ANTHONY C. NAPOLI,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 02-10017
	)
PHILIP A. MUEHLHEAUSLER,	)
ACTING ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

HOLDING

Decision of the St. Louis County Board of Equalization reducing the assessment made by the Assessor, SET ASIDE, Hearing Officer finds true value in money for the subject property for tax year 2002 to be $74,000, assessed value of $14,060.

Complainant appeared pro se.

Respondent appeared by Counsel, Paula J. Lemerman, Associate County Counselor.

Case heard and decided by Chief Hearing Officer, W. B. Tichenor.

ISSUE

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2002.

SUMMARY

Complainant appeals the decision of the St. Louis County Board of Equalization which reduced the valuation of the subject property. The Assessor determined an appraised value of $76,210 (assessed value of $14,480, as residential property). The Board reduced the value to $70,475 (assessed value of $13,390). Complainant proposed a value of $50,000 (assessed value of $9,500) on the Complaint for Review of Assessment. Respondent proposed a value of $74,000 (assessed value of $14,060). A hearing was conducted on May 13, 2003, at the St. Louis County Government Center, Clayton, Missouri.

The Hearing Officer, having considered all of the competent evidence upon the whole record, enters the following Decision and Order.

Complainant's Evidence

Complainant appeared and testified that his opinion of value for the property was $50,000. His opinion was based upon structural damage to the garage and a sunken floor in the garage. The basement windows and door need to be replaced. The roof is 20 years old and the furnace is 40 years old. Exhibit A an estimate for concrete restoration was received into evidence on behalf of Complainant.

Respondent's Evidence

Respondent placed into evidence the testimony of Mr. John Rebsamen, appraiser for St. Louis County. The appraiser testified as to his appraisal of the subject property. The Appraisal Report, Exhibit 1, of Mr. Rebsamen was received into evidence. The appraiser arrived at an opinion of value for the subject property of $74,000 based upon a sales comparison approach to value. In performing his sales comparison analysis, the appraiser relied upon the sales of three properties which he deemed to be comparable to the subject property.

FINDINGS OF FACT

1. Jurisdiction over this appeal is proper. Complainant timely appealed to the State Tax Commission from the decision of the St. Louis County Board of Equalization.

2. The subject property is located at 9561 Lydell Dr., St. Louis County, Missouri. The property is identified by locator number 26J510612. The property consists of a .17 of an acre lot. The lot is improved by a one-story, masonry and vinyl, single-family structure of average quality construction. The house was built in 1941 and appears to be in fair condition. The residence has a total of five rooms, which includes two bedrooms and one bath, and contains 864 square feet of living area. There is a full basement. The subject has an attached one-car garage.

Foundation and settlement conditions were note at the date of inspection by the appraiser. The foundation is concrete block, and from an exterior inspection, bowing, settlement and deterioration was noted at the rear and sides of the foundation. Settlement was also noted at the rear slab of the garage floor. The rear entry door and sliding patio door currently lack stairs to the yard. A ledger board is attached, however, the owner has no plans to add stairs or a deck at the back of the house at this time. There have been some updates of newer vinyl siding, vinyl windows, exterior doors and garage door. Exhibit 1, p. 5.

3. There was no evidence of new construction and improvement from January 1, 2001, to January 1, 2002. The property is valued for its fair market value as of January 1, 2002, under the economic conditions existing as of January 1, 2001 which is the assessment date for the 2001-02 assessment cycle.

4. Complainant's evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish the true value in money as of January 1, 2001, to be $50,000, as proposed.

5. The properties relied upon by Respondent's appraiser in performing his appraisal were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located less than a mile of the subject, all on the subject street. Each sale property sold at a time relevant to the tax date of January 1, 2001. The sale properties were similar to the subject in age, quality of construction, condition, room count, bath count, living area, lot size and other amenities which must be considered for comparability.

6. The comparables were described as follows:

Comparable 1 (9553 Lydell Dr. - 50 yards southeast of the subject) sold in August 2000 for $91,500. This property consists of a .12 of an acre lot improved by a one-story, vinyl, single- family structure of average quality construction. The house was built in 1942 and appears to be in average condition. The residence has a total of five rooms, which includes two bedrooms, one bath, and contains 864 square feet of living area. There is a full basement and an attached one- car garage. Exhibit 1, pp. 6-7.

Comparable 2 (9542 Lydell Dr. - 80 yards southeast of the subject) sold in September 2000 for $80,000. This property consists of a .12 of an acre lot improved by a one-story, frame, single-family structure of average quality construction. The house was built in 1940 and appears to be in fair to average condition. The residence has a total of four rooms, which includes two bedrooms, one bath, and contains 877 square feet of living area. There is a full basement, which has 300 square feet of recreation area, and an attached one-car garage. Exhibit 1, pp. 6-7.

Comparable 3 (9513 Lydell Dr. - 175 yards southeast of the subject) sold in April 2000 for $87,000. This property consists of a .15 of an acre lot improved by a one-story, vinyl, single- family structure of average quality construction. The house was built in 1941 and appears to be in average condition. The residence has a total of four rooms, which includes two bedrooms, one bath, and contains 864 square feet of living area. There is a full basement, which has 420 square feet of recreation area, and an attached one-car garage. Exhibit 1, pp. 6-7.

7. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. The adjustments were appropriate to account for the difference between each comparable and the subject. The net percentages of adjustment were within an appropriate range considering all relevant factors of comparison.

8. The net adjustments for Comparable 1 amounted to -$14,250 or -15.57% of the sales price. The net adjustments for Comparable 2 amounted to -$6,000 or -8% of the sales price. The net adjustments for Comparable 3 amounted to -$14,500 or -16.67% of the sales price.

9. The adjusted sales prices for the comparables calculated to $77,250, $74,000 and $72,500, respectively. The appraiser concluded on a $74,000 value which calculated to a value per square foot of $85.65 compared with the sales prices per square foot of living area for the comparables of $105.90, $91.22 and $100.69.

10. Respondent did not have to meet a standard of clear, convincing and cogent evidence in this appeal, under the provisions of Section 137.115, RSMo, as he was not seeking to sustain the original valuation presumed to have been made by a computer, computer-assisted method or a computer program.

11. Respondent's evidence met the standard of substantial and persuasive to establish the value of the subject, as of January 1, 2001, to be $74,000.

Jurisdiction

The Commission has jurisdiction to hear this appeal and correct any assessment which is shown to be unlawful, unfair, arbitrary or capricious. Article X, section 14, Mo. Const. of 1945; Sections 138.430, 138.431, RSMo. The hearing officer shall issue a decision and order affirming, modifying or reversing the determination of the board of equalization, and correcting any assessment which is unlawful, unfair, improper, arbitrary, or capricious. Section 138.431.4, RSMo.

Board of Equalization Presumption

There is a presumption of validity, good faith and correctness of assessment by the County Board of Equalization. Hermel, Inc. v. STC, 564 S.W.2d 888, 895 (Mo. banc 1978); Chicago, Burlington & Quincy Railroad Co. v. STC, 436 S.W.2d 650, 656 (Mo. 1968); May Department Stores Co. v. STC, 308 S.W.2d 748, 759 (Mo. 1958).

The presumption in favor of the Board is not evidence. A presumption simply accepts something as true without any substantial proof to the contrary. In an evidentiary hearing before the Commission, the valuation determined by the Board, even if simply to sustain the value made by the Assessor (which is not presumed to be correct), is accepted as true only until and so long as there is no substantial evidence to the contrary.

No Presumption Assessor's Value Correct

There is no presumption that the assessor's valuation is correct. Section 138.431.3, RSMo.

Standard for Valuation

Section 137.115, RSMo 1994, requires that property be assessed based upon its true value in money which is defined as the price a property would bring when offered for sale by one willing or desirous to sell and bought by one who is willing or desirous to purchase but who is not compelled to do so. St. Joe Minerals Corp. v. State Tax Commission, 854 S.W.2d 526, 529 (Mo. App. E.D. 1993); Missouri Baptist Children's Home v. State Tax Commission, 867 S.W.2d 510, 512 (Mo. banc 1993). It is the fair market value of the subject property on the valuation date. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, 897 (Mo. banc 1978).

Market Value

Market value is the most probable price in terms of money which a property should bring in competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeable and assuming the price is not affected by undue stimulus.

Implicit in this definition is the consummation of a sale as of a specific date and the passing of title from seller to buyer under conditions whereby:

1. Buyer and seller are typically motivated.

2. Both parties are well informed and well advised, and each acting in what they consider their own best interests.

3. A reasonable time is allowed for exposure in the open market.

4. Payment is made in cash or its equivalent.

5. Financing, if any, is on terms generally available in the Community at the specified date and typical for the property type in its locale.

6. The price represents a normal consideration for the property sold unaffected by special financing amounts and/or terms, services, fees, costs, or credits incurred in the transaction.

Real Estate Appraisal Terminology, Society of Real Estate Appraisers, Revised Edition, 1984; See also, Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers, 1982, pp. 4-5; Property Appraisal and Assessment Administration, International Association of Assessing Officers, 1990, pp. 79-80; Uniform Standards of Professional Appraisal Practice, Glossary; Exhibit 1, p. 3.

Duty to Investigate

In order to investigate appeals filed with the Commission, the Hearing Officer has the duty to inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property. The Hearing Officer's decision regarding the assessment or valuation of the property may be based solely upon its inquiry and any evidence presented by the parties, or based solely upon evidence presented by the parties. Section 138.430.2, RSMo.

Weight to be Given Evidence

The Hearing Officer is not bound by any single formula, rule or method in determining true value in money, but is free to consider all pertinent facts and estimates and give them such weight as reasonably they may be deemed entitled. The relative weight to be accorded any relevant factor in a particular case is for the Hearing Officer to decide. St. Louis County v. Security Bonhomme, Inc., 558 S.W.2d 655, 659 (Mo. banc 1977); St. Louis County v. STC, 515 S.W.2d 446, 450 (Mo. 1974); Chicago, Burlington & Quincy Railroad Company v. STC, 436 S.W.2d 650 (Mo. 1968).

Trier of Fact

The Hearing Officer as the trier of fact may consider the testimony of an expert witness and give it as much weight and credit as he may deem it entitled to when viewed in connection with all other circumstances. The Hearing Officer is not bound by the opinions of experts who testify on the issue of reasonable value, but may believe all or none of the expert's testimony and accept it in part or reject it in part. St. Louis County v. Boatmen's Trust Co., 857 S.W.2d 453, 457 (Mo. App. E.D. 1993); Vincent by Vincent v. Johnson, 833 S.W.2d 859, 865 (Mo. 1992); Beardsley v. Beardsley, 819 S.W.2d 400, 403 (Mo. App. 1991); Curnow v. Sloan, 625 S.W.2d 605, 607 (Mo. banc 1981).

Opinion Testimony by Experts

If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert on that subject, by knowledge, skill, experience, training, or education, may testify thereto.

The facts or data upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reliable, the facts or data need not be admissible in evidence. Section 490.065, RSMo; Courtroom Handbook on Missouri Evidence, Wm. A. Schroeder, Sections 702-505, pp. 325-350; Wulfing v. Kansas City Southern Industries, Inc., 842 S.W.2d 133 (Mo. App. E.D. 1992).

Complainant's Burden of Proof

In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2001. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897. Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975).

Respondent's Burden of Proof

Respondent, when advocating a value different from that determined by the original valuation or a valuation made by the Board of Equalization, must meet the same burden of proof to present substantial and persuasive evidence of the value advocated as required of the Complainant under the principles established by case law. Hermel, Cupples-Hesse, Brooks, supra.

Owner's Opinion of Value

The owner of property is generally held competent to testify to its reasonable market value. Boten v. Brecklein, 452 S.W.2d 86, 95 (Sup. 1970). The owner's opinion is without probative value however, where it is shown to have been based upon improper elements or an improper foundation. Shelby County R-4 School District v. Hermann, 392 S.W.2d 609, 613 (Sup. 1965).

Methods of Valuation

Missouri courts have approved the comparable sales or market approach, the cost approach (replacement or construction) and the income approach as recognized methods of arriving at fair market value. St. Joe Minerals Corp. v. STC, 854 S.W.2d 526, 529 (App. E.D. 1993); Aspenhof Corp. v. STC, 789 S.W.2d 867, 869 (App. E.D. 1990); Quincy Soybean Company, Inc., v. Lowe, 773 S.W.2d 503, 504 (App. E.D. 1989), citing Del-Mar Redevelopment Corp v. Associated Garages, Inc., 726 S.W.2d 866, 869 (App. E.D. 1987) and State ex rel. State Highway Comm'n v. Southern Dev. Co., 509 S.W.2d 18, 27 (Mo. Div. 2 1974).

DECISION

Complainant failed to prove the value advocated by substantial and persuasive evidence. The bid for concrete restoration (Exhibit A) received into evidence related to more construction than correcting the drainage problem and settling relative to the garage. It included removal of the existing driveway and walks. In any event, the estimate fails to establish that without this work the subject property is only worth the $50,000 advocated by the owner. Consequently, the owner's opinion is not based on property elements or foundation and as such has no probative value.

Respondent's evidence presents substantial and persuasive evidence to establish the value of $74,000. Mr. Rebsamen had the benefit of three sales of properties all on the subject street. All of the comparables were of the same general age, style and size of the subject. The biggest single adjustment was to address the matter of the generally inferior condition of the subject house. The appraiser adjusted two of the comparables an amount of $15,000 due to their superior condition to the subject. The other comparable need to be adjusted only $7,500 because it suffered from some of the same general condition problems as the subject. The appraiser appropriately recognized the condition problems of the subject and adjusted accordingly.

ORDER

The assessed valuation for the subject property as determined by the Board of Equalization for St. Louis County for the subject tax day is SET ASIDE.

The assessed value for the subject property for tax year 2002 is set at $14,060.

A party may file with the Commission an application for review of this decision within thirty (30) days of the mailing of such decision. The application shall contain specific grounds upon which it is claimed the decision is erroneous. Failure to state specific facts or law upon which the appeal is based will result in summary denial. Section 138.432, RSMo 1994.

If an application for review of this decision is made to the Commission, any protested taxes presently in an escrow account in accordance with this appeal shall be held pending the final decision of the Commission. If no application for review is received by the Commission within thirty (30) days, this decision and order is deemed final and the Collector of St. Louis County, as well as the collectors of all affected political subdivisions therein, shall disburse the protested taxes presently in an escrow account in accord with the decision on the underlying assessment in this appeal. If any or all protested taxes have been disbursed pursuant to Section 139.031(8), RSMo, either party may apply to the circuit court having jurisdiction of the cause for disposition of the protested taxes held by the taxing authority.

Any Finding of Fact which is a Conclusion of Law or Decision shall be so deemed. Any Decision which is a Finding of Fact or Conclusion of Law shall be so deemed.

SO ORDERED June 3, 2003.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Chief Hearing Officer