C. Harvey & Donna Kassebaum v. Muehlheausler

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 $635,400, assessed value of $120,730.

The Commission takes this appeal to determine the true value in money for the subject property on January 1, 2003.

Complainants appeal, on the ground of overvaluation, 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 $635,400 (assessed value of $120,730, as residential property). Complainants proposed a value of $583,000 (assessed value of $110,770). A hearing was conducted on May 18, 2004, 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.

Ms. Kassabaum (Complainant) testified on behalf of Complainants. Ms. Kassabaum testified that her opinion of value for the property as of January 1, 2003, was $583,000. This opinion of value was based upon her review of assessment records and sales prices of properties on the market. Exhibits A through P were offered into evidence.

Exhibits C, E, F, G, J and M were objected to by Counsel for Respondent. The objections were on grounds of relevancy and lack of foundation. The objections were sustained and the exhibits were excluded.

Objections were made to Exhibits B and O. The objections were taken under advisement to be ruled on in this Decision. The Hearing Officer has divided Exhibit O into exhibits O-1, O-2, O-3 and O-4 for purposes of discussing their probative worth and effect, if any in this Decision.

Exhibits are described in detail, ruling on objections taken under advisement, basis for exclusion is set forth and probative weight given to exhibits is discussed in this Decision. See, DECISION, Complainants= Exhibits, infra.

Respondent placed into evidence the testimony of Mr. Craig Whyman, appraiser for St. Louis County. The appraiser testified as to his appraisal of the subject property. The Appraisal Report, Exhibit 1, of Mr. Whyman was received into evidence. Mr. Whyman arrived at an opinion of value for the subject property of $660,000 based upon a sales comparison approach to value. In performing his sales comparison analysis, the appraiser relied upon the sales of four properties which he deemed to be comparable to the subject property.

Counsel for Respondent offered into evidence Exhibit 2. Complainant objected to the exhibit. The objection was sustained as to that portion of the listing data which related to the description of the subject property being offered for sale in 2004. The 2004 listing contained information reflecting updating to the subject house that had occurred after January 2004 which cannot be considered for the valuation of the property as it existed on January 1, 2003 and January 1, 2004. The remainder of Exhibit 2 consisting of MLS listing sheets on the subject property for 2000 and 2003 was received into evidence.

1. Jurisdiction over this appeal is proper. Complainants 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 39 Godwin Lane, Ladue, Missouri. The property is identified by locator number 21L140254. The property consists of .88 of an acre lot improved by a one and a half-story vinyl sided, with some brick, single-family structure of average to good quality construction. The house was built in 1948 and appears to be in average condition. The residence has a total of twelve rooms, which includes five bedrooms, four and a half baths, and contains 4,143 square feet of living area. There is a full basement with finish and a half bath. The house has an attached three-car garage. The kitchen was updated in the early 1980's and the second floor bath was also remodeled during that time. Exhibit 1, p. 5.

3. The subject property was placed on the market under several listings during 2000 and 2003. Specifically there are the following sales listings and information: Exhibit 2.

A. 08/31/00 - Listing Price $750,000. You must see this spacious home to fully appreciate it. Features include a library, 2 family rooms, 4 fireplaces, updated kitchen with separate breakfast room, beautiful hardwood floors, crown cornice and moldings, lots of built-ins, walk-out LL, W/Rec room, 3 car garage and much more.

B. 09/15/03 - Listing Price $715,000. Wonderful family neighborhood in most convenient location that has been completely renovated adding a 2nd floor. The 2nd floor is ideal for returning students, in-laws and nannies. Spacious entertaining space that includes a large living room, fireplace, family room, paneled library and a finished lower level.

C. 05/12/03 - Listing Price $719,000. Wonderful family neighborhood in most convenient location. This home has been owned by the same family for 3 generations. The 2nd floor was completed at a later time and is ideal as living quarters for returning students or in-laws or nannies. Spacious entertaining space that includes a large living room, fireplace, family room and paneled library.

D. 03/19/03 - Listing Price $723,900. Great family neighborhood, great family home. Beautifully constructed with several suites for privacy or nannies or just visitors. A story and a half hides behind this sprawling ranch. It has been lovingly maintained so that all of its unusual features, from ribbon mahogany library, five fireplaces, and three family rooms to slate roof and copper gutters are ready for you to enjoy.

4. There was no evidence of new construction and improvement from January 1, 2003, to January 1, 2004. Updating and renovations which occurred after January 1, 2004, are not relevant as to the valuation of the subject proper for the 2003 assessment cycle.

5. Complainants= 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 $583,000, as proposed.

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 on the same street as 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. 5-8.

Comparable 1 (37 Godwin Lane - Next door South of the subject) sold in March 2003 for $689,000. This property consists of a 1.14 acre lot improved by a one-story brick single-family structure of good quality construction. The house was built in 1942 and appears to be in good condition. The residence has a total of eleven rooms, which includes four bedrooms, three baths, and contains 3,399 square feet of living area. There is a partial basement and an attached three-car garage. Updates consist of a remodeled kitchen and all baths.

Comparable 2 (40 Godwin Lane - Across the street 2nd property Northeast of the subject) sold in March 2003 for $690,000. This property consists of a .89 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 1948 and appears to be in very good condition. The residence has a total of eleven rooms, which includes four bedrooms, three baths, and contains 3,846 square feet of living area. There is a no basement. There is an attached two-car garage. Updates consist of a remodeled kitchen and the first floor bath. A half story was added in 1994.

Comparable 3 (38 Godwin Lane - Across the street Northeast of the subject) sold in August 2003 for $655,000. This property consists of a .21 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 1941 and appears to be in good condition. The residence has a total of eleven rooms, which includes four bedrooms, three and a half baths, and contains 3,344 square feet of living area. There is a full basement and an attached two-car garage. Updates consist of the kitchen and master bath in 2000.

Comparable 4 (52 Godwin Lane - a block Northeast of the subject) sold in March 2000 for $610,000. This property consists of a .79 of an acre lot improved by a one and a half-story frame single-family structure of good quality construction. The house was built in 1940 and appears to be in average condition. The residence has a total of ten rooms, which includes four bedrooms, three and a half baths, and contains 3,716 square feet of living area. There is a partial basement and a two-car basement garage.

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.

9. The net adjustments for Comparable 1 amounted to -$25,000 or 3.7% of the sales price. The net adjustments for Comparable 2 amounted to -$25,000 or 3.7% of the sales price. The net adjustments for Comparable 3 amounted to -$4,100 or 0.6% of the sales price. The net adjustments for Comparable 3 amounted to +$55,000 or 9% of the sales price.

10. The adjusted sales prices for the comparables calculated to $663,400, $664,800, $650,900 and $665,000, respectively. The appraiser concluded on a $660,000 value which calculated to a value per square foot of $159.30 compared with the sales prices per square foot of living area for the comparables of $202,71, $179.41, $195.87 and $164.16.

11. Respondent=s evidence met the standard of clear, convincing and cogent evidence in this appeal, under the provisions of Section 137.115, RSMo, to sustain the original valuation of $635,400 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.

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:

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 $635,400, 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:

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, Complainants 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.

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 Commission is without authority to amend the grounds alleged in the Complaint to include an additional ground for appeal. Daly v. State Tax Commission, 120 S.W.3d 262 (Mo. App. E.D. 2003); Lewis and Clark State Bank, et al., v. Muehlheausler, STC Appeals No. 01-11402, et al., Order, dated 3/04/04.

In an appeal before the Commission, the taxpayer as the moving party has a two part burden of proof. First, the taxpayer must offer an opinion of the fair market value of the property. That is, what would the property have sold for the on the relevant tax date - January 1, 2003, in the present appeal - in an open market, arms length sale? That opinion is usually set out on the Complaint for Review of Assessment, as well as being testified to at the evidentiary hearing.

Once the owner=s opinion of value has been stated, the second part of the Complainant=s burden of proof must be addressed. Substantial and persuasive evidence that will support and validate the owner=s opinion must be presented. Often taxpayers, in an appeal of a single-family residential property, feel the need to present a multitude of photographs, copies of records from the Assessor=s office, MLS real estate listing sheets or newspaper listings of home sales. It is apparently felt by the Complainant in such instances that the volume of documents is important. That is not the case. The quantity of documents offered is of little importance if, as in the present appeal, the documents are not relevant to the central and sole issue in an overvaluation case, i.e. fair market value. It is the quality of the evidence, not its quantity that makes the evidence substantial and persuasive.

Essentially, unless the subject property has sold in a market transaction at a time relevant to the tax date, the development of one of the three recognized approaches to appraising property should be presented to the Commission in support of the owner=s opinion. For single-family residential property the income approach is ordinarily not used due to lack of adequate market data as to rents and expenses on similar homes. The cost approach, provided there are adequate vacant land sales and the subject improvements are relatively new, may on occasion be useful for providing an indication of fair market value. However, it is generally understood by appraisers and recognized by the Hearing Officer, as well as the Commission, that the sales comparison (market) approach to value will provide the strongest and most reliable means of appraising property.

In the absence of the taxpayer presenting evidence under a recognized appraisal methodology to support and corroborate the opinion of value offered, the burden to present substantial and persuasive evidence will rarely be met. Simply providing raw sales information will generally not suffice to establish value. Offerings of the appraised values set by the Assessor on properties in a given neighborhood does not constitute substantial and persuasive evidence of the fair market value of a given property.

Complainants set out an opinion of value for the subject property on the Complaint for Review of Assessment of $583,000. Ms. Kassebaum testified that was her opinion of the fair market value of the property under appeal at the evidentiary hearing. However, the evidence tendered by Ms. Kassebaum failed in any manner to provide a basis for that opinion.

The various documents offered into evidence, both those received, as well as, those excluded upon proper objection, fail in any fashion to establish that the proffered value of $583,000 was grounded in proper elements and a proper foundation. No recognized appraisal methodology was even attempted by Complainant. The information that was provided as to sales prices of various properties was in no way correlated by any method to illustrate how the various sales prices should or could be applied to the subject property to establish a value of $583,000. Accordingly, no weight can be given to the owner=s opinion. That opinion has no probative value in this appeal. Complainants did not meet their burden of proof.

The conclusion stated above that Complainants= evidence did not satisfy the standard of substantial and persuasive evidence is best explained and understood when a review of the various documents offered by Ms. Kassebaum is conducted. The Hearing Officer, in the interest of helping Complainants, as well as other taxpayers who come before the Commission appealing their property, better understand the significant weaknesses and flaws in the methodology of presenting their case will review each of the exhibits offered by Ms. Kassebaum.

This exhibit has a photograph of the house at 52 Godwin and 19 Godwin and a photograph of a portion of the subject yard showing rocks that have been placed in a washed out area. The exhibit was received into evidence as no objection was made. The photographs of the two houses simply have no probative value or benefit as to the issue of what is the fair market value of the Kassebaum property.

When a sales comparison is being performed it is always good to provide a photograph of comparable properties so that the Hearing Officer can judge for himself the curbside appeal or general view of the sale property. However, a photograph does nothing beyond that to establish value.

The one photograph showing efforts that have been taken to address the matter of water washing across portions of the subject property is helpful for the Hearing Officer to gain some understanding of the nature of the problem. However, a photograph of a negative or adverse condition on a property does not correlate to a dollar and cents amount that a sale property should be adjusted for the condition. While this photograph is helpful to some extent, it has very little evidentiary value to support the owners= opinion.

Exhibit B is a six page document consisting of handwritten notes of Ms. Kassebaum offered to support her opinion of value. Counsel for Respondent objected to this exhibit on grounds of hearsay and relevance due to a lack of foundation to establish that it developed a recognized methodology for appraisal of property. Counsel also objected as to the weight that should be given the exhibit. The objection was taken under advisement to be ruled on in this Decision.

The Hearing Officer has reviewed this entire document. It lists various bits of information on certain properties on Godwin Lane and some other streets in the subject neighborhood. Some of the properties that are listed are also properties that are the subject of other exhibits. Essentially, Ms. Kassebaum set out in this document for certain properties a listing of the 2002 and 2003 appraised values taken from the Assessor=s records. In those instances where a property had recently sold, Ms. Kassebaum set out the sale price from the Certificate of Value (COV) for the property.

There is nothing contained in this Exhibit from which any calculations can be made that establish a fair market value for the subject property. The argument that Ms. Kassebaum seems to want to make and support by this Exhibit relates to the percentage increase on various properties from one assessment cycle to the next and that in various instances the appraised value of certain properties is less than what the COV shows the property had recently sold for. However, this argument simply misses the point as to the critical issue of fair market value of the subject property on January 1, 2003. The argument and the information in Exhibit B are not relevant to the issue of overvaluation. To the extent Complainant was attempting to make an argument as to unequal or discriminatory assessment, it is likewise not relevant. That issue is addressed below in this decision.

The objection is sustained as to relevancy. The Exhibit has no probative value and can be given no weight to establish the fair market value of $583,000.

This exhibit was excluded upon objection by Counsel for Respondent on the ground of relevancy. The Exhibit provides information that the property at 8 Ladue Crest Lane was listed for sale at $689,000 in February 2004. It sold in February for $615,000. This property was not used as a comparable by Respondent=s appraiser. The exhibit does not set out any sales

comparison analysis with appropriate adjustments which provides an indicated value for the subject of $583,000. Therefore, it possesses no probative value. It is not relevant.

It is not the responsibility of the Hearing Officer to take listing data and a sales price and do a sales comparison analysis for either party. Generally, to do so would remove the Hearing Officer from serving as a trier of fact into an advocate for one party or the other. On those occasions when conflicting appraisal data is presented into evidence, a Hearing Officer may certainly exercise his experience and training to perform his own review and analysis of conflicting appraisals. This is not one of those occasions.

Whether or not this property would be an appropriate comparable to be used to arrive at an indicated fair market value for the subject is not the issue. The party offering such sales information has the responsibility to present that sales data in such a manner that it provides an indicated value for the property being appealed consistent with generally accepted appraisal standards and methods. In the absence of such analysis and the laying of a foundation that the person performing the analysis possesses sufficient education, training and experience in appraisal of real property such documents will generally be excluded from evidence upon objection.

Ms. Kassebaum made a deduction of 6% for the real estate commission on the sale of this property to arrive at a value of $579,100. This attempt to reduce the sales price of the property reveals a lack of understanding of the appraisal process on the part of Ms. Kassebaum. Her rationale is that the seller doesn=t receive the money represented by the sales commission, so it is not part of the sale price. Complainant is mistaken. In this instance, the agreed upon sale price between what apparently was a willing buyer and seller was $615,000. That is the sale price. The real estate commission, cost of title search, any attorney=s fees, loan origination fees or any other fees and costs associated with the closing of the sale are immaterial. They are not deducted from the sale price for purposes of a real estate appraisal.

This exhibit was not objected to and so was received into evidence. The Exhibit consists of the (1) Assessor=s Property Record Card (PRC) on the property at 53 Godwin Lane, (2) COV for an April 2002 sale at $485,000; (3) COV for a December 2001 sale at $431,000; (4) an undated Realtors data sheet with a price of $725,000; (5) an undated Realtors data sheet with a price of $695,000, crossed out and handwritten price of $649,900; (6) undated copy of newspaper add with a price of $599,000; and (7) two photographs of the house at 53 Godwin Lane.

No analysis was presented by Ms. Kassebaum with the Exhibit that would demonstrate how that either the 2002 or 2001 sales establish the fair market value of her property to be $583,000. Apparently the property had previously or has subsequently been placed on the market at listings of $725,000, $695,00, $649,900 and $599,000. It cannot rationally or logically be concluded from any of that information that the subject property as of January 1, 2003, had a fair market value of $583,000. As discussed above (Exhibit C), it is not the Hearing Officer=s responsibility to perform an appraisal for the taxpayer. Although received into evidence the Hearing Officer finds no substantial or persuasive evidence from this Exhibit that will support the owner=s opinion of value of $583,000 for the property under appeal.

This Exhibit was objected to on the ground of relevancy. The objection was sustained. The Exhibit consists of the PRC, COV for sale in February 2002 and front and back photographs of the property at 34 Godwin Lane. These documents are not probative on the issue of the fair market value of the Kassebaum property.

Ms. Kassebaum drew the Hearing Officer=s attention to the fact that the property had been appraised by the Assessor for 2003 at a value less than it had sold for in 2002. This argument does not establish fair market value for the Kassebaum property. To the extent that it may apply to the argument of unequal or discriminatory assessment, the Hearing Officer will address that below under the portion of this Decision address the claim of discrimination by Complainant.

This property was not utilized by Mr. Whyman in his appraisal. The Hearing Officer would only note that it sold in February 2002 for $685,000 or $216.43 per square foot of living area, compared to the indicated per square foot value for the subject under the Whyman appraisal of $159.30, and the indicated per square foot value proffered by Ms. Kassebaum=s opinion of value of only $140.72. The Hearing Officer can conclude based on the simple unadjusted sales price that the sale of the 34 Godwin Lane property appears to lend support to the Whyman opinion of value rather than the Kassebaum opinion.

This Exhibit was objected to on the ground of relevancy. The objection was sustained. The Exhibit consists of the PRC and COV for sale in January 2001 for the property at 12 Godwin Lane. These documents are not probative on the issue of the fair market value of the Kassebaum property.

Ms. Kassebaum drew the Hearing Officer=s attention to the fact that the property had been appraised by the Assessor for 2003 at a value less than it had sold for in 2001. This argument does not establish fair market value for the Kassebaum property. To the extent that it may apply to the argument of unequal or discriminatory assessment, the Hearing Officer will address that below under the portion of this Decision address the claim of discrimination by Complainant.

This property was not utilized by Mr. Whyman in his appraisal. The Hearing Officer would only note that it sold in January 2001 for $495,000 or $188.57 per square foot of living area, compared to the indicated per square foot value for the subject under the Whyman appraisal of $159.30, and the indicated per square foot value proffered by Ms. Kassebaum=s opinion of value of only $140.72. The Hearing Officer can conclude based on the simple unadjusted sales price that the sale of the 12 Godwin Lane property appears to lend support to the Whyman opinion of value rather than the Kassebaum opinion.

This Exhibit was objected to on the ground of relevancy. The objection was sustained. The Exhibit consists of the COV for sale in January 2002 sale of property at 43 Godwin Lane for $465,000, and the COV for sale in December 2003 of the property at 14 Godwin Lane for $510,000. These documents are not probative on the issue of the fair market value of the Kassebaum property.

There was no foundation laid to establish the comparability of either of these properties to the subject. The raw sale prices of $465,000 and $510,000 do not establish a fair market value for the subject of $585,000. Without detailed data on each property the COV means nothing. However, even if the necessary data to establish comparability had been presented, without a property sales comparison analysis of these properties in relation to the subject with appropriate adjustments to account for differences between the properties nothing would have been established. Mr. Whyman did not utilized either of these sales for his appraisal. The offering of COV=s that are not in an appropriate fashion tied to other evidence in a hearing provides nothing of evidentiary merit for an appeal.

No objection was made to this exhibit therefore it was received into evidence. The Exhibit consists of (1) PRC on the property at 35 Godwin Lane; (2) COV on a November, 2000 sale of the property for $790,000; and (3) a part of the plat map showing the property.

Ms. Kassebaum drew the Hearing Officer=s attention to the fact that the property had been appraised by the Assessor for 2003 at a value less than it had sold for in 2000. This argument does not establish fair market value for the Kassebaum property. To the extent that it may apply to the argument of unequal or discriminatory assessment, the Hearing Officer will address that below under the portion of this Decision address the claim of discrimination by Complainant.

This property was not utilized by Mr. Whyman in his appraisal. The Hearing Officer would only note that it sold in September 2000 for $790,000 or $246.18 per square foot of living area, compared to the indicated per square foot value for the subject under the Whyman appraisal of $159.30, and the indicated per square foot value proffered by Ms. Kassebaum=s opinion of value of only $140.72. The Hearing Officer can conclude based on the simple unadjusted sales price that the sale of the 35 Godwin Lane property appears to lend support to the Whyman opinion of value rather than the Kassebaum opinion. The Hearing Officer finds no probative value or weight can be given to this Exhibit to establish the fair market value tendered by Ms. Kassebaum.

No objection was made to this exhibit therefore it was received into evidence. The Exhibit consists of (1) PRC on the property at 22 Godwin Lane; (2) COV on a January, 2001 sale of the property for $825,000 and (3) a photograph of the property.

This property was not utilized by Mr. Whyman in his appraisal. The Hearing Officer would only note that it sold in January 2001 for $825,000 or $282.24 per square foot of living area, compared to the indicated per square foot value for the subject under the Whyman appraisal of $159.30, and the indicated per square foot value proffered by Ms. Kassebaum=s opinion of value of only $140.72. The Hearing Officer can conclude based on the simple unadjusted sales price that the sale of the 22 Godwin Lane property appears to lend support to the Whyman opinion of value rather than the Kassebaum opinion. The Hearing Officer finds no probative value or weight can be given to this Exhibit to establish the fair market value tendered by Ms. Kassebaum.

This Exhibit was objected to on the ground of relevancy. The objection was sustained. The Exhibit consists of the (1) PRC for property at 49 Godwin Lane; (2) COV for sale in December 1999 for the property; and (3) copies of microfilm building permits for the property from 1997 and 1990. These documents are not probative on the issue of the fair market value of the Kassebaum property.

Ms. Kassebaum drew the Hearing Officer=s attention to the fact that the property had been appraised by the Assessor for 2003 at a value less than it had sold for in 1999. This argument does not establish fair market value for the Kassebaum property. To the extent that it may apply to the argument of unequal or discriminatory assessment, the Hearing Officer will address that below under the portion of this Decision address the claim of discrimination by Complainant.

This property was not utilized by Mr. Whyman in his appraisal. The Hearing Officer would only note that it sold in December 1999 for $725,000 or $180.35 per square foot of living area, compared to the indicated per square foot value for the subject under the Whyman appraisal of $159.30, and the indicated per square foot value proffered by Ms. Kassebaum=s opinion of value of only $140.72. The Hearing Officer can conclude based on the simple unadjusted sales price that the sale of the 49 Godwin Lane property appears to lend support to the Whyman opinion of value rather than the Kassebaum opinion.

This Exhibit was received without objection. The Exhibit consists of (1) PRC on the property at 52 Godwin Lane and (2) COV on a June 2002 sale of the property for $730,000.

This property was utilized by Mr. Whyman in his appraisal. However, Mr. Whyman used a March 2000 sale of the property at $610,000, instead of the June 2002 sale at $730,000. Mr. Whyman elected to use the 2000 sale due to the property having had updates and remodeling prior to the 2002 sale. The Hearing Officer finds no problem with this.

It would appear that had Mr. Whyman elected to also use the 2002 sale, he would have adjusted the sale to account for any superior condition that the sale property might have due to remodeling and updating. However, it does not appear to the Hearing Officer that the indicated value from that adjusted sale would have been greatly different than the range of values all ready determined by Mr. Whyman=s four sales comparables. It is clear that neither the 2000 or 2002 sale the 52 Godwin Lane property lends support to the opinion of value presented by Ms. Kassebaum. The Hearing Officer finds no probative value or weight can be given to this Exhibit to establish the fair market value tendered by Ms. Kassebaum.

This Exhibit was received without objection. The Exhibit consists of (1) Realtors flyer on the property at 40 Godwin Lane, with a price of $725,000; and (2) MLS Report on the property showing an entry date of 01/03/03 and a listing price of $725,000.

Mr. Whyman used this property as a sales comparable. The property sold in March 2003 for $690,000. After adjusting for various factors in this property which were superior to the subject the indicated value for the subject based upon this sale was $664,800. Nothing in this Exhibit provides any basis to support Ms. Kassebaum=s opinion of value of only $583,000 for the subject in January, 2003.

This Exhibit was objected to on the ground of relevancy. The objection was sustained. The Exhibit consists of the (1) 2003 PRC for property at 46 Godwin Lane; (2) 2001 PRC for property at 46 Godwin Lane; (3) COV for sale in January 1997 for the property at $400,000; and (4) copies of microfilm building permits for the property from 1997 and 1986. These documents are not probative on the issue of the fair market value of the Kassebaum property.

This property was not utilized by Mr. Whyman in his appraisal. The 1997 sale is simply too outdated to have any relevance to the fair market value of the subject property in 2003. The Assessor=s 2003 appraised value of $632,300 for this property is not relevant to the fair market value of the subject property. Comparing the Assessor=s appraised value on one property to the appraised value on another property is not a recognized methodology for the valuation of property for ad valorem tax purposes in Missouri. This exhibit provides no support to Ms. Kassebaum=s claim of a fair market value on the subject property of only $583,000.

This Exhibit was received without objection. The Exhibit consists of (1) two photographs of the back yard of the property at 37 Godwin Lane (next door to the subject); and (2) the PRC on the property at 37 Godwin Lane.

Ms. Kassebaum drew the Hearing Officer=s attention to the fact that the property had been appraised by the Assessor for 2003 at a value less than it had sold for in 2003. This argument does not establish fair market value for the Kassebaum property. To the extent that it may apply to the argument of unequal or discriminatory assessment, the Hearing Officer will address that below under the portion of this Decision address the claim of discrimination by Complainant.

Mr. Whyman used this property as a sales comparable. The property sold in March 2003 for $689,000. After adjusting for various factors in this property which were superior to the subject the indicated value for the subject based upon this sale was $663,400. The Assessor=s 2003 appraised value of $599,800 for this property is not relevant to the fair market value of the subject property. Comparing the Assessor=s appraised value on one property to the appraised value on another property is not a recognized methodology for the valuation of property for ad valorem tax purposes in Missouri. Nothing in this Exhibit provides any basis to support Ms. Kassebaum=s opinion of value of only $583,000 for the subject in January, 2003.

Exhibit 0-1 is received into evidence. This document consists of 17 pages, containing a total of 76 photographs showing exterior and interior views of the subject house and views of the subject lot illustrating the water drainage problem from lots across the street and the power lines that run across the subject property=s backyard.

Photographs such as this are helpful to the Hearing Officer to the extent of illustrating the general appearance of both the exterior and the interior of a home. They are also helpful for purposes of illustration of factors such as the water drainage and electrical line issues. However, photographs do not possess any inherent quality by which the Hearing Officer can make specific dollar adjustments to sales comparables for a valuation of the subject property.

In other words, these photographs certainly assist the Hearing Officer in understanding what the subject property looks like and certain condition factors that impact on its value. However, nothing contained in the pictures provide any basis upon which the Hearing Officer is persuaded that there are critical or fatal flaws in the appraisal provided by Mr. Whyman. In point of fact, the Hearing Officer is convinced based upon Mr. Whyman appraisal and his testimony at hearing that he appropriately accounted for the various differences between the subject and the sale properties used in his appraisal. The photographs do not provide any justification to warrant the Hearing Officer making a negative adjustment of $77,000 to Mr. Whyman=s concluded value in order to arrive at the value of $583,000 proposed by Ms. Kassebaum.

Exhibit 0-2 is received into evidence. This document consists of (1) the 2003 PRC on the subject property; (2) the 2001 PRC on the subject property; and (3) a plat of the subject property showing the location of the telephone and electric line easement over the subject backyard.

The PRC=s have very limited probative value in this appeal, but there is certainly nothing contained in them that gives any support to Ms. Kassebaum=s claim of a fair market value of only $585,000 for the subject property. The PRC=s show that the Assessor had placed an appraised value on the subject property for the years 2000 through 2003 as follows: 2000 - $488,260; 2001 - $727,970; 2002 - 600,000; and 2003 - $635,400.

It is not the responsibility of the Hearing Officer to review the basis for the prior years= assessments. Each odd-numbered year is a new assessment cycle under state statutes (Section 137.115, RSMo). The only issue to be decided in this appeal is the fair market value for the subject property for the assessment cycle of 2003. The fact that the appraised value for the subject property increases from the 1999-00 cycle to the 2001-02 cycle and then decreased for the 2003-04 cycle simply is not relevant. There is no weight that can be given to any of this in support of the owners= opinion of value of $583,000.

The plat shows that there exists a 10 foot wide easement for telephone and electrical lines which runs across the backyard of Ms. Kassebaum=s property. This easement also runs across the back yard of the two next door properties (37 and 41 Godwin Lane). The subject lot runs 222.63 feet deep along the South side and 247.78 feet deep along the North side. The easement exists in a 10 foot corridor running North and South with the West line of the easement 50 feet from the back line of the subject property and the East line of the easement 60 feet from the back line of the subject property, or approximately 162 to 187 feet from the front of Complainants= property.

Ms. Kassebaum contends that the fact the power lines run across the back quarter of the subject lot creates a negative influence on the property=s value. The existence of the power lines is certain a factor to be considered. However, it is not simply enough for a property owner to raise an issue such as this. The property owner having raised the issue bears the burden of establishing the extent of any negative influence from such a factor.

In other words, simply because Ms. Kassebaum raises the issue does not mean that Respondent then has the burden of proving anything on this matter. When the taxpayer raises an issue like this, then it becomes the taxpayer=s burden to present evidence as to the extent of the alleged negative influence on the property. See, Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003). In the present case, Ms. Kassebaum offers nothing as to how in terms of dollar impact on value this factor should be treated.

In point of fact, one of the properties used by Mr. Whyman in his appraisal (37 Godwin) has the same power lines running across the easement as does the subject. No adjustment would have been necessary to the 37 Godwin sale, since on this element the subject and 37 Godwin are the same. Mr. Whyman elected to not make an adjustment for this factor to his three other sale properties, which apparently did not have any similar type of easement. His testimony was basically that he did not feel that the market would account for this limited factor.

The Hearing Officer finds nothing in this record upon which he can logically arrive at a conclusion contrary to that of Mr. Whyman. In fact, a simple paired sales analysis between Mr. Whyman=s Comparable 1, which is burdened by the existence of the power lines, and Comparable 2, which does not have such a factor reveals that the market does not seem to indicate any negative influence due to the existence of power lines.

These two properties sold in the same month and their sales prices were only $1,000 apart. A review of the differences between the two properties does not establish that the $1,000 difference in price was due to the existence of the power lines on 37 Godwin. Even if the Hearing Officer were to make a negative $1,000 adjustment to Comparables 2, 3 and 4 for this factor, the Whyman appraisal would still provided clear and convincing evidence to sustain the Assessor=s original value of $635,400 for the subject property.

Ms. Kassebaum having raised the issue of the asserted negative influence of the existence of power lines on her property bore the burden of proving whether the market would actually recognize that factor and if so to what extent a dollar adjustment would be warranted in a sales comparison analysis. Ms. Kassebaum failed to carry her burden of proof on this point. The Plat showing the existence of the easement for power lines has relevancy, but this was not a point of contention in this appeal. Mr. Whyman, nor Counsel for Respondent, ever asserted that there were no power lines. Only if that had been a point of dispute would the Plat have been necessary.

Exhibit 0-3 is received into evidence. This document consists of a letter dated July 12, 1998 in which the problem of water runoff from the east side of Godwin Lane (#=s 34, 36, 38 & 40) to the west side of Godwin Lane (#=s 35, 37 & 39). The letter sets out some history as to this drainage problem and a suggestion as to how the trustees of the subdivision could address the problem. From the testimony of Ms. Kassebaum and the photographs (See, O-1) provided, it is apparent that the trustees have elected to not address the problem.

The Hearing Officer can certainly understand the frustration of Ms. Kassebaum that this problem has not been addressed. However, this issue like that of the power lines is one on which the taxpayer has a burden to prove the extend of the monetary impact, if any, due to this condition. No evidence was presented by Complainants from which it can be concluded that the market would actually impose a negative factor, or at least the amount of the monetary impact the market would recognize for this condition.

Like the power line issue, 37 Godwin is burdened by this same factor as the subject, although it may not be in as great a proportion. Nevertheless, Mr. Whyman adjusted all four comparables for the drainage factor. There is no evidence from which the Hearing Officer can logically find the adjustment made by Mr. Whyman was not appropriate to account for this condition. While the Hearing Officer is not completely persuaded that the -$5,000 adjustment to 37 Godwin was warranted in light of Exhibit O-3, he will not substitute his judgment on this point for that of the appraiser. The drainage condition was a factor to be considered. Respondent=s appraiser properly addressed it. Ms. Kassebaum did not.

Exhibit 0-4 is not received into evidence. Respondent=s objection on the ground of relevancy is sustained. This document consists of (1) a listing of the 2001 and 2003 Assessed and Appraised values on 43 homes in the subject subdivision in numerical order; and (2) a listing of the assessed values for properties in the subject subdivision for 1995, 1997, 1999 and 2001.

Assuming, without finding, that all of the figures correctly reflect the Assessor=s assessed and appraised values the following conclusions can be drawn from the first document:

Information such as this is often presented in evidentiary hearings on the value of property or to attempt to make a claim of discrimination. The evidentiary fact simply is such information proves nothing concerning the fair market value of a given property. Taxpayers most often point to lists of figures like this and argue unfair and unequal assessments. To the taxpayer the line of reasoning is rather rudimentary. How can a number of properties have decreased or stayed the same in value, while the value of the taxpayer=s property increased?

The logic behind the taxpayer=s claim is flawed. It is being assumed that all of the properties were really at fair market value for the prior assessment cycle. This is implicitly presumed by the argument. The reality is that by statute it cannot be presumed that the Assessor did in fact place the fair market value on each property when his computer assisted mass appraisal system set an appraised value. The computer system may have gotten fair market value right for some properties in the prior assessment cycle. However, the system may have missed value, high or low in that cycle, on other properties. Therefore, when the next assessment cycle arrives and new sales data is available some properties received increases, other decreases and some no change at all.

The bottom line is that this document has no probative value to establish the fair market value of the subject property. It is simply irrelevant to the issue of overvaluation. There is no logical basis upon which one can make any correlation to fair market value for one property based upon such information. This document does nothing to move forward the inquiry as to the fair market value of the subject property. It provides no substantial and persuasive evidence to conclude the Kassebaum property had a fair market value of $583,000 on January 1, 2003. To the extent that Ms. Kassebaum desires to use this document in support of her discrimination argument it is likewise unpersuasive. However, the discrimination argument will be addressed below.

This document lists the properties in the subject subdivision from highest assessed value to lowest assessed values for each of the years. Complainant has highlighted in yellow the assessed values for each assessment cycle for her property. Assuming, without finding, that all of the figures correctly reflect the Assessor=s assessed values for the given years, the following conclusions can be drawn from this document:

Like the first document, this listing has no probative value on the issue of fair market value. It simply shows how assessed values have change over four assessment cycles. Why such changes occurred is simply not relevant to the issue before the Commission in this appeal. To the degree that Ms. Kassebaum feels that this establishes discrimination in the assessment of her property that will be addressed below in this Decision. As to the issue of overvaluation, this document has no probative value. It totally fails to provide any support for a conclusion of value for the Kassebaum property at $583,000 as asserted by the owners.

This Exhibit was received into evidence without objection. It consists of a information sheet for Encore Flex & Encor siding and an approximate 10 x 12 inch piece of the siding which is on the subject house.

The Hearing Officer is unclear as to what it was that Ms. Kassebaum desired to prove with this Exhibit, beyond that the siding on her home was vinyl. If she had simply reviewed her own Exhibit O-2 should would have seen that the Assessor=s records clearly show for the external wall - Alum/Vinyl. That indicates that the house has aluminum or vinyl siding. It establishes that the house is not a brick or masonry structure. Mr. Whyman in his appraisal identified the Kassebaum house as being a frame structure with vinyl siding. Although at the evidentiary hearing he did testify that part of the house has a brick veneer and could be considered as a vinyl-sided house, with some brick.

However, there was really no point of dispute as to the siding on the subject house. The piece of siding does nothing to establish any value for the property under appeal. In point of fact, had Mr. Whyman appraised the property as if it were a brick sided home, then possibly this exhibit would have had some degree of relevancy on that point. As it is, there is no issue in contention for which Exhibit P provides any relevancy.

The evidence on this record clearly establishes that in 2000 and again in 2003 Complainants listed this property for sale. The property was never listed for less than $715,000. This evidence sufficiently weigh against the owner=s opinion of value of only $583,000 as to render that opinion completely meaningless and of no probative value, over and above the failure to present any evidence based on an appropriate methodology for valuing property.

List prices on the sale of real estate do not establish fair market value. However, they provide a very good indicator of the opinion of value that an owner has at the time of the listing. The Hearing Officer certainly understands that homeowners place a listing price on property in hopes of getting that price, but realizing that they may have to take less and that the negotiated sale price may be something less than the listing price. However the Hearing Officer finds it completely against sound logic and reasoning to believe that Ms. Kassebaum listed her house for sale at four different prices, ranging from $715,000 to $750,000, at an average of $726,975 knowing that the property really only had a fair market value of $583,000 or approximately 80% of the listing price.

Ms. Kassebaum=s opinion of value of only $583,000 is further rebutted by her own testimony that in 2000 when she listed the property for sale at $750,000 she did receive an offer of $600,000, but she declined that offer. The Hearing Officer accepts, according to Complainant=s testimony, that she received no further offers at any of the times which she listed the property. Nevertheless the claim of a fair market value of only $583,000 simply does not stand in light of the evidence in this record, irrespective of the Respondent=s appraisal evidence.

Complainants failed to present evidence grounded in an accepted and recognized approach to valuation of real property to establish that the fair market value of the subject property on January 1, 2003, would have been only $583,000. The opinion of value proffered possessed no level of probative value as it was completed unsupported by any proper elements or a proper foundation for the valuation of real proper before the Commission. Complainants simply failed to carry their burden of proof.

The only ground stated in the pleading (Complaint for Review of Assessment) filed in this appeal was overvaluation. The introduction of the argument relating to the Assessor=s appraised values on certain properties being less than the reported sales price was an attempt to amend the grounds for appeal to include a claim of unequal or discriminatory assessment. Amendment of pleadings before the Commission is not permitted. The ground of discrimination was not marked in the Complaint for Review of Assessment therefore the Commission does not have jurisdiction to hear that claim. See, Amendment of Pleadings Not Permitted, supra. Accordingly, the issue of unequal or discriminatory assessment is not properly before the Commission. However, in order that the Complainants might fully understand the issue of alleged discrimination, the Hearing Officer has considered Complainants= evidence which apparently was offered to address an alleged inequality in assessment as if it were an offer of proof.

The rulings sustaining Respondent=s Objections still stand and are not being waived or set aside by the following discussion. The Hearing Officer is simply addressing this matter as if it had been properly raised for the benefit of demonstrating that the evidence offered but excluded would have still have been totally insufficient to carry the burden of making the claim of discrimination.

Even if Complainants had originally stated as a ground for appeal the claim of discrimination, the evidence tendered in this appeal would have been totally insufficient to have establish an intentional plan by the Assessor to assess the subject property at a ratio greater than that set by law of 19% or the average of the residential assessment ratio for St. Louis County. Where there is a claim of discrimination based upon a lack of valuation consistency, Complainants have 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).

Complainants= discrimination claim fails because they failed to establish the market value of their property. Without establishing their market value, they cannot establish their assessment ratio. Without establishing their ratio, they cannot establish that they are being assessed at a higher percentage of market value that any other property.

However, even if Complainants had established their market value, their discrimination claim would still fail because they have 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 their property.

Taking Complainants= evidence as it related to the difference in the Assessor=s appraised value for 2003 and a prior sale price, all that can be established is the following:

Address of Property	Assessor=s 2003 Appraised Value	Prior Sale Price	Exhibit
53 Godwin Lane	$483,300	$485,000 - 5/1/02	Exhibit D
34 Godwin Lane	$563,200	$685,000 - 2/26/02	Exhibit E
12 Godwin Lane	$435,800	$495,000 - 1/18/01	Exhibit F
35 Godwin Lane	$616,700	$790,000 - 10/9/00	Exhibit H
22 Godwin Lane	$564,000	$825,000 - 1/25/01	Exhibit I
49 Godwin Lane	$675,900	$725,000 - 12/1/00	Exhibit J
52 Godwin Lane	$599,100	$730,000 - 6/18/02	Exhibit K
46 Godwin Lane	$632,300	$400,000 - 1/1/97	Exhibit M
37 Godwin Lane	$599,800	$689,000 - 3/21/03	Exhibit N

This listing of property is not a representative sample of residential property in St. Louis County. Nine properties all on the same street, within approximatley 2 or 3 blocks of each other fails to constitute a statistically significant sample of St. Louis County residential properties. The sample fails to be representative of other residential properties based upon variations in land size and living area of homes that exist throughout St. Louis County. The sample is of higher priced homes and does not account for homes with sales values below $400,000. The sample is of a very custom built area and does not reflect sales of homes in more homoginous subdivisions and neighborhoods. The sample has no multi-family housing.

This sample would be an adequate sample size if the issue of discrimination only related to the subject street. However, the area (the subject street) is simply the wrong area from which a representative sample can be extracted under the applicable case law on unequal assessments (discrimination). It is too small. The properties selected do not have a significant diversity of relevant attributes to be representative of residential housing in St. Louis County. See, State ex rel. Plantz, supra.

The sample is not a random sample of St. Louis County residential property. Instead of randomly selecting residential property throughout St. Louis County, Complainant specifically selected nine properties on the subject street. Therefore, this sample totally and utterly fails to met the fundamental criteria of randomness required for a ratio study for assessment purposes. There was no evidence provided in support of Complainant=s sample that this statistically met the requirements for randomness.

The average assessment ratio calculated based upon the sales prices listed and the actual assessed values for 2003 is 17.74%, or within 6.6% of the statutory assessment ratio of 19%. No evidence was presented by Complainants that would establish that a difference of only 6.6% constitutes a grossly excessive variance from the statutory assessement level of 19%. See, Savage, supra. The Hearing Officer does not find the difference to be grossly excessive.

In point of fact, Complainants= property is assessed at only 18.3% of the fair market value established by the Whyman appraisal ($120,730/$660,000 = 18.3%) or only 0.56 of a percentage point more than the average calculated above on the nine sale prices. This is certainly not a grossly excessive difference.

Irrespective of all of the deficiencies set out above, Complainants totally failed to establish an intentional plan by the Assessor or the Board of Equalization to assess the subject property in a manner different from the nine other properties on the saubject street. The conclusion that must be reached on the assessment process fo the subject and the other nine properties is that all were assessed by the same mass appraisal system. By state statute that is so presumed. Accordingly, there is no way in which a claim of intentional plan of discrimination can be sustained when the purported sample were all valued in the same fashion and manner as the subject property for 2003.

Complainants failed to establish the market value of their property and failed to establish that their property is being assessed at a higher percentage of market value than a statistically significant number of other properties in St. Louis County, therefore, they failed to prove discrimination. Even if the proposed methodology to address the claim of discrimination had been recognized under the applicable case law, which it is not, the alleged difference in assessment ratios would not constitute a difference that can be established to be grossly excessive. No intentional plan against the subject property in the assessment methodology was established. Complainants did not meet the required burden of proof on the claim of discrimination.

Respondent presented clear and convincing evidence to establish a fair market value as of January 1, 2003, to be at least $635,400 for the property under appeal. 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. Whyman 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 0.6% to 9%. Even the gross adjustments were in a very acceptable range from 16.9% to 21.5%.

The indicated square foot value fell below the bottom of the range of unadjusted values of the sale properties. This is consistent with the generally accepted view that homes of larger size will sell for a smaller per square foot price than homes of a smaller size. Comparables 1 and 3, being smaller in living area than Comparables 2 and 4, sold for a slightly higher per square foot value then Comparables 2 and 4. It can be expected that the subject being slightly larger than Comparables 2 and 4 would likewise sell for a smaller per square foot value than these comparables.

The appraisal problem presented in this case is representative of those cases in which the subject property is not what would generally be considered a tract home in a homogeneous subdivision. The subject home is certainly not what some would call a cookie-cutter type house. Often the custom designed home presents troublesome problems for an appraiser. Sometimes it is not possible to find similar homes in the subdivision or neighborhood of the property being appraised.

Such is not the case in this instance. The appraiser was fortunate to have four good sales of properties all on the subject street. This street of homes is clearly a very desirable neighborhood. The sale properties, as with any custom built homes, have various individual characteristics. However, the neighboring properties up and down Godwin contain more than sufficient elements of comparability for an appraiser to utilize the sales which Mr. Whyman selected. Mr. Whyman was also fortunate to find two sales which had occurred within three months after the valuation date of January 1, 2003. His third sale was only eight months after the valuation date. The final sale was 33 months prior to valuation date. However, that sale date for homes of this type and on this street was sufficiently cost in time to be relevant for this valuation problem.

Due to the invididual differences between each of the sale properties and the subject, Mr. Whyman was required to make various individual adjustments. However, adjustments for different factors are common in the appraisal process when conducting the sales comparison approach to value. The appraiser gave a brief narration as to his process for evaluating the four comparable properties and the appropriate adjustments which were required to be made. Exhibit 1, p. 10. This narrative, along with the Sales Comparison Grid (Exhibit 1, pp. 8-9), and Mr. Whyman=s testimony provide a very sound basis to sustain the original valuation of the subject property as established through the mass appraisal system.

In particular Mr. Whyman accounted for the water drainage issue which was raised by Ms. Kassebaum. This matter has been adequately addressed above and therefore bears no need of further discussion. In like manner the power line issue was addressed during Mr. Whyman=s testimony. Again, as dealt with above the appraiser=s opinion was that the market would not significantly account for this factor. The Hearing Officer is in agreement with that conclusion. The other significant factors as to the differences in quality of construction and condition were properly adjusted for. The fact that Ms. Kassebaum declined to permit Mr. Whyman to conduct an interior inspection because the home had been rennovated and updated after January 2004 did ot permit the appraiser the opportunity to make the type of physical review of the interior which might have provided a better understanding of the subject=s condition in January 2003. The rational offered by Ms. Kassebaum that Mr. Whyman would appraise the property as he viewed it after the updates is without any basis in fact. Ms Kassebaum should have simply pointed out to Mr. Whyman exactly what updates had been done after January 2004. She could have assisted the appraisal process greatly by doing this and also supplying copies of contracts and rennovation costs. Mr. Whyman would have been able to utilize such information to gain a better understanding as to the interior condition changes which had been made.

Complainants failed to meet their burden to present substantial and persuasive evidence to establish a value of $583,000. Respondent=s evidence met the standard of clear and convincing to sustain the original valuation of $635,400 for the subject prooperty. Accordingly, the Assessor=s valuation which was sustained by the Board of Equalization must be affirmed.

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 $120,730.

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.

C. HARVEY & DONNA F. KASSEBAUM,	)
	)
Complainants,	)
	)
v.	)	Appeal Number 03-12104
	)
PIHLIP MUEHLHEAUSLER, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)