The opinion
IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
JACK YARBROUGH, )
)
Plaintiff, ) TC-MD 250214N
)
v. )
) ORDER GRANTING DEFENDANT’S
MARION COUNTY ASSESSOR, ) MOTION TO COMPEL AND DENYING
) PLAINTIFF’S MOTION TO APPLY
) REGULAR DIVISION TAX COURT
Defendant. ) RULE 39
This matter came before the court on Defendant’s Motion to Compel, filed
August 27, 2025, and Plaintiff’s Motion to Apply Regular Division Oregon Tax Court Rule 39,
filed September 2, 2025. With its Motion, Defendant filed its Affidavit of Scott A. Norris in
Support of Defendant’s Motion to Compel. On September 2, 2025, Plaintiff also filed his
Declaration of Jack R. Yarbrough and a Response to Defendant’s Motion to Compel. The court
heard arguments on the motions during a case management conference held September 3, 2025.
I. STATEMENT OF FACTS
Plaintiff challenges the value of property identified as Account 531295 (subject property)
for the 2024-25 tax year. (Compl at 1.) The subject property includes improvements only—a
metal aircraft hangar—and is sited on real property owned by the City of Salem and located at
the Salem Airport. (Id.; Def’s Mot at 1.) According to Plaintiff, the hangar is “in poor condition
with multiple observable physical obsolescence and disrepair.” (Ptf’s Mot at 2.)
For the 2024-25 tax year, Defendant determined that the subject property’s total real
market value (RMV) was $95,190. (See Compl at 2.) Plaintiff appealed the 2024-25 assessment
to the Marion County Property Value Appeals Board (PVAB). (See id.) Defendant’s appraiser,
ORDER TC-MD 250214N 1
Craig Farnstrom (Farnstrom), testified at the PVAB hearing. (Ptf’s Mot at 1-2.) Prior to the
hearing, Farnstrom physically inspected the subject property. (Id. at 2; Def’s Mot at 2.) Plaintiff
gave Farnstrom full access to the interior and exterior of the property and Farnstrom took
multiple pictures. (Resp at 1.) Following the hearing, PVAB issued a Real Property Order,
determining the RMV of the subject property to be $84,210. (See Compl at 2.) This appeal
followed. In its Answer, Defendant requested an inspection of the subject property. Plaintiff
denied the request in a phone conversation between the parties’ representatives on
August 5, 2025. (Def’s Mot at 2.)
Defendant moves the court for an order, pursuant to Tax Court Rule-Magistrate Division
(TCR-MD) 9 B(2), compelling Plaintiff to allow a site inspection of the subject property.
Plaintiff moves the court for an order authorizing the application of Tax Court Rule (TCR) 39
(Depositions upon Oral Examination) for the purpose of facilitating limited discovery in this
matter. (Ptf’s Mot at 1.) Plaintiff seeks to depose Farnstrom and Marion County Assessor Tom
Rohlfing (Rohlfing) “to establish the department’s general policies and procedures regarding
methods of valuation together with the specific basis for the valuation in this matter.” (Id. at 2.)
II. ANALYSIS
The issues presented are whether to grant (1) Defendant’s Motion, compelling a site
inspection of the subject property; and (2) Plaintiff’s Motion, applying TCR 39 and allowing the
depositions. Plaintiff opposes Defendant’s Motion because Farnstrom previously conducted an
inspection of the subject property prior to the PVAB hearing. (Resp at 2.) Defendant opposes
Plaintiff’s Motion because the information sought is irrelevant in this de novo proceeding and
because Farnstrom’s opinion developed during this proceeding is a protected expert opinion.
///
ORDER TC-MD 250214N 2
A. Defendant’s Motion to Compel Site Inspection
Defendant asks the court to compel a site inspection of the subject property. Discovery is
permitted in the Magistrate Division, including a site inspection, when relevant. See TCR-MD 9
A and 9 B(2). TCR-MD 9 B(2) provides:
“A party may request from the court an order compelling a site inspection.
Before filing a motion to compel a site inspection, the requesting party must make
a written request for a site inspection to the other party and submit a copy of the
written request to the court with the motion.”
Id. Here, Defendant has complied with the rule by making a written request for inspection in its
Answer.
Plaintiff argues that an inspection is unnecessary in this case because Defendant has
sufficient information from the inspection conducted prior to the PVAB hearing. (See Resp at
2.) However, the appeal to this court is de novo or anew. See ORS 305.425(1).1 “Because the
statutes require and allow the court to determine the property’s value anew, an assessor’s request
to inspect the property in order to gather data for trial is likely to be reasonable in many
circumstances.” Salisbury v. Dept. of Rev., 24 OTR 497, 510 (2021). Plaintiff’s “remedy” for
concerns about “the assessor’s intent or competence” is “to present and substantiate his own set
of facts and conclusions.” Id. at 511-12; see also ORS 305.427 (placing on the plaintiff the
burden of proof by a preponderance of the evidence). The court finds that an inspection of the
subject property is relevant in this case because the issue is the subject property’s RMV.
Furthermore, Plaintiff has alleged that the hangar suffers from various observable physical
deficiencies negatively impacting its value, putting the condition of the subject property at issue.
Defendant’s Motion to Compel is granted.
1
The court’s references to the Oregon Revised Statutes (ORS) are to 2023.
ORDER TC-MD 250214N 3
B. Plaintiff’s Motion to Apply TCR 39 and allow Depositions
Plaintiff asks the court to apply TCR 39—Depositions upon Oral Examination—to allow
for depositions of Farnstrom and Rohlfing “to establish the department’s general policies and
procedures regarding methods of valuation together with the specific basis for the valuation in
this matter.” (Ptf’s Mot at 2.) The Magistrate Division’s rules do not provide express guidance
regarding the circumstances under which depositions are appropriate in this division. However,
the preface to the Magistrate Division Rules provides that the magistrate may look to the Regular
Division Rules as a guide to the extent relevant. TCR-MD 9 A provides that “[t]he Regular
Division discovery rules, TCR 36 through TCR 46, will apply only when the court so orders.”
Looking to the Regular Division rules as a guide, TCR 36 A expressly authorizes various
discovery methods, including depositions upon oral examination. The language of TCR 36 A
mirrors language in Oregon Rule of Civil Procedure (ORCP) 36 A authorizing depositions.2
Accordingly, the court considers whether depositions of Farnstrom and Rohlfing would be
allowed under TCR 36 A and ORCP 36 A, as well as whether such depositions are appropriate in
this case while it is pending in the Magistrate Division of the court.
1. Requested deposition of Farnstrom
Defendant opposes Plaintiff’s Motion, arguing that Farnstrom’s prior value opinions are
irrelevant and any opinion developed during this proceeding is a protected expert opinion.3 The
Oregon Supreme Court recognized that the Oregon legislature made a policy choice not to permit
2
Although the ORCPs do not strictly apply in this court, “many Tax Court Rules (TCR) reflect provisions
of the ORCP * * * [and t]o the extent that the wording of a TCR is the same as that of an ORCP, cases interpreting
the ORCP may be looked to as authority for interpreting the TCR.” Preface to Regular Division Rules.
3
The Oregon Evidence Code defines an expert as one whose “scientific, technical or other 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 by knowledge, skill, experience, training or education.” ORS 40.410.
ORDER TC-MD 250214N 4
expert discovery in civil actions in state courts, specifically excluding authorization for expert
discovery from the ORCPs. Stevens v. Czerniak, 336 Or 392, 403-04, 84 P3d 140 (2004).
Notwithstanding the general prohibition on expert discovery, an expert who is a “fact” witness
may be deposed under ORCP 36 B. Gwin v. Lynn, 344 Or 65, 67, 176 P3d 1249 (2008). The
court in Gwin explained,
“a witness may be both an expert witness and a fact witness and, therefore, may
be deposed concerning facts that pertain to the witness’s direct involvement in or
observation of the relevant events that are personally known to the witness and
that were not gathered primarily for the purpose of rendering an expert opinion.”
Id. In a subsequent case, the court applied this rule, looking to a distinction in the federal rules
between “participating experts who are actors in the action[,]” and “nonparticipating experts who
acquire or develop facts or opinions in anticipation of litigation or for trial[.]” Ransom v.
Radiology Specialists of the Northwest, 363 Or 552, 564, 425 P3d 412 (2018). Both types of
witnesses have expert qualifications—that is not the important distinction. See id. at 566.
Rather, the question is how and why the expert acquired or developed the relevant facts and
opinions. See id. at 566-67.
Plaintiff’s request to depose Farnstrom appears intended to ask him about his
determination of the subject property’s RMV for the PVAB appeal. This court denied a similar
request in Susbauer Road LLC v. Washington County Assessor, TC-MD 230056N, 2023 WL
5814377 (Or Tax M Div, Sept 7, 2023). There, the court found that “[w]hen a taxpayer appeals
to BOPTA, the roll value is in dispute, the appeal process has begun, and opinions of value are
developed and presented in connection with litigation.”4 Id. at *3. The court held that the report
and testimony prepared by the county appraiser for the BOPTA hearing were in anticipation of
4
BOPTA refers to the Board of Property Tax Appeals, which was renamed PVAB.
ORDER TC-MD 250214N 5
litigation, so the plaintiff could not question the assessor about the assumptions he made in his
BOPTA report. Id. For the same reasons, Plaintiff’s request to take Farnstrom’s deposition is
denied.
2. Requested deposition of Rohlfing
It appears the purpose of Plaintiff’s request to depose Rohlfing is “to establish the
department’s general policies and procedures regarding methods of valuation.” That request is
vague and does not appear relevant to the determination of the subject property’s RMV in this
matter. Plaintiff’s request to depose Rohlfing is therefore denied.
Plaintiff’s request to apply TCR 39 to this matter appears limited to allow for depositions
of Farnstrom and Rohlfing. Consequently, Plaintiff’s Motion is denied.
III. CONCLUSION
Upon careful consideration, the court grants Defendant’s Motion to Compel a site
inspection and denies Plaintiff’s Motion to Apply Regular Division Oregon Tax Court Rule 39.
Now, therefore,
IT IS ORDERED that Defendant’s Motion to Compel a site inspection is granted.
Plaintiff shall allow an inspection of the subject property within 30 days of the date of this order,
or Plaintiff’s appeal will be dismissed. The parties will file a joint written status report with the
court within 30 days after the site inspection has been conducted.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Apply Regular Division Oregon
TCR 39 is denied.
This interim order may not be appealed. Any claim of error in regard to this order should be raised in
an appeal of the Magistrate’s final written decision when all issues have been resolved. ORS 305.501.
This Order was signed by Presiding Magistrate Allison R. Boomer and entered on November 5, 2025.
ORDER TC-MD 250214N 6