Menard, Inc., Relator v. County of ClayMenard, Inc., Relator v. County of Clay
OPINION
Rеlator Menard, Inc. appealed to the tax court from respondent Clay County’s assessment of the market value of Menard’s Moorhead home improvement retail store for the assessment dates of January 2, 2011; January 2, 2012; January 2, 2013; and January 2, 2014. Following a trial, the tax court adopted market valuations below the County’s assessment values but above Menard’s expert appraiser’s valuation. Menard appealed.
In this appeal from the tax court’s final order and .judgment, Menard asserts that the tax court erred in several respects: (1) the tax court rejected Menard’s expert appraiser’s highest and best use determination, (2) the tax court made improper calculations when it determined the fair market value of the property using the cost approach, (3) the tax court used a “de facto averaging” of the cost approach and the sales comparison approach when it determined the fair market value of the property, and (4) the tax court failed to adequately explain its reasoning.
The County also appealed, asserting that the tax court erred in its calculations and conclusions of value using the sales comparison and cost approaches. Because the tax court did not err in its findings and did not fail to adequately explain its reasoning, we affirm the tax court’s value determinations.
I.
■This appeal concerns the tax value of a Menards home improvement retail store in Moorhead as of January 2, 2011 through January 2, 2014. The store is located on a parcel of approximately 771,350 square feet with two structures. The first structure,-the main building, consists of a single-story heated retail space with an аdditional mezzanine space and a covered and unheated garden center. The second structure is an open-air detached shed, used as a warehouse. Built in 2007, the structures were in good condition as of each assessment date, and are visible and accessible from the nearby interstate highway. The Clay County Assessor valued the property at $11,200,000 for all four assessment dates. Menard challenged these assessments, and a trial ensued before the tax court.
Finding that Menard overcame the pri-ma facie validity of the Clay County Assessor’s valuation, the tax court then considered the appraisal opinions of each expert. The tax court rejected Menard’s highеst and best use determination and instead adopted the County’s view that the highest and best use of the property as-vacant was commercial property and as-improved was continued use as a big-box retail store. The tax court rejected the County’s income capitalization analysis. 1 After rejecting most of the comparable sales used in the parties’ sales comparison analyses, and making adjustments to the sales price of the remaining comparables, then making adjustments to the parties’ cost analyses, the tax court gave its cost approach calculation a 60-percent weighting and its sales comparison approach a 40-percent weighting for appraisal years 2011 and 2012. The tax court assigned each approach a 50-percent weighting for valuation years 2013 and 2014.
The рarties moved for amended findings of fact and conclusions of law, but the tax court adjusted its order only to account for inaccurate calculations for physical deterioration and to grant Menard its unopposed request for equalization relief. The assessed values, appraised values, and the tax court’s values for the property are as follows:
Appraisal County County’s Menard’s Tax Court Tax Court Year Assessor Appraiser Appraiser Order Amended Order (Vergin) (MaRous)
2011 $11,200,000 $12,000,000 $4,000,000 $7,432,100 $7,516,600
2012 $11,200,000 $12,300,000 $4,000,000 $7,585,800 $7,681,300
2013 $11,200,000 $12,500,000 $4,000,000 $7,219,000 $7,331,300
2014 $11,200,000 $12,700,000 $4,000,000 $7,393,600 $7,556,200
Menard appealed the tax court’s decision, arguing that the tax court erred in rejecting MaRous’s highest and best use determination, in its cost approach calculations, in averaging the sales comparison and cost approaches, and in failing to adequately explain its reasoning. The County also appealed, contending thаt the tax court erred in accepting parts of MaRous’s appraisal report and testimony, in excluding post-sale expenditures and other comparable sales in its sales comparison approach, and in excluding indirect soft costs in its cost approach.
“Our review of [a] final order of the tax court is limited.”
S. Minn. Beet
Our deferential review is rooted in the separation of powers and the inexact nature of real estate appraisal.
Cont’l Retail, LLC v. Cty. of Hennepin,
II.
We first consider the tax court’s rejection of Menard’s highest and best use determination. All property must be valued at. its market value, Minn.Stat. § 273.11, subd. 1 (2014), which is the “usual selling price at the place where the property ... shall be at the time of assessment,” Minn.Stat. § 272.03, subd. 8 (2014). “Appraisers must perform a highest and best use analysis when appraising commercial real estate.”
Berry & Co. v. Cty. of Hennepin,
Highest and best usé analysis can be approached in two ways. The first assumes that the property is vacant or can be made vacant by demolishing present improvements. Appraisal Institute,
supra,
at 336;
see also Ferche Acquisitions, Inc. v. Cty. of Benton,
Both experts provided opinions on the highest and best use оf Menard’s property “as-vacant” and “as-improved.”
2
MaRous found that the highest and best use of the
Vergin found that, as-improved, the property and its improvements were suited to its current use as a big-box retail store. Vergin relied on evidence that showed no excess supply of vacant big-box stores in the local market and evidence that the 2008 recession impacted that market less than many other communities.
The tax court found that, for all valuation dates, the property’s highest and best use as-improved was continued use as a big-box retail store. The tax court rejected MaRous’s analysis because of its “general and abstract character,” noting that he “never descended to [the required level] of particularity in concluding that the property was not a viable big box retail store.” The tax court also rejected .Ma-Rous’s conclusions regаrding the impact of the 2008 recession on big-box stores in the Fargo/Moorhead area because MaRous recognized that the “magnitude and duration of the downturn depended a great deal on a number of factors including location [and] local demographics,” a high growth rate, and a low unemployment rate. The record also included evidence that “home improvement stores are not as vulnerable to online sales” as other large retailers, and some big-box retailers are moving toward even larger facilities rather than downsizing.
Taking all these factors into consideration, the tax court found:
1-. “Fargo/Moorhead had an unusually strong and stable economy ... and the area was experiencing steady population and wage growth,”
2. “Moorhead’s development of an eastward growth ring was proceeding much more quickly than anticipated,”
3. “[t]here was at most one vacant big box store[ ] in the entire Fargo/Moorhead area,” and
4. “the subject property was a recently-constructed typical big-box store with both good visibility and recently augmented access from Interstate 94.”
The record supports the tax court’s findings. First, the tax court relied on population demographics, high growth, and a low unemployment rate in the Fargo/Moor-head area. Second, the tax court deemed Menard’s Moorhead-specific analysis unpersuasive because it was based on national data that did not apply specifically to the property. The tax court acknowledged that Menard’s retail sales at the property were less than those at its nearby store in North Dakota, but it noted that many big-box retailers have several locations, and even those big-box retailers located on the more prosperous side of the local market may still choose to build another store in the area. The tax court’s determination— that the highest and best use of Menard’s property was as a big-box retail store— was well supported by the record.
J—\ i—i 1—1
Next, we review the parties’ objections to the- tax court’s calculations under the cost approach. We recognize three approaches for determining the market value of real estate: the sales comparison approach; the income capitalization approach; and the cost approach.
See Equitable Life Assurance Soc’y of U.S. v. Cty. of Ramsey,
“Under ' [this] approach, the appraiser determines the current cost of constructing the existing improvements on the property, subtracts depreciation to determine the current value of the improvements, and then adds the value of the land to determine the market value.”
Cont’l Retail LLC v. Cty. of Hennepin,
The tax court first determined a value for the property site by considering comparable sales transactions, then adjusted the resulting value figure for the cost of improvements and a 10-percent entrepreneurial incentive, and finally adjusted for depreciation, including functional and external obsolescence. Menard challenges three elements of.the tax court’s.analysis: (1) adjusting for a 10-percent entrepreneurial incentive, (2) rejecting MaRous’s market extraction theory for calculating total depreciation, and (3) refusing to adjust for external obsolescence. The County raises one issue related to the tax court’s cost analysis: error in excluding indirect soft costs when adjusting for, improvements. We address each issue in turn.
A.
We begin with the tax court’s adjustment to the site value using a 10-percent entrepreneurial incentive. Entre
Menard asserts that adjustment for an entrepreneurial incentive was improper because the property is owner-occupied rather than for sale or other use. But this factor is not determinative.
See, e.g., Nw. Racquet Swim & Health Clubs, Inc. v. Cty. of Dakota,
MaRous did not include an entrepreneurial incentive in his calculations, noting that “[i]n the subject’s case, and like virtually all big box retail stores, consideration for entrepreneurial profit is not applicable.” Vergin, on the other hand, included a 10-percent entrepreneurial incentive in his cost approach calculations, explaining that he added that sum because it “is compensation to the entreprenеur for ... going at risk to build the asset.”
The tax court agreed with Vergin, relying on the principle that “any building project will include an economic reward (above and beyond direct and indirect costs) sufficient to convince an entrepreneur to take on the risk associated with that project in that market.” See Appraisal Institute, supra, at 573. Although we may have come to a different conclusion had we been the initial fact-finder, the tax court’s decision has support in the record, and we are not left with a definite and firm conviction that an error was committed.
B.
We next address the County’s assertion that the tax court failed to account for all indirect soft costs in its adjustments to property value. Soft costs are those costs “generally related to the size and cost of the project,” including indirect soft costs such as “architectural fees and property taxes.” Appraisal Institute, supra, at 572.
The parties’ experts compared Menard’s actual 2007 costs—when the buildings were constructed and the land was improved—with the estimated costs provided by a valuation service, Marshall & Swift Valuation Service (Marshall & Swift). The tax court found errors in Vergin’s calculations, noted that MaRous’s adjustments to actual site-improvement costs were “unchallenged by the County,” and based on the evidence in the record, preferred Ma-Rous’s cost calculations. The County asserts that this decision is erroneous because MaRous admitted that he did not know what the soft costs were for the 2007 project, and Menard’s cost statement did not identify any soft costs.
Although the tax court acknowledged that MaRous’s actual cost figures did not include soft costs, it nonetheless found that
These findings have ample support in the record. Given the tax court’s explanation for accepting MaRous’s cost adjúst-ments and rejecting Vergin’s, we conclude that the tax court’s adjustments for soft costs were well supported by record evidence.
C.
We now turn to Menard’s challenges to the tax court’s deductions for depreciation. Depreciation represents “losses in the value of improvements due to the effects of age, wear and tear, and other causes.” Appraisal Institute,
supra,
at 576. Three major causes of depreciation exist: physical deterioration, funсtional obsolescence, and external obsolescence, all of which can operate separately or in combination.
Id.; see also Guardian Energy,
We begin with Menard’s argument regarding the market-extraction method used to calculate depreciation. 4 The market-extraction method “relies on the availability of comparable sales from which depreciation can be extracted,” but it is used only when “the quality of th[e] data is adequate to permit meaningful analysis.” Apрraisal Institute, supra, at 605. This “method is difficult to apply when the type or extent of depreciation varies greatly among the comparable properties due to characteristics other than age.” Id. at 610.
Relying on data drawn from 27 separate sales transactions, MaRous used the market-extraction method to “test the reasonableness of [his] total depreciation estimate,” which was 79 percent or 80 percent for each year. The tax court identified several concerns with MaRous’s comparable transactions. First, most of the primary comparables—a group of seven instate transactions—were not comparable in age. Second, comparables similar in age were closed for “insufficient sales,” suggesting that the “depreciation at these stores may well be attributable to external obsоlescence not shared by the subject property.” Finally, two of the older stores that were sold had been replaced by newer stores, suggesting that any depreciation was attributable to factors not shared by the Menard’s store. Thus, the tax court concluded that “MaRous’s application of market extraction to the primary set was inappropriate, and his results unreliable.”
Menard argues that the tax court improperly speculated about the accuracy of MaRous’s depreciation analysis and erroneously substituted its own view of comparability.
See Guardian Energy,
Based on the entire record, we conclude that the tax court’s decision to reject Ma-Rous’s. market-extraction analysis, was supported by the record.
D.
Menard also challenges the tax court’s finding that. Menard’s Moorhead store suffered no external obsolescence on any of the valuation dates. External, or economic, obsolescence “is the measurement of a property’s loss in value as a result of factors beyond the physical boundaries of the property and beyond the owner’s control.”
Guardian Energy,
MaRous estimated external obsolescence at 10 percent, relying on “the on-going recession and ... its adverse and significant impact on all segments of the real estate market.” Menard also presented evidence regarding the inferiority of the Moorhead area on the Minnesota side of the river, as compared with the Fargo area on the North Dakota side, in terms of “population and income market demographics,” as well as a “glut of vacant big-box retail stores.” The tax court found that the property suffered from no external obsolescence and noted that Menard’s 10-pereent estimate was “based exclusively on broad generalizations and on national rather than local data” and the specific property.
Menard failed to present any evidence showing that online sales have affected lumber and home improvement stores and that nationwide economic trends produced external obsolescence in Moor-head.
5
Menard also failed to address evidence showing that some big-box retailers are building even larger big-box stores. In addition, Peter Doll, a witness for the County who values property for tax purposes and is involved in economic development, testified to the strong market for large retail stores in the Moorhead market. On this record, the tаx court’s finding that the subject property suffered no external obsolescence was not clearly erroneous.
See Nw. Racquet Swim & Health Clubs,
■ In conclusion, the tax court’s calculations under the cost approach were supported by the record. Therefore, we affirm the tax court’s cost approach calculations.
IV.
We next consider the County’s challenges to the tax court’s calculations in
The County raises two challenges to the tax court’s sales comparison analysis. First, the County argues that the tax court improperly rejected several of its comparable sales simply because those transactions were not also considered by Menard’s expert, MaRous. Second, the County objected to the tax court’s adjustment to exclude post-sale costs incurred in the transaction for Lowe’s-Cambridge. .
The County’s expert, Vergin, considered eleven comparable transactions, using a gross building area of 236,429 square feet, which included the main, building, the mezzanine space, the covered and unheated space, and the detached open-air shed. MaRous considered seven transactions using a gross building area of 162,340 square feet, which comprised the main building’s enclosed, heated space and excluded the mezzanine and covered, unheated space.
The tax court, using MaRous’s gross building area of 162,340 square feet, agreed with MaRous that the main building’s covered and unheated space and the detached open-air shed “would likely have ‘very little contributory impact on value’ ” and that “the ‘[m]ore appropriate treatment of this space may be achieved by ... applying an upward adjustment’ for the excluded spaces.” The tax court noted that “Vergin agreed that [the] market would not attach any value” to the mezzanine space.
The tax court also noted that the property was unique, and “[a] significant factor in the selection of sales comparables ... is the main building’s ... covered/unheated space, and the property’s .., detached open-air shed,” With this standard in mind, the tax court identified four comparable sales transactions the appraisers had in common. Three of those common sales had similar covered and unheated space, were relatively close in gross building area (excluding covered and unheated space), and had sale dates in late 2012—close to the center of the four valuation dates. Given these similarities to the property, the tax court used these three transactions as comparable sales transactions.
The County argues that the tax court should have included three of its offered transactions because they are “very comparable” and require “the least amount of adjustment.”. We will not disturb the tax court’s decision to rely on some, but not all, offered comparables.
See KCP Hastings,
The County argues that the tax court should have excluded the Lowe’s-Rogers sale (comparable No. 5), even though the County relied on this transaction, because the sale “had severe use restrictions in place.” Based on a limited-use restriction in the warranty deed for comparable No. 5, the tax court adopted a 15-percent adjustment for each valuation date, finding that a use restriction “imposes a genuine constraint on the ... property for seven years.” The County contends that the use restriction adjustment Vergin' proposed—75 percent—had more support in the record than the 5-percent adjustment that MaRous proposed. The tax court considered both experts’ testimoriy and evidence, rejected Vergin’s speculation about the effect of the use restriction for comparable No. 5, and determined that a 15-percent adjustment adequately reflected the constraint imposed by the restriction, which was “limited in both scope and duration.” We do not disturb the tax court’s determinations on comparable transactions, particularly when credibility determinations are at issue,
see Archway Mktg. Servs. v. Cty. of Hennepin,
We next consider the County’s objection to the tax court’s exclusion of post-sale costs incurred in the transaction for Lowe’s-Cambridge. Post-sale costs, .such as costs to “demolish and remove a portion of the improvements,” can be added to the sales price of a comparable property if the buyer and the seller have anticipated such costs. Appraisal Institute, supra, at 412-13. In the Lowe’s-Cambridge trаnsaction, the Lowe’s property was purchased by Mills Fleet Farm, which then incurred expenses to remove Lowe’s trade-dress improvements from the property.
No evidence in the record shows, however, that Lowe’s anticipated the $2.8 million that Mills Fleet Farm spent to remove Lowe’s trade dress and to construct its own. Here, Vergin was questioned at length during the trial as to whether Lowe’s knew of the $2.8 million that Mills would have to spend. After a lengthy exchange, the appraiser agreed that “[Lowe’s] may not have known what was going to be spent by ... Mills.” Because evidence of actual assumptions made by Lowe’s regarding post-sale costs is not in the record, the tax court did not clearly err by declining to consider those costs as part of its calculations under the sales comparison approach. 6
V.
Finally, we consider the objection by Menard to the tax court’s weighting of the cost approach and the sales eompari-
All real property is assessed based on market value, that is, the price at which property could be sold at a private sale. Minn.Stat. §§ 273.11, subd. 1, 272.03, subd. 8 (2014). We have said that the “sale value [of property], not the actual value, is what must control” any determination of market value.
State v. Russell-Miller Milling Co.,
Menard contends that the tax court’s job was done once it determined that the sales comparison approach provided a reliable indicator of market value. The sales comparison approach “must be given the full weight it legally deserves” according to Menard. If by this declaration Menard insists that the tax court erred by failing to rely on the sales comparison approach alone, we have already rejected this argument. We have, said that “appraisal is an inexact value determination” and an “estimate of value.”
Lewis & Harris v. Cty. of Hennepin,
Thus, we have allowed the tax. court to detеrmine market value by considering more than one approach.
See id.
(“Viewing value from three different perspectives may help the appraiser arrive at an estimate closer to actual market value than if the property were viewed from a single perspective.”);
see also Am. Express Fin. Advisors,
Menard further asserts that the tax court erred in its decision by giving the cost approach and the sales comparison approach varying weights when determining market value and by failing to explain its reasoning. We disagree.
“The respective weight placed upon each of the three traditional аpproaches to value depends on the reliability of the data and the nature of the prop
To be sure, the tax court must provide adequate reasoning for its valuation determinations.
Archway Mktg. Servs. v. Cty. of Hennepin,
In its final reconciliation, the tax court found that “the cost approach [was] well supported and [was] appropriately used give[n] the recent vintage of the subject property’s improvements.” The tax court also found that the sales comparison approach “produces reliable indications of market value.” The tax court determined that, for the 2011 and 2012 valuation dates, it was appropriate to give the cost approach 60-percent weight and the sales comparison approach 40-percent weight because “the subject property’s improvements were only four years old on the first valuation date.” The tax court gave the sales comparison approach and the cost approach equal weighting (50 percent each) for the 2013 and 2014 . valuatiоn dates.
The tax court provided a reasonable explanation of the circumstances that justified the use of the cost approach; First, the tax court found that because the property was “relatively new construction,” substantial reliance on the cost approach was proper.
See Guardian Energy LLC v. Cty. of Waseca,
Third, the tax court reiterated that it had “substantial misgivings about the comparable sales in this case,” and this concern with Menard’s, comparable sales affected the tax court’s “confidence in, and final weighting of, the salеs comparison approach.” Specifically, the tax court stated that “Menard’s occupancy-only theory necessarily suggests that sales of big box retail stores are extraordinary events that must be carefully analyzed for comparability,” but the parties did not include “any trade-area analysis for any of the proffered comparable sales.” This failure left the tax court “with no objective basis for evaluating the true comparability of the subject property to the proffered compara-bles with respect to a critical factor ... the quality of [the] retail location.” Based on its reservations, the tax court concluded that “the sales comparison approach ,.. was not entitled to controlling weight,” The tax court found in its amended order that this “judgment was well within [its] discretion.”
We agree. “[T]he weight рlaced on each approach depends on the facts of each case,”
Cont'l Retail LLC v. Cty. of Hennepin,
In sum, the tax court properly exercised its broad discretion in weighting the sales comparison approach and the cost approach for thе four valuation years at issue. Moreover, the tax court adequately explained its reasoning for that decision.
Affirmed.
Notes
. The County did not appeal this determination.
. Menard appealed only the tax court’s as-improved determination. We do not consider whether the tax court’s as-vacant determination was clearly erroneous.
. The parties' appraisers used an income capitalization approach, although MaRous ultimately relied on the sales comparison approach. The County does not challenge the tax court's decision that.it had "no reliable market value indication under the income capitalization approach.”
. Total depreciation can be calculated using any of the following, either individually or in combination: the market-extraction method, the economic age-life method, or the breakdown method. Appraisal Institute, supra, at 597. Menard’s expert used a "modified” economic age-life' method and a market-extraction method for estimating total depreciation. Only the market-extraction method is at issue on appeal.
. Specifically, during, the valuation period the Fargo/Moorhead area had an unusually strong and stable economy compared with many other communities; the area was experiencing steady population and wage growth; and there was, at most, one vacant big-box store in the Fargo/Moorhead area.
. The tax court characterized post-sale costs as functional obsolescence under the cost approach. Functional obsolescence is the "inadequacy or obsolesсence of a facility due to developments which have made it incompetent to perform its function properly or economically, ... or the inability of a structure to perform adequately the function for which it is currently employed.”
In re McCannel,