STEVE DREYER,	)
	)
Complainant,	)
	)
v.	)		Appeal Number 03-12135
	)
PHILIP MUEHLHEAUSLER, ASSESSOR,	)
ST. LOUIS COUNTY, MISSOURI,	)
	)
Respondent.	)

Decision of the St. Louis County Board of Equalization sustaining the assessment made by the Assessor, AFFIRMED, true value in money for the subject property for tax years 2003 and 2004 set at $141,400, assessed value of $26,870.

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) whether there was an intentional plan of the St. Louis County Assessor or Board of Equalization to assess the subject property at a ratio greater than the average assessment ratio for residential property within St. Louis County.

Complainant appeals 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 $141,400 (assessed value of $26,870, as residential property). Complainant proposed a value of $130,900 (assessed value of $24,870). A hearing was conducted on February 19, 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 and offered into evidence Exhibit A. Exhibit A consisted of four (4) photographs of the subject property. Exhibit A was received into evidence. Mr. Dreyer gave his opinion of value for the property as of January 1, 2003, to be $130,900. The owner=s opinion of value was based upon what Mr. Dreyer believed he could sell the property for as of January 1, 2003. No other documentary evidence was offered to establish the fair market value of the subject 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 $169,600 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 479 East Adams, Kirkwood, Missouri. The property is identified by locator number 23M220764. The property consists of a .22 of an acre lot improved by a one-story brick single-family structure of average quality construction. The house was built in 1946 and appears to be in average condition. The house has a total of six rooms, including two bedrooms and one bath. It contains 1,369 square feet of living area, with a partial basement. There is a one-car attached garage. Exhibit 1, p. 5.

The property was purchased by Complainant in 1996 for $87,500. In April 1997, Complainant sold the property for $135,000 and financed the sale. The buyers defaulted and the property was quit-claimed back to Complainant. Testimony of Mr. Dreyer.

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 $130,600.

5. Complainant=s discrimination claim was not established because no evidence was presented to established that a statistically significant number of residential properties within St. Louis County are being assessed at an average assessment ratio of less than nineteen percent as required by law for residential property.

6. The properties relied upon by Respondent=s appraiser in performing his appraisal were comparable to the subject property for the purpose of making a determination of value of the subject property. The properties were located within less than one mile of the subject. Each sale property sold at a time relevant to the tax date of January 1, 2003. The properties were similar to the subject in site size, location, style, quality of construction, age, condition, number of rooms, bedrooms and bathrooms, living area and other amenities and features.

7. The comparables were described as follows:

Comparable 1 (718 Woodlawn Avenue - Half mile North of the Subject) sold in October 2002 for $181,000. This property consists of a .21 of an acre lot improved by a one-story frame single-family house of average quality construction. The house was built in 1949 and appears to be in average condition. The house has a total of five rooms, which includes three bedrooms and a bath. It contains 1,250 square feet of living area and has a full basement. There is an attached one-car garage.

Comparable 2 (711 Dickson Street - Three-Quarters of a mile East of the Subject) sold in January 2002 for $160,000. This property consists of a .20 of an acre lot improved by a one- story brick single-family house of average quality construction. The house was built in 1952 and appears to be in average condition. The house has a total of four rooms, which includes two bedrooms and a bath. It contains 1,090 square feet of living area. There is a full basement. There is an attached one-car garage.

Comparable 3 (673 Cranbrook Drive - Three-Eights mile North of the Subject) sold in July 2002 for $165,000. This property consists of a .19 of an acre lot improved by a one-story brick and frame single-family house of average quality construction. The house was built in 1951 and appears to be in average condition. The house has a total of five rooms, which includes two bedrooms and a bath. It contains 1,482 square feet of living area and no basement. There is an attached one-car garage.

8. The appraiser made adjustments to the comparable properties for differences which existed between the subject and each comparable. The adjustments were appropriate to account for the differences in amenities and factors between each comparable and the subject.

9. The net adjustments for Comparable 1 amounted to -$900 or 0.50% of the sales price. The net adjustments for Comparable 2 amounted to -$400 or 0.25% of the sales price. The net adjustments for Comparable 3 amounted to +$2,200 or 1.33% of the sales price.

10. The adjusted sales prices for the comparables calculated to $181,900, $159,600 and $167,200, respectively. The appraiser concluded on a $169,600 value which calculated to a value per square foot of $123.89 compared with the sales prices per square foot of living area for the comparables of $144.80, $146.79 and $111.34.

11. Respondent was required to meet a standard of clear, convincing and cogent evidence in this appeal, under the provisions of Section 137.115, RSMo, as he was seeking to sustain the original valuation presumed to have been made by a computer, computer-assisted method or a computer program.

12. Respondent=s evidence was not offered to advocate an increase in value, but only to sustain the value which had been determined by the Assessor and sustained by the Board of Equalization. Respondent=s evidence met the standard of clear and convincing to establish the value of the subject, as of January 1, 2003, to be at least $141,400.

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 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 $141,400, appraised value, Respondent=s evidence must come within the guidelines established by the legislature and must clearly and convincingly persuade the Hearing Officer as to the value sought to be sustained.

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

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

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

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

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

Section 137.115.1(1) & (2).

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

In order to prevail, Complainant must present an opinion of market value and substantial and persuasive evidence that the proposed value is indicative of the market value of the subject property on January 1, 2003. Hermel, Inc. v. State Tax Commission, 564 S.W.2d 888, at 897. Substantial evidence can be defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See, Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696, 702 (Mo. 1959). Persuasive evidence is that evidence which has sufficient weight and probative value to convince the trier of fact. The persuasiveness of evidence does not depend on the quantity or amount thereof but on its effect in inducing belief. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo. App. 1975). See also, Westwood Partnership v. Gogarty, 103 S.W.3d 152 (Mo. App. E.D. 2003); Daly v. P. D. George Co., 77 S.W.3d 645 (Mo. App. E.D. 2002); Reeves v. Snider, 115 S.W.3d 375 (Mo. App. S.D. 2003).

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

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

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

Discrimination

In order to obtain a reduction in assessed value based upon discrimination, Complainant must establish (1) the market value of the subject property to establish the percentage of true value at which it is being assessed, and (2) the market value of a statistically significant number of other residential properties and their assessed values to establish the average residential assessment ratio in St. Louis County. The difference in the average assessment ratio and the assessment ratio on the subject property must be shown to be grossly excessive. Koplar v. State Tax Commission, 321 S.W.2d 686, 690, 695 (Mo. 1959); State ex rel. Plantz v. State Tax Commission, 384 S.W.2d 565, 568 (Mo. 1964); Savage v. State Tax Commission of Missouri, 722 S.W.2d 72, 79 (Mo. banc 1986); Cupples-Hesse Corporation v. State Tax Commission, 329 S.W.2d 696 (Mo. 1958).

Complainant=s evidence as to the fair market value of the property under appeal consisted of the owner=s unsupported opinion of value. The owner=s opinion of value was based upon what he thought the property would sell for on January 1, 2003. There was no other information to support this opinion.

An owner=s opinion that is not established to be based upon proper elements or foundation has virtually no probative value. Notwithstanding that Mr. Dreyer owns a number of rental properties and has apparently bought and sold rental properties for some time, this does not establish sufficient basis for the Hearing Officer to turn a blind eye and deaf ear to market data demonstrating that properties comparable to the subject are selling for prices significantly greater than the opinion proffered by the owner. An unsupported owner=s opinion does not possess substantial and persuasive weight to establish the fair market value of the property under appeal.

The appraisal report of Mr. Lincoln constituted clear and convincing evidence that the fair market value of the subject property as of January 1, 2003, was at least $141,400. The three sale properties provided a solid foundation for establishing value of the subject property. The indicated per square foot value for the subject of $123.89 falls below the midpoint between the lowest and highest per square foot sale prices of the three comparables. The three comparables required only small adjustments for a few factors. The three sale properties provide more than sufficient basis to value the property at $141,400.

Respondent=s appraiser did not feel an adjustment to the comparables was warranted as to any difference in location due to the subject=s location on what the Complainant described as busy. Mr. Lincoln did acknowledge that his comparable 3 was located on a side street, however he felt that comparables 1 and 2 were located on streets that had traffic similar to East Adams where the subject is located. A comparison of the three comparables does not provide sufficient basis to make an additional adjustment for the street factor. In any event, it was Mr. Lincoln=s opinion that no additional adjustment was required. Complainant bore the burden of establishing through market data the adjustment that should be made, if any, for a difference in location.

Complainant failed to present substantial and persuasive evidence to establish a value of $130,900. Respondent provided clear and convincing evidence of a value of at least $141,400. The Decision of the Board sustaining the Assessor=s value 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 $26,870.

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 February 27, 2004.

STATE TAX COMMISSION OF MISSOURI

W. B. Tichenor

Hearing Officer