Opinion

Dunzer v. Clatsop County Assessor

Court
Oregon Tax Court
Filed
Dec 5, 2013
Status
Unpublished
Cited by
0 cases
Authority
More cited than 30.8%

The opinion

IN THE OREGON TAX COURT

MAGISTRATE DIVISION

Property Tax

JOHN DUNZER, )

)

Plaintiff, ) TC-MD 130276D

)

v. )

)

CLATSOP COUNTY ASSESSOR, )

)

Defendant. ) FINAL DECISION

The court entered its Decision in the above-entitled matter on November 18, 2013. The

court did not receive a request for an award of costs and disbursements (TCR-MD 19) within 14

days after its Decision was entered. The court’s Final Decision incorporates its Decision without

change.

Plaintiff appeals the 2012-13 real market value of property identified as Account 14127

(subject property). A trial was held in the Oregon Tax Courtroom, Salem, Oregon, on

Wednesday, August 14, 2013. Plaintiff, a licensed real estate broker in California, appeared on

his own behalf. Michael Grant (Grant), Assessor, appeared on behalf of Defendant.

Plaintiff’s Exhibits 1 through 3 and Defendant’s Exhibits A through C and rebuttal

Exhibits D through J were received without objection.

I. STATEMENT OF FACTS

The subject property is a single family residence on a .23 acre lot located on a cul-de-sac

in “the Cove” neighborhood of Seaside, Oregon. (Ptf’s Ex 1 at 7; Def’s Ex A at 1.) The subject

property was built in 1994 and subsequently remodeled and improved. (Ptf’s Ex 1 at 7-8; Def’s

Ex A at 1.) As of the assessment date, the subject property had four bedrooms, four and one-half

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FINAL DECISION TC-MD 130276D 1

bathrooms, a finished attic, central vacuum system and an elevator, providing access to all floors.

(Ptf’s Ex 1 at 7-8; see Def’s Exs A at 1, C at 1.)

Plaintiff described the subject property as consisting of “1985 sq ft. of livable area and

1625 sq.ft. of non permanently heated non-livable floor space.” (Ptf’s Ex 1 at 8.) Plaintiff

testified about numerous deferred maintenance issues, including “rotted outside railings” and a

“worn out roof.” Plaintiff testified that a portion of the garage was “structurally unsound” and

“needs to be reconstructed” to “meet the wind loads for [the] area and * * * to be safe.” (Ptf’s

Ex 1 at 7, 35.) Plaintiff testified that the subject property’s value was negatively impacted by

being located in a tsunami inundation zone.

Plaintiff relied on an Oregon Department of Revenue publication entitled “The Sales

Comparison Approach to Value” in determining the subject property’s real market value. (See

Ptf’s Ex 1 at 4.) Plaintiff’s sales comparison approach relied on two comparable sales located on

the same cul-de-sac as the subject property. (Id. at 13.) Comparable #1 sold for $400,000 in

October 2012. (Id. at 20.) Comparable #2 sold for $418,750 in April 2012. (Id. at 15.)

Plaintiff adjusted the sales prices of the comparable properties based on numerous

criteria, including lot features, home type, construction quality, structure maintenance, building

area, number of bedrooms, number of bathrooms, elevator, central vacuum, and number of

garages. (See Ptf’s Ex 1 at 29.) Plaintiff also determined that the subject property and two

comparable properties “have extensive uncovered and covered decks and porches so adjustments

are unnecessary” for those features. (Id.) To account for the subject property’s deferred

maintenance, Plaintiff gave each comparable property a negative $31,000 adjustment.

(Ptf’s Ex 1 at 35.) Plaintiff valued the subject property and the comparable properties, assigning

different prices per square foot to different types of living space: $102 per square foot for heated

FINAL DECISION TC-MD 130276D 2

main floor space; $60 per square foot for heated second floor space; $50 per square foot for

unheated floor space, and $30 per square foot for finished attic floor space. (See Ptf’s Ex 1

at 37.) Using those prices per square foot, Plaintiff adjusted the comparable properties resulting

in a positive $31,000 adjustment for comparable #1 and a negative $34,000 adjustment for

comparable #2. (Id.) Plaintiff made adjustments based on the number and locations of

bedrooms in the comparable properties, resulting in a negative $15,000 adjustment for

comparable #1 and a negative $10,000 adjustment for comparable #2. (Id. at 38.) Based on the

ratio of bathrooms to bedrooms, comparable #1 was given a positive $5,000 adjustment and

comparable #2 was considered similar to the subject property with no adjustment being made.

(Id.) Both comparable properties were given positive adjustments of $24,000 for their lack of an

elevator and central vacuum system. (Id.) Comparable #1 was given a negative $12,000

adjustment based on its larger, detached garage, while comparable #2 was given no adjustment

for its smaller detached garage, which Plaintiff determined was similar to the subject property.

(Id.) Plaintiff applied a small time adjustment to each comparable property. (Id. at 40.) Plaintiff

made negative adjustments to the comparable properties based on the lack of the subject

property’s ocean view. (Id.) Plaintiff gave Comparable #2 a positive $75,000 adjustment

because it is a townhouse with a shared wall as opposed to a detached single family residence.

(Id. at 41.) Plaintiff determined adjusted sale prices of $413,000 for comparable #1 and

$422,000 for comparable #2, with a reconciled real market value of $420,000 for the subject

property. (Id. at 40-41.)

Grant considered the cost approach, market approach and income approach, “but the

income approach was not utilized as the subject property was not leased and there is limited

useful income and expense data for an owner occupied single family residence.” (Def’s Ex A

FINAL DECISION TC-MD 130276D 3

at 12.) Grant stated that “The Market Approach and elements of the Cost approach were used to

determine RMV [real market value],” and that the “cost approach was considered and stated, but

not relied upon individually.” (Def’s Ex A at 2.) Grant determined the subject property’s value

under the cost approach to be $609,557. (Id. at 13.)

Grant provided two sets of comparable properties. (See id. at 4, 8-9.) Grant’s first set of

comparable properties included “two comparable sales approximately 2 – 3 blocks South of the

subject [property] * * *.” (Id. at 13.) Grant’s comparable properties sold in 2011; comparable

#1 sold for $345,000 and comparable #2 sold for $337,880. (Id. at 3.) Grant adjusted both sales

for time, class, condition, size, garage, number of bathrooms, fireplace, heating and cooling,

elevator, and vacuum system. (Id. at 4.) Grant determined adjusted sale prices of $567,322 and

$582, 503 for the two comparable properties. (Id.) Grant determined a real market value for the

subject property of $588,449.1 (Id.)

Grant submitted a second sales comparison analysis, using Plaintiff’s comparable

properties. (Id. at 8.) Grant stated that he used “the inverse of the 2013 ratio trends to bring the

sales prices to the estimate price the property would have sold for as of the assessment date.”

(Id. at 14.) Grant also determined that “[f]or the 2012 year * * * there was no time trend for

improved properties.” (Id.) Grant made adjustments for “condition, size and other features such

as the elevator, vacuum systems, covered porch etc.” (Id.) Grant testified that “[b]oth of these

sales are similar in age and class, but are inferior in terms of sq. ft. and other improvements.”

(Id.) Grant determined adjusted sales prices of $554,217 and $594,445 for Plaintiff’s

comparable properties. Grant’s adjusted real market values “bracket the subject [property’s real

1

The stated real market value appears to be a typographical error. The subject property’s real market value

determined by the board of property tax appeals was $580,449, and Grant concluded that the subject property’s real

market value using the sales comparison approach was $580,449. (Ptf’s Compl at 2; Def’s Ex A at 14.)

FINAL DECISION TC-MD 130276D 4

market] value of $580,449 as of January 1, 2012.” (Id.) Grant also presented evidence of the

listing history of the subject property in support of his real market value determination.

Plaintiff’s requested subject property real market value is $420,000. (Ptf’s Compl at 1.)

Grant’s requested subject property real market value is the 2012-13 tax roll value of $580,449.

(Def’s Ex A at 14.)

II. ANALYSIS

The issue before the court is the subject property’s real market value as January 1, 2012.

ORS 308.007; ORS 308.210. 2 In Oregon, all real property “not exempt from ad valorem

property taxation or subject to special assessment shall be valued at 100 percent of its real market

value.” ORS 308.232. Real market value is defined as “the amount in cash that could

reasonably be expected to be paid by an informed buyer to an informed seller, each acting

without compulsion in an arm’s-length transaction occurring as of the assessment date for the tax

year.” ORS 308.205(1). “Real market value * * * shall be determined by methods and

procedures in accordance with rules adopted by the Department of Revenue * * *.”

ORS 305.205(2).

As the party seeking affirmative relief, Plaintiff bears the burden of proving that the

subject property’s real market value is incorrect on the tax roll. ORS 305.427. Plaintiff must

establish his claim “by a preponderance of the evidence, or the more convincing or greater

weight of evidence.” Schaefer v. Dept. of Rev., TC No 4530, WL 914208 *2 (July 12, 2001)

(citing Feves v. Dept. of Revenue, 4 OTR 302 (1971)). This court has stated that “it is not

enough for a taxpayer to criticize a county’s position. Taxpayers must provide competent

evidence of the [real market value] of their property.” Poddar v. Dept of Rev., 18 OTR 324, 332

2

The court’s references to the Oregon Revised Statutes (ORS) and the Oregon Administrative rules (OAR)

are to 2011.

FINAL DECISION TC-MD 130276D 5

(2005) (quoting Woods v. Dept. of Rev., 16 OTR 56, 59 (2002) (citation omitted)). “Competent

evidence includes appraisal reports and sales adjusted for time, location, size, quality, and other

distinguishing differences, and testimony from licensed professionals such as appraisers, real

estate agents, and licensed brokers.” Danielson v. Multnomah County Assessor, TC-MD No

110300D at 7 (Mar 13, 2012). Evidence that is inconclusive or unpersuasive is insufficient to

sustain the burden of proof. Reed v. Dept. of Rev. (Reed), 310 Or 260, 265, 798 P2d 235 (1990).

There are three approaches to valuation (income, cost, and sales comparison) that must be

considered when determining the real market value of a property. Allen v. Dept. of Rev., 17 OTR

248, 252 (2003); Gangle v. Dept. of Rev., 13 OTR 343, 345 (1995); see also OAR 150-308.205-

(A)(2)(a). All three approaches must be considered, although all three approaches may not be

applicable to the valuation of the subject property. OAR 150-308.205-(A)(2)(a). The valuation

approach to be used is a question of fact to be determined on the record. Pacific Power & Light

Co. v. Dept. of Revenue, 286 Or 529, 533, 596 P2d 912 (1979).

Plaintiff relies on the sales comparison approach; Defendant relies on the sales

comparison and the cost approach. Grant stated that “[t]he income approach was considered but

not used as [the subject property] is not income producing * * *.” (Def’s Ex A at 2.) “The cost

approach is particularly useful in estimating the real market value of new construction because

cost and market value can be more closely related when properties are new.” Anderson v. Lane

County Assessor, TC-MD 090298 at 6 (Nov 17, 2009). The subject property was built in 1994;

several renovations and additions were completed. The assessment date is more than 18 years

after initial construction was completed. (See Ptf’s Ex 1 at 7-8; Def’s Ex A at 4.) Even though it

has been renovated and remodeled, the subject property is not new construction. Because the

FINAL DECISION TC-MD 130276D 6

subject property is not new construction and is not income producing, the most appropriate

method to value the subject property is the sales comparison approach.

Plaintiff’s sales comparison approach was based on two comparable properties located on

the same cul-de-sac as the subject property. (See Ptf’s Ex 1 at 30.) Plaintiff prepared the sales

comparison approach himself. His testimony was credible. Plaintiff’s analysis stated significant

adjustments for total living space, lot features, home type, construction quality, structure

maintenance, number of bedrooms, number of bathrooms, elevator, central vacuum system,

garage, and view. (Id. at 29.) Some of those adjustments, total living area, home type and

garage, were taken from an appraisal report prepared years prior by an appraiser. (See id. at 25.)

Plaintiff made a large adjustment for home type, relying on the work of another appraiser. (See

id.) The appraisers who prepared the reports and determined the adjustment amounts were not

present at trial and did not testify. Without the supporting testimony of the appraisers who

prepared the reports and determined the adjustments, the adjustments are not verified. Defendant

and the court were deprived of an opportunity to question the appraisers. Plaintiff testified that

he did not independently measure the total area of the subject property, nor did he provide any

independent basis for the need or the value for many of the adjustments he made. Many of

Plaintiff’s adjustments are based on three different prices per square foot values. None of those

values were verified and those adjustments were made without verifying the subject property’s

total living space.

Plaintiff submitted a document to support his adjustment for the elevator. (Ptf’s Ex 2 at

6-8.) The document stated a total bid amount of $30,219 with a “cash discount to meet

competitor” of $7,500. (Id. at 7.) There is no indication that the stated amount was the amount

paid to install the elevator or that it was the total cost to install the elevator. The document states

FINAL DECISION TC-MD 130276D 7

that it “does not include any construction of the required hoistway.” (Id. at 8.) Plaintiff offered

no evidence to show that, even if the document correctly states the amount spent to install the

elevator, the subject property’s real market value was increased by that amount. A residential

elevator is not a common single family residence improvement, and the evidence does not

necessarily support Plaintiff’s estimated real market value.

Plaintiff provided additional evidence in support of his assertion that the subject property

real market value is negatively impacted by deferred maintenance. Plaintiff submitted pictures

of the subject property’s roof and porch railings. (Ptf’s Ex 2 at 14, 16.) Plaintiff testified that the

pictures were taken about a year after the assessment date but reflect the subject property’s

condition as of the assessment date. Those pictures and Plaintiff’s testimony are persuasive

evidence that deferred maintenance issues exist. However, Plaintiff did not provide any

persuasive evidence regarding the cost of the maintenance. Plaintiff’s cost estimates were based

on his determined general estimates taken from vendors’ websites. (See generally Ptf’s Ex 2.)

None of the estimates were verified by licensed contractors. Plaintiff’s cost estimate to rebuild a

portion of the garage is not dated or signed and does not clearly state who or what company

prepared it. (Id. at 17.) Without some explanation of where the costs associated with the repairs

came from, it is not possible to properly weigh the credibility of the evidence. Without credible

evidence, the court cannot make a determination as to the cost to cure the identified deferred

maintenance issues. The court gives no weight to Plaintiff’s cost estimate evidence for any of

the deferred maintenance issues, or for the improvements to the home.

Plaintiff considered two other adjustments, one for being located in a tsunami zone and

one for the purported lack of ocean views from the subject property. (Ptf’s Ex 1 at 40.) Plaintiff

testified that the house is in a tsunami inundation area, but describes the comparable properties as

FINAL DECISION TC-MD 130276D 8

“similar” and made no adjustment for it. (Id.) Plaintiff did not present any evidence that an

additional adjustment was required because the subject property is located in a tsunami zone.

Plaintiff did not support his assertion that a separate adjustment would be required for the subject

property or proof that the tsunami inundation issue was not already reflected in his comparable

properties’ real market values. Plaintiff’s adjustments for views suffer from the same lack of

substantiation as other proposed adjustments. From the few pictures Plaintiff included in his

evidence, it is impossible to determine what the view is from the subject property or any of the

comparable properties. Plaintiff’s supporting evidence for the subject property’s view

adjustments were studies done in different markets in different states (not Oregon) without any

explanation of how those studies relate to the subject property’s location and view. (See Ptf’s Ex

2 at 2.) The court gives no consideration to Plaintiff’s view adjustments and tsunami evidence.

In the absence of supporting evidence and the appraisers’ testimony, the court cannot

place much, if any, weight on Plaintiff’s comparable sales approach. The court finds that

Plaintiff did not meet his burden of proof to support his requested subject property’s real market

value. Even though Plaintiff failed to carry his burden of proof and “the burden of going forward

with the evidence” has not shifted, the court “has jurisdiction to determine the real market value

or correct valuation on the basis of the evidence before the court, without regard to the values

pleaded by the parties.” ORS 305.427; ORS 305.412. The court will now examine Defendant’s

evidence.

Grant stated that “elements of the Cost approach were used to determine RMV,” and that

the “cost approach was considered and stated, but not relied upon individually.” (Def’s Ex A at

2.) Grant provided a summary of the cost approach stating that the “estimate of value based on

the cost approach would be as follows[.]” (Id. at 13.) (Emphasis added.) Grant’s word choice

FINAL DECISION TC-MD 130276D 9

implies that he did not complete the cost approach analysis and he did not include a full cost

approach analysis. Grant provided a ratio study to support his stated land value but provided no

information on how the improvement value was determined. Without a fully developed cost

approach, the court cannot determine the validity of Grant’s determination. The court gives

Defendant’s cost approach no consideration.

Grant relied on the sales comparison approach, using two different sets of comparable

properties. For his first comparison, Grant used two comparable properties that were located

“approximately 2 – 3 blocks South of the subject [property].” (Def’s Ex A at 13.) He

determined that, after appropriate adjustments, the comparable properties “were similar to the

subject property value of $588,449, but in both cases the comparable properties were of lower

class and quality and not as comparable.” (Id.) Based on Grant’s statements that the comparable

properties chosen are not comparable to the subject property, the court gives his first sales

comparison approach little consideration.

Grant’s second sales comparison approach relied on the same comparable properties as

Plaintiff. Grant stated that he adjusted the two sales “by the inverse of the 2013 ratio trends to

bring the sales prices to the estimate price the property would have sold for as of the assessment

date.” (Id. at 14.) He stated that he used “ratios * * * that have been identified in the 2013 Ratio

Study currently under review with the [Department] of Revenue.” (Id.) Grant also determined

that “[f]or the 2012 year * * * there was no time trend for improved properties.” (Id.) Grant

then applied adjustments for “condition, size and other features such as the elevator, vacuum

systems, covered porch etc.” (Id.) After making the adjustments, Grant determined that the

comparable properties were “similar in age and class, but [were] inferior in terms of sq.ft. and

other improvements. After adjustments they are the most comparable * * *.” (Id.)

FINAL DECISION TC-MD 130276D 10

The court agrees that the comparable properties chosen by Plaintiff are the most

comparable to the subject property. The choice to trend the subject property’s real market value

through the use of a 2013 ratio study that is not in evidence makes it difficult for the court to

determine the validity of the analysis. Grant did not submit the ratio study as evidence. From

Grant’s statements it appears as though the ratio study has not yet been approved by the

Department of Revenue. The court lacks any evidence from which to make an independent

determination about its validity. Grant’s analysis relying on the sale prices adjusted by the ratio

study that may not be approved can be given little consideration. Grant’s second sales analysis is

also given little weight.

Although neither Plaintiff nor Defendant was able to support their requested roll value,

the burden falls on Plaintiff. Although this court has the authority to make an independent

determination of value, it must do so based on the evidence before it. Ultimately, there is little, if

any, evidence before the court from which to make an independent determination of the real

market value of the subject property. Without the evidence, the court cannot make an

independent determination.

III. CONCLUSION

After careful review of the evidence and testimony, the court finds that Plaintiff failed to

carry his burden of proof and the court lacks sufficient evidence from which to make an

independent determination of the real market value of the subject property. Now, therefore,

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///

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FINAL DECISION TC-MD 130276D 11

IT IS THE DECISION OF THIS COURT that Plaintiff’s appeal is denied.

Dated this day of December 2013.

JILL A. TANNER

PRESIDING MAGISTRATE

If you want to appeal this Final Decision, file a Complaint in the Regular

Division of the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR

97301-2563; or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.

Your Complaint must be submitted within 60 days after the date of the Final

Decision or this Final Decision cannot be changed.

This document was signed by Presiding Magistrate Jill A. Tanner on

December 5, 2013. The Court filed and entered this document on December 5,

2013.

FINAL DECISION TC-MD 130276D 12

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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