STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENERAL DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1353

) STATE OF FLORIDA, DEPARTMENT OF ) REVENUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held at 1300 Southeast First Notional Bank Building, Miami, Florida, at 1:00 P.M. on January 12, 1976, before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Susan W. Diner

Paul & Thomson

1300 Southeast First National Bank Building Miami, Florida 33131

For Respondent: Stephen E. Mitchell

Assistant Attorney General Department of Legal Affairs Tallahassee, Florida 32304

INTRODUCTION

This issue presented for decision in this cause is whether petitioner, General Development Corporation, is entitled to either a reduced assessment or an agricultural classification of its land for purposes of ad valorem taxation. More specifically, the issue is whether, pursuant to F.S. 193.122(1), the change made by the St. Lucie County Board of Tax Adjustment (BTA) of the Tax Assessor's denial of agricultural classification is legally sufficient or whether the evidence presented to the BTA was sufficient to overcome the assessor's presumption of correctness. It is the position of the petitioner that the property is being used for bona fide agricultural purposes, that the decision of the BTA is legally sufficient and that the evidence presented before the BTA was sufficient to overcome the assessor's presumption of correctness. Petitioner further contends that the assessors presumption of correctness attaches only to assessments, not to classifications, and that F.S. 193.461(4)(a)(4) is constitutionally infirm. Additionally, petitioner contends that the BTA not only reclassified the property as agricultural, but also reduced the valuation of the property based upon the actual character and use of the property. It is the position of the respondent, the Division of Ad Valorem Taxes, that the BTA's granting of an agricultural classification lacked legal sufficiency and was not

supported by competent and substantial evidence in the record so as to overcome the presumption of correctness given the tax assessor. It therefore, recommended that the action of the 1973 St. Lucie County BTA be invalidated and that the position of the assessor be affirmed.

In accordance with F.S. 193.122(1) and the case of Hollywood Jaycees v. State Department of Revenue, 306 So. 2d 109 (Fla. 1975), the hearing in this cause was limited to the scope of the record established before the St. Lucie County BTA.

FINDINGS OF FACT

Having heard oral argument on the issues and considered the record transmitted to the respondent by the BTA, it is found as follows:

1. Petitioner is the owner of all of Port St. Lucie section 46 as shown in Plat Book 16, page 30 of the Public Records of St. Lucie County, Florida.

   
   

2. For the 1973 tax year, petitioner timely filed its return to the St. Lucie County Tax Assessor for agricultural classification of its land.

   
   

3. On November 6, 1973, the tax assessor, James W. Bass, notified petitioner that its lands were not entitled to be classified as agricultural for the reason that said land was subdivided subsequent to the enactment of F.S.

   193.461 and hence the land was reclassified as nonagricultural, and was assessed at $358,400.00.

   
   

4. Thereafter, petitioner filed its petition with the BTA to contest the assessor's disapproval of its application for agricultural classification. A transcript of the proceedings before the BTA apparently does not exist. However, the minutes of the meeting reveals that the lessee of the subject property testified that he then had 300 head of cattle on the property, was planning to buy 500 more head when the price went down and that, if his lease were renewed for another five years, he planned to improve the tract and run 1500 head of cattle on the property. The BTA was further informed by the tax assessor that an agricultural classification was denied because part of the tract had a plat filed on it.

   
   

5. By an unanimous vote, the BTA granted the subject property an agricultural classification and reduced the assessment. Such action was based on the grounds that the property had been continuously used as agricultural property, that the lease was renegotiated, that the property was contingent with other property leased by the lessee had approximately 300 head of cattle on the property.

   
   

6. The Chairman of the BTA thereafter notified petitioner that it had granted the relief applied for and had directed the assessor to:

   
   

   1. assess the lands as agricultural zoned land; and

   2. adjust the assessed value of the property "to $43,010, which value represents a fair equalized assessment of the said property

      for the year 1973."

      
      

7. The BTA thereafter notified the respondent's Executive Director of the change and, by staff recommendation upon reconsideration, it was concluded that

   the evidence presented to the BTA was not sufficient to overcome the assessor's presumption of correctness. This conclusion was based upon the language of F.S. 193.461(4)(a)(4), and it was recommended that the action of the BTA be invalidated.

   
   

8. By joint stipulation following certain legal proceedings involving the procedures for review, the parties stipulated that this cause would be heard before the Division of Administrative Hearings, and the undersigned hearing officer was assigned to conduct the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

9. The issue of whether the change made in the tax assessor's roll by the BTA lacked legal sufficiency or whether the evidence presented was insufficient to overcome the assessor's presumption of correctness can be broken down into two subissues: did the BTA err in changing the amount of the assessment and did the BTA err in changing the classification of the subject property.

   
   

10. Taking the classification issue first, the tax assessor relied upon

    F.S. 193.461(4)(a)(4) in making his determination that the subject property was not eligible to be classified as agricultural lands for ad valorem tax purposes.

    That section provides that

    
    

    "The assessor shall reclassify the following lands as nonagricultural:...4. Land for which the owner has recorded a subdivision plat subsequent to the enactment of this law."

    
    

    In this case, there is no dispute over the fact that a subdivision plat was recorded on the property subsequent to the effective date of the statute quoted above. Citing the case of Interlachen Lake Estates v. Snyder, 304 So. 2d 433 (Fla. 1973), petitioner contends that the method of classification prescribed by

    F.S. 193.461(4)(a)(4) is arbitrary, unreasonable and not related to the actual character and use of the property being assessed. In addition, petitioner contends that said section is an unconstitutional denial of equal protection of the laws in that it unjustifiably discriminates between property actually being used for agricultural purposes based upon whether or not a subdivision plat has been filed and the date of the filing of such plat.

    
    

11. The undersigned hearing officer cannot ignore the clear language of 193.461(4)(a)(4), nor can she make a determination of its constitutional validity. An administrative agency may not rule upon the constitutionality of statutes, the validity of which must be assumed until a judicial declaration to the contrary. The statute in question is clear and unambiguous, and is not couched in language creating a mere presumption which may be rebutted by referring to the factors listed in F.S. 193.461(3)(b). The facts showing that a subdivision plat was filed on the subject property subsequent to the effective date of the statute, the undersigned has no alternative but to affirm the respondents recommendation to invalidate the classification change of petitioners property made by the BTA, inasmuch as said change lacks legal sufficiency.

    
    

12. This then brings us to the second issue: did the BTA err in reducing the amount of the assessment from $358,000.00 to $43,010.00? As discussed above, the BTA had no authority to classify the lands as agricultural due to 193.461(4)(a)(4). However, it could, pursuant to the factors listed in F.S. 193.011, have arrived at a valuation which would be similar to the valuation of

    land classified as agricultural and assessed pursuant to factors listed in F.S. 193.461(6)(a). See Op. Atty. Gen. 071-85; Op. Atty. Gen. 071-273; and 193.461(6)(b) which mandates an assessment under 193.011 when a proper application for agricultural assessment has not been made. In the present case, this was not lawfully done by the BTA. F.S. 1932.011 lists eight factors to be considered in arriving at just valuations, and all eight are to be considered, not just one or two. Town of Bay Harbor Island v. Lancelot Associates, 243 So. 2d 437 (Fla. App. 3rd, 1971). A tax assessment is presumed to correct. Thus, it is assumed that the assessor, in arriving at his assessment of the land in question, properly took it account the eight factors listed in 193.011. In order to successfully challenge an assessment, its prima facie correctness must be affirmatively overcome by appropriate and sufficient allegations and proofs which exclude every reasonable hypothesis of legal assessment. Overstreet v.

    Brickell Lum Corporation, 262 So. 2d 707 (Fla. App. 3rd, 1972).

    
    

13. It appears from the minutes and records of the proceedings before the BTA that, if indeed its change in valuation was based upon the factors listed in 193.011, it considered only two, or possibly three, of the factors listed therein, namely subsections (2), (3) and possibly (6). In fact, from the reasons listed by the BTA in support of its change, it appears that the factors taken into consideration were those contained in 193.461(3)(b) pertaining to classification, rather than those contained in 193.461(3)(b) pertaining to classification, rather than those contained in either 193.011 or 193.461(6)(a), both of which apply to assessments. Thus, there was not sufficient evidence to overcome the assessor's presumption of correctness in assessing the subject property.

    
    

14. In summary, the undersigned must assume the constitiutional validity of 193.461(4)(a)(4), there being no judicial declaration to the contrary. Said statute containing clear and unambiguous language, there is no room for interpretation and the BTA clearly erred in granting petitioner an agricultural classification of its lands. While the BTA could have arrived at a valuation less than the assessors by utilizing all the factors set forth in 193.011 and by finding that the assessors presumption of correctness had been rebutted, it did not do so. Rather, it appears that the reevaluation was based upon several factors listed in 193.461(3)(b), pertaining to the classification of land as agricultural. In short, the presumption of correctness attaching to the assessment was not overcome by proof which excludes every reasonable hypothesis of legal assessment.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the St. Lucie County Board of Tax Adjustment in granting an agricultural classification and in reducing the assessment of petitioner's property for the tax year 1973 be invalidated.

Respectfully submitted and entered this 19th day of February, 1976, in Tallahasse, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

J. Ed Straughn Executive Director Department of Revenue The Capital

Tallahassee, Florida 32304

Susan Diner, Esquire Paul & Thomson

1300 Southeast First National Bank Building

Miami, Florida

Stephen E. Mitchell, Esquire Assistant Attorney General Office of Legal Affairs

The Capitol

Tallahassee, Florida 32304

Docket for Case No: 75-001353

Orders for Case No: 75-001353