105 Wash. App. 563 | Wash. Ct. App. | 2001
This case involves the valuation, for property tax purposes, of 10 low-income housing projects. The Board of Tax Appeals held that the projects should be assessed as though they were unrestricted market-rent housing, and that the interest subsidies and tax credits used to finance the projects should be considered in the estimation of value. We reverse.
The projects were developed and are operated by five nonprofit, tax-exempt organizations whose purpose is to develop low-income housing. Each project is subject to restrictive covenants, recorded against the real property title, that limit eligible tenants to low-income persons and limit the amount of rent that can be charged to the tenants.
The Assessor initially assessed all 10 projects using either a cost approach,
Appellants disagreed with these assessments, arguing that all 10 units should be assessed under the capitalization of income method, with the income determined by the restricted rents.
By the time the parties reached the BTA, the Assessor had come to agree with the appellants as to the six Loan Projects.
As to the four Tax Credit projects, the Assessor also agreed that the proper valuation technique was the income method, using restricted rents. However, the Assessor argued that a value for the tax credits should be added to the resulting valuations.
After a formal hearing, the BTA adopted the values initially determined by the Assessor. The BTA reasoned that, because the appellants entered into the recorded rent restrictions voluntarily, the Assessor was not required to use restricted rents to determine income under the capitalization of income method.
This appeal followed.
STANDARD OF REVIEW
Judicial review of agency orders is governed by the Administrative Procedure Act (APA), RCW 34.05.570(3).
DISCUSSION
The first issue is whether the Board, in valuing the properties, should have taken the rent restrictions into account. RCW 84.40.030 requires that all property be assessed at 100 percent of its “true and fair value in money.” The phrase “true and fair value in money” has been consistently interpreted to mean “fair market value.”
Even under the portion of the statute applicable to this case, RCW 84.40.030(2), the fact that the rent restrictions were “voluntary” is not dispositive of the issue of valuation. Even a voluntary transaction burdening real property will have economic consequences that must be considered in assessing the property. For example, in Twin Lakes, a developer agreed to record use covenants against the title to a golf course that was part of the project; the covenants provided that all residents within the project area would have the right to use the golf course for 20 years.
In Sahalee Country Club, Inc. v. Board of Tax Appeals,
A similar question was presented in Folsom v. County of Spokane
Although the [reasoning in the out-of-state cases] may be accurate to an extent, it does not comport with Washington’s “willing buyer-willing seller” test, which has been superimposed by regulation and decision over all real property valuation approaches, including the income approach. See Duwamish Warehouse Co. v. Hoppe, 102 Wn.2d 249, 254, 684 P.2d 703 (1984). Even if a disadvantageous lease can be attributed to imprudence, the property’s value must reflect what a willing buyer would pay; a willing buyer would not pay full market value for property burdened by a long-term lease at below-market rates.[29 ]
The Court further discussed the “willing buyer-willing seller” test as follows:
Returning to Washington’s “willing buyer-willing seller” test, a purchaser clearly would be unwilling to pay the capitalized value of fair market rent for property, such as the Owners’, encumbered by a long-term lease at below-market rates. To disregard this lease “would be to disregard a factor which plainly would affect the price negotiations between a willing buyer and a willing seller.” Duwamish Warehouse Co. v. Hoppe, 102 Wn.2d 249, 256, 684 P.2d 703 (1984). As stated in Duwamish Warehouse, such a “result is a nonuniform valuation much higher than the true and fair market value in money which the statute commands.” Duwamish Warehouse, at 256.[30 ]
Furthermore, the BTA erred in holding that the federal tax credits
ATTORNEY FEES
Appellants have requested attorney fees under RCW 4.84.350, which provides for an award of attorney fees to a qualified party that prevails in a judicial review of an agency action.
any state board, commission, department, institution of higher education, or officer, authorized by law to make rules or to conduct adjudicative proceedings, except those in the legislative or judicial branches, the governor, or the attorney general*572 except to the extent otherwise required by law.[36 ]
The Assessor is not authorized by law to either make rules or conduct adjudicative proceedings. Rule making is performed by the Department of Revenue, and the boards of equalization and Board of Tax Appeals conduct adjudicative proceedings.
We reverse the final decision of the Board of Tax Appeals and remand to the Board to determine the values of the projects in accordance with this Court’s decision. We further direct the King County Assessor and Treasurer to change and correct the assessment and tax rolls of King County accordingly.
Agid, C.J., and Baker, J., concur.
Document Index at 185.
These projects will be called “the Loan Projects.”
See I.R.C. § 42. These projects will be called “the Tax Credit Projects.”
The cost approach estimates the cost of producing a new or substitute property and adjusts tins estimated cost for differences in age, utility and condition between the subject property and a new property.
The comparable sales approach estimates market value by comparing properties similar to the subject property that have recently been sold or are listed for sale.
The income approach analyzes a property’s ability to generate income and reversion and converts these benefits into an indication of present value.
Clerk’s Papers (CP) at 19.
CP at 22.
CP at 22.
CP at 19, 20.
CP at 20.
CP at 20, 21.
CP at 26, 27.
CP at 57.
Callecod v. State Patrol, 84 Wn. App. 663, 670, 929 P.2d 510 (1997).
Tapper v. State Employment See. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).
William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn. App. 403, 407, 914 P.2d 750 (1996).
Russell v. Dep’t of Human Rights, 70 Wn. App. 408, 412, 854 P.2d 1087 (1993).
Bitney v. Morgan, 84 Wn.2d 9, 14, 523 P.2d 929 (1974).
Mason County Overtaxed, Inc. v. Mason County, 62 Wn.2d 677, 683-84, 384 P.2d 352 (1963).
1965 Op. Att’y Gen. No. 65; WAC 458-12-300.
Twin Lakes Golf & Country Club v. King County, 87 Wn.2d 1, 4, 548 P.2d 538 (1976).
CP at 55.
Twin Lakes Golf & Country Club v. King County, 87 Wn.2d 1, 2-3, 548 P.2d 538 (1976).
108 Wn.2d 26, 735 P.2d 1320 (1987).
106 Wn.2d 760, 725 P.2d 987 (1986).
106 Wn.2d at 766-67.
“ ‘Incurable functional obsolescence is “Functional obsolescence that results from structural deficiencies or superadequacies that the prudent purchaser or owner would not be justified in replacing, adding, or removing, because the cost of effecting a cure would be greater than the anticipated increase in utility resulting from the replacement, addition or removal.” ’ (Footnotes omitted.) Bryl [sic] N. Boyce & William N. Kinnard, Jr Appraising Real Property 298-99 (1984) (quoting Real Estate Appraisal Terminology 114 (Byrl N. Boyce ed., rev. ed. 1981)).” Weyerhaeuser Co. v. Easter, 126 Wn.2d 370, 385-86, 894 P.2d 1290 (1995).
Tax credit properties are often superadequate due to unique property characteristics and development expenses. See Br. of Appellant at n.18.
The deed restrictions affect the income-producing ability of the projects and thus affect their value. As a result, if the Assessor considers the deed restrictions’ effect on the rental income generated by the projects, the Assessor may conclude that the deed restrictions cause the projects to suffer economic obsolescence. See, e.g., Pedcor Invs.-1990-XIII, L.P. v. State Bd. of Tax Comm’rs, 715 N.E.2d 432, 437 (Ind. Tax Ct. 1999).
While we do not hold that the Assessor must use any one of the three available appraisal methods to the exclusion of the other two, we hold that, regardless of the method used, the rent restrictions should be taken into account by the Assessor. However, we do note that the Department of Revenue (DOR), as amicus, has argued that “the preferred approach to valuing low-income housing... is to capitalize net operating or actual income.” DOR Br. at 10 (footnote omitted). Furthermore, the cost method is generally preferred only where the properties being appraised “are not amenable to valuation by the income capitalization approach.” Appraisal Institute, The Appraisal of Real Estate 338 (11th ed. 1996). Finally, the appraisal literature and case law regarding rent-restricted low-income housing argue against the use of the cost method. See, e.g., David C. Nahas, Appraising Affordable Multifamily Housing, Appraisal Journal, July 1994; Richard E. Polton, Valuing Property Developed with Low-Income Housing Tax Credits, Appraisal Journal, July 1994; Laurence G. Allen, Valuing Subsidized Housing for Property Tax Purposes, Appraisal Journal, Jan. 1986. See also Cmty. Dev. Co. of Gardner v. Bd. of Assessors, 377 Mass. 351, 385
The low-income housing tax credit is available for certain low-income housing projects. I.R.C. § 42(a), (c)(2), (g). In order to qualify for that credit, the owner of, or investor in, an apartment complex must make available a certain number of rental units in the project for use by the general public on a residential basis for not less than 15 years. I.R.C. § 42(g), (i)(l).
RCW 4.84.350. “Judicial review of agency action — Award of fees and expenses. (1) Except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys’ fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust. A qualified party shall be considered to have prevailed if the qualified party obtained relief on a significant issue that achieves some benefit that the qualified party sought.”
RCW 4.84.340(1).
See RCW 84.08.010.
See RCW 34.05.010(3): “ ‘Agency action’ means licensing, the implementation or enforcement of a statute, the adoption or application of an agency rule or order, the imposition of sanctions, or the granting or withholding of benefits.”