ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me upon request of Robert E. Bruce ("Taxpayer or Petitioner"),
pursuant to S. C. Code Ann. §12-60-2540 (A) (Supp. 1995), contesting the decision of the
Greenville County Assessor ("Assessor"), as affirmed by the the Greenville County Board of
Assessment of Appeals ("Board"), denying the classification of certain real properties for
agricultural use for the tax year 1995. After having exhausted all prehearing remedies with the
Assessor and the Board, the Taxpayer is now seeking a contested case hearing before the
Administrative Law Judge Division ("Division"). After notice to the parties, a contested case
hearing was held at the Division offices in Columbia, South Carolina on September, 11, 1996.
Any issues raised in the proceedings or hearing of this case but not addressed in this Order are
deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a
prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).
After considering all the evidence and testimony, I conclude that none of the properties qualify
for agricultural use classification for the tax year 1995.
ISSUE
Are Taxpayer's properties entitled to an agricultural use classification and assessment for the tax
year 1995?
POSITION OF THE PARTIES
Appearing at the hearing and testifying on his own behalf is the Taxpayer. His position is that
certain parcels of real property, which have been owned by him for approximately eight years, are
part of a number of separate tracts he owns in both Spartanburg, Pickens and Greenville counties,
all of which are utilized by him under a management plan for the growing and harvesting of
timber. He argues that since each of these particular parcels subject to this action have received
agricultural use classification and assessment for each of the years he has owned them prior to the
tax year 1995, they should receive the same classification and assessment for the tax year 1995.
Further, he feels it would be inequitable for the Assessor to deny this classification for these
properties while allowing it for other similar properties both he and the Lake Lanier Investment
and Development Company own which are also located in this development.
The Assessor takes the position that the evidence does not establish that any of these separate
parcels, each containing less than five acres, are part of an agricultural use management plan,
since there is no written plan incorporating them within a management program, no seedlings
have been planted on them, no harvesting has occurred nor has any money been generated from
any sale of trees from them. Further, the parcels are located within a development which was
mapped and surveyed for residential usage. Also, the subdivision is zoned residential.
FINDINGS OF FACT
Based upon the evidence presented, I make the following findings of fact, taking into
consideration the burden on the parties to establish their respective cases by a preponderance of
the evidence and taking into account the credibility of the witnesses:
1. This Division has personal and subject matter jurisdiction
2. Notice of the date, time, place and nature of the hearing was timely given to both parties.
3. Taxpayer is the owner of the following real properties located in Greenville County, which are
the subject of this action:
a. Tax Map No. O624.07-06-053.00, Lot 1264, Caledonia Road, Lake Lanier
Development, Greenville County, S. C. Derivation: Deed Book 1596 at page 0130, dated
December 29, 1994.
b. Tax Map No. 0624.02-05-045.00, Lot 289, Lennox Road, Lake Lanier Development,
Greenville County, S. C. Derivation: Deed Book 1318 at page 0859, dated March 7, 1988.
c. Tax Map No. 0624.05-02-059.00, 5 Lots containing 0.9 acres, Dunraven & Carnegie
Avenues, Lake Lanier Development, Greenville County, S. C. Derivation: Deed Book
1343 at page 0956, dated November 11, 1988.
d. Tax Map No. 0624.07-06-049.00, 2 Lots, Caledonia Road, Lake Lanier Development,
Greenville County, S. C. . Derivation: Deed Book 1429 at page 0976, dated March 19,
1991.
e. Tax Map No. 0624.03-09-007.00, Lot 432, Glenolden Drive, Lake Lanier Development,
Greenville, S. C. Derivation: Deed Book 1343 at page 0950, dated November 11, 1988.
f. Tax Map No. 0624.03-04-028.00, Lot 1082, West Lake Shore Drive, Lake Lanier
Development, Greenville County, S. C. Derivation: Deed Book 12384 at page 0675, dated
October 5, 1990.
g. Tax Map No. 0624.02-05-131.00, Lots 159, 160 & 161, Clarke Road and Butter Street,
Lake Lanier Development, Greenville County, S. C. Derivation: Deed Book 1381 at page
0629, dated December 5, 1989.
h. Tax Map No. 0624.03-11-010.00, Lot 468 East Lake Shore Drive, Lake Lanier
Development, Greenville County, S. C. Derivation: Deed Book 1319 at page 0249, dated
March 1, 1988.
I. Tax Map No. 0624.04-07-018.00, Lots 748 and 749, Unnamed Road, Lake Lanier
Development, Greenville County, S. C. Derivation: Deed Book 1429 at page 0976, dated
March 19, 1991.
j. Tax Map No. 0624.04-03-019.00, Lot 607, fronting on an unnamed road connecting
East Lake Shore Drive and Glenolden (Drive) Circle, Lake Lanier Development, Greenville
County, S. C. Derivation: 1429 at page 0976, dated March 19, 1991.
k. Tax Map No. 0624.05-08-029.00, Lot 1736, West Lake Shore Drive, Lake Lanier
Development, Greenville County, S. C. Derivation: Deed Book 1368 at page 0859, dated
July 31, 1989.
4. Each of the lots described in finding of fact no. 3. b. through 3.k. were classified for
agricultural use and assessment purposes by the Assessor's office for the year 1994 and preceding
years when owned by Taxpayer. The testimony of the Taxpayer of their agricultural use
classification for the years he owned these properties prior to 1995 was unrefuted by the
Assessor.
5. All of the lots described in finding of fact no. 3 are located near Lake Lanier; however, none
front on the lake. Each of the lots are small in size, front on a roadway and are part of a large
number of lots platted around Lake Lanier as a part of the Lake Lanier Development. This
development is located near the border of North Carolina and South Carolina; the town of Tryon,
North Carolina, is very close to the subdivision.
6. For the year 1995, the Assessor removed the agricultural use classification from all the
properties listed in finding of fact no. 3. The date of the Assessor's Valuation Notice was June
22, 1995 and Taxpayer requested the Assessor's office for a review on August 10, 1995.
7. A review conference was held by the Assessor with the Taxpayer on August 28, 1995. When
the Assessor informed Taxpayer of her decision to affirm the denial of the agricultural use
classification for the year 1995, Taxpayer requested a hearing before the Board on September 10,
1995. A hearing was held by the Board on May 23, 1996. The Board's determination dated May
23, 1996 affirmed the Assessor's denial of agricultural use classification.
8. Taxpayer has not cut any trees for commercial purposes nor received any income from timber
harvesting on any of these parcels since he acquired them.
9. None of the parcels or combination of lots as described in finding of fact no. 3.a. through 3. k.
contain five acres.
10. Taxpayer has no written management plan for the planting, growing and harvesting of
commercial trees or timber on these parcels.
11. No Christmas trees have been planted or harvested on the parcels nor are they being utilized
for that purpose by the Taxpayer.
12. Taxpayer consults with registered foresters from time to time for advice but has none on
retainer nor has hired such to assist him on a permanent basis in managing these parcels or any of
his properties for timber growing and harvesting purposes. Taxpayer performs his own forestry
management, checking his properties several times annually. They consist of these parcels, a one
half interest with his father in a two hundred (200) acre plus tract in Pickens County, a 4.85 acre
tract in Spartanburg County and sixteen (16) contiguous lots on Carnegie Road which are also in
the Lake Lanier Development. All of the properties excluding the parcels subject of this action,
receive the agricultural use valuation and assessment.
13. No residences or buildings of any kind are constructed on any of these parcels.
14. Taxpayer presented no evidence of having obtained a farm identification number from the
Agriculture Stabilization and Conservation Service (ASCS), no receipts indicating the purchase of
herbicides, seeds or seedlings for usage on the properties, nor any documentation to prove the
furnishing of seedlings and planting of such on the properties.
15. While there is some merchantable timber growing on these properties, no proof has been
presented to the court of any plan for these parcels to be incorporated into a forestry management
plan or system. Further, the trees on the properties are reflective of natural reproduction versus a
planted tree farm.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact and the applicable law, I conclude, as a matter of law, the
following:
1. S.C. Code Ann. § 12-60-2540 (Supp. 1995) authorizes the South Carolina Administrative Law
Judge Division to hear this contested case pursuant to Chapter 23 of Title I of the 1976 Code, as
amended.
2. S. C. Code Ann. Sect. 12-37-90(Supp. 1995) granted authority to the former South Carolina
Tax Commission to alter values set by the Assessor on real property.
3. S.C. Code Ann. § 12-4-30(D) (Supp. 1995) provides that an Administrative Law Judge, after
February 1, 1995, shall hear all contested cases as defined by S.C. Code Ann. § 1-23-310 (Supp.
1994) which were previously heard by the South Carolina Tax Commission.
4. S.C. Code Ann. § 12-37-90 (Supp. 1995) states that all counties shall have a full-time assessor,
whose responsibility is appraising and listing property. Further, the assessor shall:
a) Maintain a continuous record of recorded deed sales transactions, building permits, tax
maps and other records necessary for a continuing reassessment program;
b) Diligently search for and discover all real property not previously returned by the owners
or agents thereof or not listed for taxation by the county auditor and list such property for
taxation, in the name of the owner or person to whom it is taxable;
c) When values change, reappraise and reassess any or all real property so as to reflect its
proper valuation in light of changed conditions, except for exempt property and real
property required by law to be appraised and assessed by the commission, and furnish a list
of these assessments to the county auditor;
d) Determine assessments and reassessments of real property in such a manner that the ratio
of assessed value to fair market value shall be uniform throughout the county.. . .
5. S.C. Code Ann. §§ 12-43-300 and 12-60-2510 through 12-60-2530 (Supp. 1995) provide the
procedure whereby a taxpayer, upon receipt of a notice from the assessor of the valuation and
assessment placed on his property, may file written notice of objection to the valuation and
assessment within certain time frames. Failure to serve the written notice of objection within the
statutory time limitations is a waiver of the owner's right to appeal. If the objection is timely filed,
the owner may have a conference with the assessor and, if still aggrieved, may appeal that
decision to the Board of Assessment Appeals.
6. An assessor's valuation is presumed correct with the burden being on the property owner to
disprove the assessor's determination. 84 C.J.S. Taxation § 410 (1954).
7. The Legislature, in S.C. Code Ann. § 12-37-930 (Supp. 1995), has decided how real property
must be valued:
"All real property shall be valued for taxation at its true value in money which in all cases
shall be held to be the price which the property would bring following reasonable exposure
to the market, where both the seller and buyer are willing, are not acting under compulsion,
and are reasonably well informed as to the uses and purposes of which it is adapted and for
which it is capable of being used..."
8. Fair market value is the measure of true value for taxation purposes. Lindsey v. S.C. Tax
Comm'n, 302 S.C. 274, 395 S.E.2d 184 (1990).
9. South Carolina Code Ann. § 12-43-220(d)(1) (Supp. 1995) provides for an agricultural use
classification on real property "which is actually used for agricultural purposes." S.C. Code Ann.
§12-43-230(a) (Supp. 1995) defines "agricultural real property" as:
"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 for marketing or
other means . . . The Commission shall provide by regulation for more detailed definition of
'agricultural real property' consistent with the general definition set forth in this section, to
be used by county assessors in determining entitlement to special assessments under this
article."
10. The former South Carolina Tax Commission, now the Department of Revenue, pursuant to
authority conferred by S.C. Code Ann. § 12-43-230(a), has further defined agricultural real
property by issuance of South Carolina Code Ann. Reg. 117-114 (1992). As defined in that
regulation, agricultural real property means "a tract of real property which is used for agricultural
purposes." The regulation continues, in pertinent part, as follows:
"In no event shall real property be classified as agricultural real property when such
property is not used for bona fide agricultural purposes. 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 deceptive.
The following factors shall be considered by county assessors in determining whether the
tract in question is bona fide agricultural real property: (These factors are not, however,
meant to be exclusive, and all relevant facts must be considered)." (Emphasis added.)
1. The nature of the terrain;
2. The density of the marketable product (timber, etc,) on the lands;
3. The past usage of the land;
4. The economic merchantability of the agricultural products;
5. The use or not of recognized care, cultivation, harvesting and like practices applicable
to the product involved, and any implemented plans thereof;
6. The business or occupation of the landowner or lessee, however, the fact that the tract
may have been purchased for investment purposes does not disqualify it if actually used for
agricultural purposes.
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..."
11. S. C. Code Ann. Sect. 12-43-220(d)(3)(Supp. 1995), requires that owners of real property,
which is classified for agricultural use for the tax year 1994, are to make written application to
the appropriate county assessor to maintain the agricultural use classification for the property tax
years after 1994. No additional annual filing is required while the use of the property remains
bona fide agricultural and the ownership remains the same. The failure to apply within the time
frame established by the statute constitutes a waiver of the special assessment for that year.
12. The taxable status of real property for a given year is to be determined as of December 31st 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).
13. The mere fact that Taxpayer's property was granted agricultural use classification in previous
years does not entitle it to such for the tax year 1995. Statutory law requires Taxpayer to reapply
for such classification in 1995.
14. The Assessor has the authority to redetermine the applicability of the agricultural use
classification for these parcels. The Assessor is statutorily the party with authority to grant the
classification in the first instance. Likewise, in the absence of a prohibiting statute, the authority
to grant a status carries with it the authority to remove the status. See 53 C.J.S. Licenses § 51
(1987).
In this case, the Assessor made a review of the lots owned by Taxpayer for which the
agricultural use classification was requested. As a result of the review, the Assessor determined
that the properties no longer qualify for agricultural use classification under applicable law. The
highest and best use for these lots is for residential purposes. There is no evidence of any
planting of trees or seedlings, nor of any cultivation or harvesting of timber on them. The
economic utility of planting and/or harvesting such small lots or tracts of land is minimal. Further,
they are very small in size. Although the size of a parcel of land is not a sufficient basis to
arbitrarily deny agricultural use classification, such can be considered in conjunction with all the
other factors in reaching a final determination . There is not sufficient evidence to show that the
Taxpayer has a timber forestry program, plan or system which included these parcels. Based
upon the evidence presented, the Taxpayer has not met his burden of proof and the Assessor, as
affirmed by the Board properly denied the agricultural use classification for these lots.
Although Taxpayer offered into evidence the tax map numbers and acreage amount of other lots
or tracts within the Lake Lanier Development which he alleged were "comparables" or properties
which the Assessor had qualified and approved for agricultural use classification, no
documentation or proof was placed into the record to support such. Accordingly, Taxpayer's
argument that "conformity and equity" were applicable to sustain his argument for agricultural use
classification for his parcels fails for lack of any proof.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Taxpayer's applications for agricultural use classification for the property tax
year 1995 on properties identified as Greenville County Tax Map Numbers O624.07-06-053.00,
0624.02-05-045.00, 0624.05-02-059.00, 0624.07-06-049.00, 0624.03-09-007.00,
0624.03-04-028.00, 0624.02-05-131.00, 0624.03-11-010.00, 0624.04-07-018.00,
0624.04-03-019.00, 0624.05-08-029.00, are denied.
AND IT IS SO ORDERED.
_______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
September 18, 1996 |