CHARLES A. WEISS,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-10246
	)
PHILIP MUEHLHEAUSLER, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor, AFFIRMED, true value in money for the subject property for tax years 2003 and 2004 set at $819,400, assessed value of $155,680.

Complainant appeared by Counsel, Keith Kehrer, St. Louis, Missouri.

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

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

The Commission takes this appeal to determine (1) the true value in money for the subject property on January 1, 2003; and (2) whether there was an intentional plan by the assessing officials to assess the subject property at a ratio greater than the average assessment ratio for residential property in St. Louis County.

Complainant appeals, on the ground of overvaluation and discrimination, the decision of the St. Louis County Board of Equalization which sustained the valuation of the subject property. The Assessor determined an appraised value of $819,400 (assessed value of $155,680, as residential property). Complainant proposed a value of $679,500 (assessed value of $129,105), on the Complaint for Review of Assessment. A hearing was conducted on May 18, 2004, at the St. Louis County Government Center, Clayton, Missouri. The transcript of the hearing was received by the Commission on June 1, 2004.

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

Complainant testified in his own behalf. The following exhibits were offered into evidence on behalf of Complainant:

Exhibit A, Twenty-three photographs showing interior and exterior views of the subject house.

Exhibit B, An unsigned bid for repairs to the subject house for refinishing the top half story and space above the garage, and replacement of fascia on the front of the house.

Exhibit C, Bid proposal for painting of exterior of the subject house.

Exhibit D, Copy of a plat of subject subdivision, with subject property circled.

Exhibit E, Copy of a May 23, 1999 St. Louis Post-Dispatch newspaper article on road and bridge work on Highway I-64/40.

Exhibit F, County Comparables Spreadsheet, prepared by Complainant.

Exhibit G, Actual Comparables Spreadsheet, prepared by Complainant.

Exhibit H, Copy of a six page document prepared by Complainant which lists various properties by name of owner, address, general description, 2003 appraised values and percentage of increase or decrease from 2001-02 assessment cycle.

Exhibits A, B, C, D and E were received into evidence. Exhibit E was received over the objection of Counsel for Respondent. Exhibits F, G and H were objected to on the grounds of hearsay, lack of foundation, relevancy, no recognized methodology for valuation. The objections were sustained and Exhibits F, G and H were taken as an offer of proof on the issue of discrimination only.

The weight and probative value of each of Complainant=s exhibits are discussed infra, under DECISION.

Respondent placed into evidence the testimony of Mr. Arthur R. Froeckmann, Missouri State Certified Residential Real Estate Appraiser for St. Louis County. The appraiser testified as to his appraisal of the subject property. The Appraisal Report, Exhibit 1, of Mr. Froeckmann was received into evidence. Mr. Froeckmann arrived at an opinion of value for the subject property of $860,000 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.

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 4 Rolling Rock Lane, Ladue, Missouri. The property is identified by locator number 20L510021. The property consists of 1.86 of an acre lot improved by a two-story brick single-family structure of good quality construction. The house was built in 1965 and appears to be in average condition. There is no apparent evidence of any significant structural problems. The residence has a total of twelve rooms, which includes six bedrooms, five full and two half baths, and contains 5,201 square feet of living area. There is a full unfinished basement below the main structure. There is a two-story addition with no basement. The house has a part finished attic, two small porches, a large patio, wood deck, a portico and a four-car garage with a part finished attic area. There was no listing or sale of the property noted within three years prior to the tax date of January 1, 2003. Exhibit 1, p. 5.

3. There was no evidence of new construction and improvement from January 1, 2003, to January 1, 2004.

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, 2003, to be $679,500, as proposed in the Complaint for Review of Assessment, or in the range of $700,000 to $750,000 as offered as opinion by Complainant at hearing.

5. Complainant=s evidence was not substantial and persuasive to rebut the presumption of correct assessment by the Board and establish an intentional plan by the assessing officials to assess the subject property at a ratio greater than the average assessment ratio for residential property in St. Louis County.

6. 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 within a tenth of a mile to 1.3 miles of the subject. Each sale property sold at a time relevant to the tax date of January 1, 2003. The sale properties were similar to the subject in style, quality of construction, age, condition, room, bedroom and bathroom count, living area, location, site size and other amenities of comparability. Exhibit 1, pp. 6-8.

7. The comparables were described as follows:

Comparable 1 (15 Roan Lane - a tenth of a mile Southwest of the subject) sold in October 2002 for $837,500. This property consists of a 1.80 of an acre lot improved by a one and a half-story brick single-family structure of good quality construction. The house was built in 1969 and appears to be in average condition. There were no reported significant structural problems or deferred maintenance. The residence has a total of nine rooms, which includes three bedrooms, three full and three half baths, and contains 4,610 square feet of living area. There is a full basement, which has finished area. There is an attached three-car garage. The house has a small porch, a patio, a deck and in-ground swimming pool. Exhibit 1, p. 6.

Comparable 2 (34 Rolling Rock Court - a tenth of a mile West of the subject) sold in July 2001 for $833,000. This property consists of a 3.01 of an acre lot improved by a one and a half-story brick single-family structure of good quality construction. The house was built in 1969 and appears to be in average condition. The residence has a total of eleven rooms, which includes five bedrooms, five full and one half baths, and contains 4,746 square feet of living area. There is a full basement, with a small recreation room. There is an attached four-car garage. The house has small porches, a stoop and patio. Exhibit 1, p. 6.

Comparable 3 (1 Warridge Drive - 1.3 tenths of a mile Northwest of the subject) sold in April 2002 for $800,000. This property consists of a 3.20 of an acre lot improved by a two-story brick single-family structure of average quality construction. The house was built in 1981 and appears to be in average condition. The residence has a total of nine rooms, which includes four bedrooms, four full and one half baths, and contains 4,112 square feet of living area. There is a full basement, which has finished area. There is an attached three-car garage. The house has a front stoop and an in-ground swimming pool. Exhibit 1, p. 7.

8. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. All adjustments appear to be appropriate to bring the comparables in line with the subject for purposes of the appraisal problem. Exhibit 1, p. 8 & 9.

9. The net adjustments for Comparable 1 amounted to +$26,500 or 3.2% of the sales price. The net adjustments for Comparable 2 amounted to +$25,800 or 3.1% of the sales price. The net adjustments for Comparable 3 amounted to +$57,500 or 7.2% of the sales price. Exhibit 1, p. 8.

10. The adjusted sales prices for the comparables calculated to $864,000, $858,800 and $857,500, respectively. The appraiser concluded on a $860,000 value which calculated to a value per square foot of $165.35 compared with the sales prices per square foot of living area for the comparables of $181.67, $175.52 and $194.55. Exhibit 1, p. 8.

11. Respondent met the standard of clear, convincing and cogent evidence, under the provisions of Section 137.115, RSMo, to sustain the original valuation of $819,400, presumed to have been made by a computer, computer-assisted method or a computer program.

12. Respondent=s appraisal was accepted only to sustain the original assessment made by the Assessor and not for the purpose of raising the assessment above that value.

CONCLUSIONS OF LAW

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.

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).

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

Section 137.115, RSMo, 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 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.

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.

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).

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).

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).

The Respondent has imposed upon him by the provisions of Section 137.115.1, RSMo, the burden of proof to present clear, convincing and cogent evidence to sustain a valuation on residential property which is made by a computer, computer-assisted method or a computer program. There is a presumption in this appeal that the original valuation, which was sustained by the Board of Equalization, was made by a computer, computer-assisted method or a computer program. There was no evidence to rebut the presumption, therefore, in order to sustain the valuation of the subject property at $819,400, appraised value, Respondent=s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.

The statutory guidelines for evidence to meet the standard of clear, convincing and cogent include the following:

(1) The findings of the assessor based on an appraisal of the property by generally accepted appraisal techniques; and

(2) The purchase prices from sales of at least three comparable properties and the address or location thereof. As used in this paragraph, the word comparable means that:

(a) Such sale was closed at a date relevant to the property valuation; and

(b) Such properties are not more than one mile from the site of the disputed property, except where no similar properties exist within one mile of the disputed property, the nearest comparable property shall be used. Such property shall be within five hundred square feet in size of the disputed property, and resemble the disputed property in age, floor plan, number of rooms, and other relevant characteristics.

Section 137.115.1(1) & (2).

Clear, cogent and convincing evidence is that evidence which clearly convinces the trier of fact of the affirmative proposition to be proved. It does not mean that there may not be contrary evidence. Grissum v. Reesman, 505 S.W.2d 81, 85, 86 (Mo. Div. 2, 1974). The quality of proof, to be clear and convincing must be more than a mere preponderance but does not require beyond a reasonable doubt. 30 AmJur2d. 345-346, Evidence section 1167. AFor evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder=s mind is left with an abiding conviction that the evidence is true.@ Matter of O=Brien, 600 S.W.2d 695, 697 (Mo. App. 1980).

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, 2003. 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). See also, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003).

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).

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).

In any case in St. Louis County where the assessor presents evidence which indicates a valuation higher than the value finally determined by the assessor or the value determined by the board of equalization, whichever is higher, for that assessment period, such evidence will only be received for the purpose of sustaining the assessor=s or board=s valuation, and not for increasing the valuation of the property under appeal. Section 138.060, RSMo; 12 CSR 30-3.075.

Discrimination

In order to obtain a reduction in assessed value based upon discrimination, the Complainants must (1) prove the true value in money of their property on January 1, 2003. Koplar v. State Tax Commission, 321 S.W.2d 686, 690 (Mo. 1959); and (2) show an intentional plan of discrimination by the assessing officials resulting in an assessment of that property at a greater percentage of value than other property, generally, within the same class within the same taxing jurisdiction. Koplar, supra, at 695. Evidence of value and assessments of a few properties does not prove discrimination. Substantial evidence must show that all other property in the same class, generally, is actually undervalued. State ex rel. Plantz v. State Tax Commission, 384 S.W.2d 565, 568 (Mo. 1964). The difference in the assessment ratio of the subject property the average assessment ratio in the subject county must be shown to be grossly excessive. Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986). No other methodology is sufficient to establish discrimination. Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696 (Mo. 1958).

The evidence on the issue of fair market value presented by Complainant failed to meet the required standard of substantial and persuasive evidence. The owner=s opinion must be supported and validated by recognized and accepted appraisal methodologies in order to be given any probative weight. There is nothing in this record from which the Hearing Officer can determine any relevant and accepted methodology employed by Complainant to arrive at an opinion of value of $679,500, as asserted in the Complaint, or a fair market value of $700,000 to $750,000 testified to by Mr. Weiss during cross-examination.

In point of fact, but for a response to a question in cross-examination as to the subject property being worth less in 2003 than what it was purchased for in 1988, (Tr. 24, Lines 8-16) there is no opinion of value offered by Mr. Weiss in his testimony. There is certainly no evidence of Complainant having arrived at his opinion of value based upon any recognized approach to the valuation of real property. In Exhibit G, there is an estimate of value for the subject given of $725,000, however, the exhibit fails to demonstrate a proper sales comparison approach to arrive at value. See, discussion below, Exhibit G.

A taxpayer does not meet his burden if evidence on any essential element of his case leaves the Commission Ain the nebulous twilight of speculation, conjecture and surmise.@ See, Rossman v. G.G.C. Corp. of Missouri, 596 S.W.2d 469, 471 (Mo. App. 1980). The essential element in the pending appeal is quite simply the fair market value of the disputed property on January 1, 2003. Complainant=s evidence, due to its total failure to establish a valuation based upon any recognized appraisal methodology leaves the Hearing Officer totally in the Anebulous twilight of speculation, conjecture and surmise,@ if he were to conclude on a value as proffered by Complainant. Complainant=s opinion of value whether $679,500, $725,000 or $700,000 to $750,000 was not based upon proper elements or a proper foundation. Therefore, the opinion of value can be given no probative weight or value.

A review of the exhibits offered on behalf of Complainant demonstrates the lack of substantial and persuasive evidence on the core issue of fair market value.

Photographs of the property under appeal are always helpful to the Hearing Officer to gain a general understanding of the quality and general condition of the subject house. Such is the case with Exhibit A. However, photographs do not translate into market value.

For example, three of the photographs in Exhibit A show the results of a leaks in the basement wall. The pictures show that there is a seepage or leakage problem with the basement that would not be unusual or out of the ordinary for a basement constructed in 1965. However, there is absolutely no way in which the Hearing Officer can deduce from viewing the photographs exactly how this factor would impact on the market value of the subject property.

Whether the market would give a negative value of $100 or $1,000 for this as opposed to a sale if this matter had been corrected or did not exist is not established by Complainant. It is certainly a factor to be considered. However, simply because Complainant demonstrates the existence of this factor does not mean that Complainant has carried his burden on this point relative to the impact of value. Nor does presenting photographs shift to Respondent any burden of persuasion on this point. A similar discussion could be provided for each of the other items of deferred maintenance and repair represented by Complainant=s photographs.

Very simply, the photographs are relevant because they provide visual evidence as to the general condition of the subject property. They do not establish monetary value or the amount of monetary adjustment appropriate to any given sale comparable. Therefore, while they are helpful to understand the deferred maintenance of the subject, they do not establish fair market value.

Repair bids are, like photographs, generally helpful to gain a better understanding as to cost for needed repairs and deferred maintenance. Exhibit B provides cost for repair for refinishing work in the top half story of the subject, refinishing the area above the garage and replacing fascia on the front of the house. Exhibit C is a bid for exterior painting. While repair bids give a dollar and cents amount for the given repairs, that does not translate into market impact.

The appraisal problem in any valuation appeal before the Commission is to value the property as it existed on the relevant tax date, January 1, 2003 in this instance. Valuation is not determined by making a valuation of the property as if it was remodeled and renovated and then subtracting the cost for such remodeling and renovation. The market seldom if ever will actually pay back dollar for dollar the cost of remodeling or refinishing of a home or parts of it.

The bid amounts provide evidence of the cost for the stated repairs and correction of various items of deferred maintenance. Nevertheless, they do not establish the appropriate adjustment that could or should be applied to any comparable properties which did not have similar conditions of updating or correction of deferred maintenance. It is not the responsibility of the Hearing Officer to become the appraiser for either party and apply raw information to other evidence to establish value.

The estimates for repairs are simply not tied in any form or fashion to the critical issue of fair market value of the disputed property on January 1, 2003. The Exhibits simply provide costs to repair without the appropriate analysis as to how market value is impacted. This was the responsibility and burden of Complainant to carry. The appraisal issue is that the subject house has certain matters of deferred maintenance. These would have some impact upon market value. However, simply showing what the cost of repair for deferred maintenance fails to establish market value.

It appears that Complainant would simply take the appraised value of the subject property as originally determined by the Assessor and make some deduction based on the repair bids to arrive at an indicated value. The fatal problem with such an technique is that it is not the appropriate method to be employed to account for the deferred maintenance items. Complainant failed to establish the impact on market value due to the various items of deferred maintenance. It is not sufficient to simply present items of repair and cost of same. There must be an analysis to actual sales data to arrive at market value. Complainant did not do this, as he presented no sales data of comparable properties to which a costs for repair analysis could be made.

Exhibit D establishes the relative proximity of the subject to I-64/40 highway. It has relevance in this regard, but does not establish any monetary factor related to fair market value. The comparables utilized by Respondent=s appraiser are each located in a similar relation to the highway and therefore any potential adverse impact from traffic noise or possible construction related to expansion of the highway would likewise impact the three comparables so that no adjustments for this factor would be required for the location of the subject.

Exhibit E was received into evidence essentially as reflecting general public knowledge as to what the Hearing Officer should take official notice of concerning potential construction on I-64/40 highway. In point of fact the newspaper article does nothing to establish any point relevant to the issue of fair market value. As noted above (Exhibit D), the only comparable sale properties in evidence on this record are in the same relative location to the highway as the subject. However, more importantly, Complainant=s evidence does nothing to establish the dollar impact, if any on the subject due to its location. It is not enough for Complainant to raise the issue of location. There must be evidence and an appropriate analysis as to how location actually impacts value. If in point of fact the comparables that were utilized had been isolated from the impact of the highway and were completely different from the subject in this regard, then of course, this factor would have resulted in a downward adjustment to the comparables. However, such was not the case. Therefore, in the end result the location of the subject has no impact because the properties used for comparison share the same locational feature as the subject. Accordingly, Exhibits D and E have no real probative value or benefit.

Exhibit F purports to be a spreadsheet of comparables utilized by the County in appraising the subject property. None of the properties listed on the spreadsheet prepared by Complainant were utilized by Mr. Froeckmann in his appraisal. The document does not arrive at a valuation of the subject property reflective of the value proffered by Complainant. Therefore, there is no probative value to the exhibit. It was deemed irrelevant and was excluded from evidence.

Exhibit F represents the type of attempt that is often made by taxpayers in appeals before the Commission. Taxpayers feel that all that is necessary for them to prevail is to present some general comments, criticisms or discrepancies relative to the computer assisted mass valuation system. This misses the whole point. By statute there is no presumption that the value determined by the mass valuation method is correct. Therefore, it is generally a waste of time for taxpayers to attempt to disprove it.

Taking this type of approach to attempt to prove the computer-generated valuation to be in error usually means that the taxpayer fails to put forth any real evidence as to the market value of their home. Such as is the case in this instance. The Complainant, as the moving party, still has the burden to present substantial and persuasive evidence to establish fair market value. There is no burden to present opinions, hypothesis and theories as to the defects and weaknesses in the mass appraisal methodology.

Exhibit G is a listing of the nine properties in the subject subdivision. The spreadsheet prepared by the Complainant sets for the appraised values for each of the nine properties for 2002 and 2003 and gives the percentage of change for each property. There is no data which establishes that any of the nine properties have sold at a time relevant to the tax date of January 1, 2003. There are no adjustment to any of the alleged comparable properties to account for differences between each property and the subject. There is no evidence to establish sufficient education, training and experience in the appraisal or residential real estate to qualify the owner as an exper for the purpose of performing a sales comparison approach to value. Complainant simply inserted an estimate of value of $725,000 for the subject property in this spreadsheet.

Simply constructing a spreadsheet does not constitute the performance of a sales comparison analysis to arrive at an indicated value. The spreadsheet represented by Exhibit G was excluded from evidence on the issue of valuation due to the very simply fact that it is not a sales comparison approach. Nor does it represent any approach to value recognized by the Courts of this state or the Commission. As such it has no probative value.

Exhibit H consists of a listing of twenty-nine properties in the subject subdivision. This listing contains some basic information as to each of the properties. However, the information which Complainant apparently desired to share with the Commission related to the 2003 appraised values for each property by the Assessor and the percentage of increase or decrease in the value for each property from the 2001-02 assessment cycle. The exhibit was excluded from evidence on both the issue of valuation and discrimination. It was only received as an offer of proof as to Complainant=s theory of discrimination.

Exhibit H provides absolutely nothing in the way of market data form which a determination of the indicated value of the subject property could be made. In point of fact the sale of the property at 34 Rolling Rock (Respondent=s Comparable 2) was completely omitted by Complainant from Exhibit H. Respondent=s Comparable 1 was included, but only as listing the appraised value for 2003. The percentage of increase or decrease in appraised values from one assessment cycle to another is simply not a recognized method for the valuation of real property. Such listing of percentage of increases and decreases possess no probative evidence of fair market value.

Taxpayers often like to use percentages of increase and decrease to arrive at an average. However, all that such percentages establish is that an average is an average. This methodology is flawed form the outset due to the fact that there is no presumption that the valuations by the Assessor from the prior or current assessment cycles did in fact corrected establish fair market values. Therefore, if a given property was undervalued or overvalued in the prior assessment cycle its percentage of increase or decrease will be different from a property that was actually valued at or closer to fair market value.

When a taxpayer desires to utilize some innovative and creative method for the valuation of real property, the taxpayer has the burden to establish that the method which they have devised has been recognized and accepted for the appraisal of real property. No such showing was made on this record for Complainant=s averaging technique. The averaging of sales prices is a faulty procedure and is not recognized or accepted for appraisal of property before the Commission. Real Estate Valuation in Litigation, J. D. Eaton, M.A.I., American Institute of Real Estate Appraisers (1982), p.159. Averaging rates of increase or decrease, or averaging of appraised values is a technique that is simple and yields a concrete result - an average number. However, averaging of either sales prices, appraised values or percentages of increase or decrease are not approve, recognized or appropriate methods for the valuation of real estate.

Complainant failed to present an opinion of the fair market value of the property under appeal based upon a recognized appraisal methodology. The exhibits which were received into evidence, as well as those excluded upon objection, failed to lay the proper foundation of substantial and persuasive evidence to sustain the Complainant=s opinion of value. An appraisal of real estate problem, in the absence of an actual sale at a time relevant to the tax date, is always best addressed by the presentation of an appraisal. When that is not done, as in this case, the taxpayer runs the risk of not prevailing due to the simple fact of failing to meet their burden of proof.

Complainant Failed To Prove Discrimination

Where there is a claim of discrimination based upon a lack of valuation consistency, Complainant has the burden to prove the level of assessment for the subject property in 2003. This is done by independently determining the market value of the subject property and dividing the market value into the assessed value of the property as determined by the assessor=s office.

Complainants must then prove the average level of assessment for residential property in St. Louis County for 2003. This is done by (a) independently determining the market value of a representative sample of residential properties in St. Louis County; (b) determining the assessed value placed on the property by the assessor=s office for the relevant year; (c) dividing the assessed value by the market value to determine the level of assessment for each property in the sample; and (d) determining the mean and median of the results.

The difference between the actual assessment level of the subject property and the average level of assessment for all residential property, taken from a sufficient representative sample in St. Louis County must demonstrate a disparity that is grossly excessive. Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986).

Complainant=s discrimination claim fails because he failed to establish the market value of the subject property. Without establishing market value, it is not possible to establish the assessment ratio on the subject property. Without establishing the ratio, it cannot be establish that the taxpayer is being assessed at a higher percentage of market value that any other property.

However, even if Complainant had established the market value of the property under appeal, the discrimination claim would still fail because it was not demonstrated that a statistically significant number of other residential properties within St. Louis County are being assessed at a lower ratio of market value than the subject property. Complainant=s claim of discrimination is based upon twenty nine properties in the subject subdivision as listed in Exhibit H. Exhibit H fails to provide any market data to establish the fair market value of any of the properties. Nor does the exhibit establish any assessed values in order that the mean and median assessment ratios can be established. Therefore, it is impossible to make any calculation to ascertain that the subject property is being assessed at a ratio that demonstrates a disparity that is grossly excessive. Even assuming Exhibit H had established these factors, the selection of twenty-nine properties all located in a single subdivision fails to meet the criteria of having a random and statistically significant sample from throughout St. Louis County.

Because Complainant failed to establish the market value of the subject property and failed to establish the subject property is being assessed at a higher percentage of market value than a statistically significant number of other properties in St. Louis County, Complainant failed to establish discrimination.

Respondent presented substantial and persuasive evidence to establish a fair market value as of January 1, 2003 to be $819,400 for the subject property. Respondent=s appraiser developed an opinion of value relying upon an established and recognized approach for the valuation of real property, the sales comparison or market approach. The sales comparison approach is generally recognized to be the most reliable methodology to be utilized in the valuation of single family residences.

The adjustments made the Mr. Froeckmann were consistent with generally accepted guidelines for the appraisal of property of the subject=s type. The adjustments properly accounted for the various differences between the subject and each comparable. The net adjustments to the sale properties fell within a very narrow range from 3.1% to 7.2%. Even the gross adjustments were in an acceptable range from 6.1% to 20.9%. The indicated per square foot value of $165.35 fell below the range for the sale properties. All of these factors provide substantiation and justification for the conclusion of value reached by Mr. Froeckmann.

Respondent=s valuation provides the only opinion of value based upon and supported by a recognized and accepted appraisal approach. As such it is the only probative evidence of value in the present record. Mr. Froeckmann considered the overall condition of the subject property to be average for the general age of the subject house. The other properties were likewise deemed to be in average condition for their age.

Mr. Froeckmann did not make any specific adjustment for the various matters of deferred condition raised by Mr. Weiss. It was the opinion of the appraiser that the deferred maintenance was more cosmetic in nature in both the space above the garage and the top half story. Mr. Weiss disagreed. From the testimony and a review of the photographs, the Hearing Officer believes that the truth on this point most likely lies somewhere between cosmetic repair and total refinishing. As discussed above (See, Exhibits B & C - Repair and Renovation Bid), the Hearing Officer is unable, based upon the raw information for cost of refinishing, to conclude how the market would account for the deferred maintenance.

The Hearing Officer is unpersuaded that the cost for a total refinishing of the top half story and above garage space is reflective of the negative influence upon the fair market value of the subject home resulting for this deferred maintenance. Whether the market would recognize 25, 50 or 75 percent of the refinishing cost is completely up to speculation and conjecture at this point. It is the conclusion of the Hearing Officer that the condition existing in both of the areas which Complainant asserts require refinishing are not inconsistent with a home which was nearly 40 years old on tax date. In other words, some cracking of a sheetrock ceiling along tape lines would not be unusual or inconsistent with the 40 year old home like the subject. In like manner the other items of deferred maintenance of painting and fasca repair are consistent with the age of the Complainant=s home.

Complainant failed to meet the burden to present subtantial and persuasive evidence of the fair market value of the subject property. The opinion of value presented by Respondent=s appraiser was clear and convincing to establish a value of $819,400 as originally determined by the Assessor and sustained by the Board. Accordingly the Board=s valuation must be adffirmed.

The assessed valuation for the subject property as determined by the Assessor and sustained by the Board of Equalization for St. Louis County for the subject tax day is AFFIRMED.

The assessed value for the subject property for tax years 2003 and 2004 is set at $155,680.

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 July 9, 2004.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer