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. 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. . . . "
3. 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).
4. South Carolina Code Ann. § 12-43-232(3)(e) provides an exemption for non-timberland tracts
that have been classified as Agricultural Real Property provided they were so classified as such in
1994 and were owned by the same family for ten (10) years immediately preceding 1994. This
Section however requires that in addition to the above requirements, the non-timberland tract
must also meet any other requirements in Title 12, Article 3, Chapter 43 of the South Carolina
Code.
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 establish that the Respondents' property was not used for
bona fide agricultural purposes.
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 Respondents' property was granted the agricultural use classification in past
years does not entitle it to such classification at the present time.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the Respondents' property designated as Tax Map Number #95/066-00-00-047
shall not receive agricultural use assessment for the tax year 1995.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
September 12, 1996 |
