ROY SANDOZ,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-10174
	)
PHILIP MUEHLHEAUSLER, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the St. Louis County Board of Equalization reducing the assessment made by the Assessor, SET ASIDE, Hearing Officer finds true value in money for the subject property for tax years 2003 and 2004 to be $110,105, assessed value of $20,920.

Complainant appeared pro se.

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) if there was an intentional plan by assessing officials to assess the subject property at a ratio greater than the average assessment ratio for residential property within St. Louis County.

SUMMARY

Complainant appeals the decision of the St. Louis County Board of Equalization which reduced the valuation of the subject property. The grounds asserted on the Complainant for Review of Assessment were overvaluation and discrimination. The Assessor determined an appraised value of $110,105 (assessed value of $20,920, as residential property). The Board reduced the value to $94,050 (assessed value of $17,870). Complainant proposed a value of $75,000 (assessed value of $14,250). A hearing was conducted on April 15, 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.

Complainant testified in his own behalf. Complainant offered into evidence Exhibit A which was received over the objection of Counsel for Respondent.

Exhibit A consists of:

(1) a 3 page typed statement of Complainant relating to ongoing claims as to sewers in the subject neighborhood;

(2) a portion of a plat map of the subject and neighboring lots, with markings indicating sewer lines and surface water flow on the subject property and other neighborhood properties;

(3) a copy of a letter dated August 19, 1999 to Complainant from an Engineer in the Maryland Heights Public Works Department as to an investigation of sinkholes on the subject lot along the sewer line;

(4) a copy of three work orders, dated 1/19/2000, related to the sinkholes in the subject back yard;

(5) a copy of field notes from 1997 and 1999 by assessor=s staff persons about the subject property and the sewer problem.

Exhibit A sets forth the complaint that Mr. Sandoz has relative to the problem of sinkholes along the sewer line at the back of his property.

Respondent placed into evidence the testimony of Mr. Al Lincoln, appraiser for St. Louis County. The appraiser testified as to his appraisal of the subject property. The Appraisal Report, Exhibit 1, of Mr. Lincoln was received into evidence. Mr. Lincoln arrived at an opinion of value for the subject property of $135,400 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 6 Grand Circle Drive, Maryland Heights, Missouri. The property is identified by locator number 14M410190. The property consists of a .46 of an acre lot. The lot is improved by a one story brick and perm-stone single-family structure of average quality construction. The house was built in 1956 and appears to be in average condition. The residence has a total of 7 rooms, which includes 3 bedrooms, 1 bath and contains 1,663 square feet of living area. There is a full basement. The house has an attached 2- car garage. There is also a detached 3-car masonry garage. The property has not been listed for sale nor has it sold in the three years prior to 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 $75,000

5. The properties relied upon by Respondent=s appraiser in performing his appraisal were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located within a block of the subject. Each sale property sold at a time relevant to the tax date of January 1, 2003. The sale properties were comparable to the subject in lot size, location, style, quality of construction, age, condition, room and bed room count, number of baths, living area, and other amenities associated with the property. Exhibit 1, pp. 6-7.

6. The comparables were described as follows:

Comparable 1 (76 Grand Circle Dr., same street as subject) sold in January 2001 for $135,000. This property consists of a .62 of an acre lot improved by 1 story brick single-family structure of average quality construction. The house was built in 1956 and appears to be in average condition. The residence has a total of 5 rooms, which includes 3 bedrooms and 1 and a 1/2 baths, and contains 1581 square feet of living area. There is a full basement. The house has an attached 1 car garage. Exhibit 1, pp. 6-7.

Comparable 2 (65 Grand Circle Dr., same street as subject) sold in April 2001 for $144,000. This property consists of a .46 of an acre lot improved by 1 story brick single family structure of average quality construction. The house was built in 1956 and appears to be in average condition. The residence has a total of 6 rooms, which includes 3 bedrooms and 2 baths, and contains 1,320 square feet of living area. There is a full basement. The house has an attached 2-car garage. Exhibit 1, pp. 6-7.

Comparable 3 (27 Grand Circle Dr., same street as subject) sold in May 2001 for $115,000. This property consists of a .57 of an acre lot improved by 1 story brick single-family structure of average quality construction. The house was built in 1956 and appears to be in average condition. The residence has a total of 6 rooms, which includes 3 bedrooms and 1 and a 1/2 baths, and contains 1,275 square feet of living area. There is a full basement. The house has an attached 2-car garage. Exhibit 1, pp. 6-7.

7. The appraiser made various adjustments to the comparable properties for differences which existed between the subject and each comparable. All adjustment appear to be appropriate to bring the comparables in line with the subject for purposes of the appraisal problem.

8. The net adjustments for Comparable 1 amounted to -$1,000 or 0.7% of the sales price. The net adjustments for Comparable 2 amounted to +$1,900 or 1.3% of the sales price. The net adjustments for Comparable 3 amounted to +$16,300 or 14.2% of the sales price. Exhibit 1, p. 7.

9. The adjusted sales prices for the comparables calculated to $134,000, $145,900 and $31,300, respectively. The appraiser concluded on a $135,400 value which calculated to a value per square foot of $81.42 compared with the sales prices per square foot of living area for the comparables of $85.39, $109.09 and $90.20. Exhibit 1, p. 7.

10. Respondent=s evidence met the standard of clear and convincing to establish the value of the subject, as of January 1, 2003, to be $110,105 as originally determined by the Assessor.

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).

The presumption in favor of the Board is not evidence. A presumption simply accepts something as true without any substantial proof to the contrary. In an evidentiary hearing before the Commission, the valuation determined by the Board is accepted as true only until and so long as there is no substantial evidence to the contrary.

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

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

Market value 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 $110,105, 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).

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.

Complainants must first establish the market value of their property in order to determine the percentage of true value at which it is being assessed. Next, they must establish the true value of the other properties generally which they claim are assessed at a lower percentage of true value. 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). Then they must compare the ratio of assessed value to true value for both their property and the comparable properties to establish that their property is being assessed at a higher percentage of value. This difference in ratios 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).

Complainant failed to present any relevant evidence on the issue of fair market value. None of the documents contained in Exhibit A provide any basis upon which a determination of value of $75,000 as asserted by Complainant could be reached. Complainant=s opinion of value was not supported by an documentation which would demonstrate that it was based upon the proper elements or the proper foundation for the valuation of the subject property. Accordingly, the owner=s opinion had no probative value in this appeal.

In like manner, none of the evidence presented by Mr. Sandoz established that the average level of assessment for St. Louis County residential property was less than 19%. Nor did he establish that his property was being assessed at an assessment ratio greater than 19% of its fair market value. Accordingly, both the claim of overvaluation and discrimination fail.

Exhibit A was only received because it contains the information upon which Mr. Sandoz asserts his ongoing dispute with the city of Maryland Heights and St. Louis County over the sewer line that runs at the back of his property. It sets forth his claim against these governmental entities in the sewer problem. This is the basis of his appeal to the Commission. The Commission has no jurisdiction over matters relating to sewer problems and disputes in St. Louis County or in Maryland Heights. In short, Mr. Sandoz presented evidence for an asserted claim that does not fall within the jurisdiction of the Commission.

The evidence presented by Respondent establish a value of at least $110,105 for the subject property. The Commission may increase the value to the amount originally determined by the Assessor, but may not increase it above that amount. Section 138.060, RSMo; 12 CSR 30-3.075. Accordingly, the valuation established by the Board of Equalization has been rebutted and the original value found by the Assessor is set as the fair market value of the subject property.

The appraisal of Mr. Lincoln presents a very sold approach to the present appraisal problem. The sale comparables all come from the subject street, which comprises a circle. None of the sale properties a much more than a block from the subject. The only issue of contention with the appraisal addressed by Complainant related to the fact that none of the comparables have the same sink hole problem that the subject has.

The sink hole problem exists along a sewer line which run across the very back corner of the subject lot. Only a small portion of the subject lot is affected by the problem of surface water running along the back of the subject lot and apparently contributing to the causing of sinkholes along the sewer line. See, Exhibit 1, p. 16. There is no problem of sewage backing up either onto the subject lot or into the subject basement. There is no problem of water getting into the subject basement. In the opinion of the appraiser, the existence of three sink holes at the very back of Mr. Sandoz=s property did not warrant any adjustment. Even if the appraiser had elected to apply a negative $25,000 adjustment for this factor, his appraisal would have still supported the $110,105 value for the subject property.

The Hearing Officer understands that the matter of occasional surface water flooding and the sink holes along the sewer line are issues which are distressful and irritating to Mr. Sandoz. However, there is no evidence upon which it can be established that these conditions would so devalue the subject property as to render its value at only 55% of the value which is clearly demonstrated from the sales of three properties on the subject street.

In the absence of any evidence to support Complainant=s opinion of value and the unrefuted evidence established and developed by Mr. Lincoln=s appraisal, the fair market value of the subject property must be set at $110,105 as originally determined by the assessor.

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

The assessed value for the subject property for tax years 2003 and 2004 is set at $20,920.

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 April 21, 2004.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer