Newton Timber Co., L.L.L.P. v. Monroe County Board of Tax AssessorsNewton Timber Co., L.L.L.P. v. Monroe County Board of Tax Assessors
Case Information
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FINAL COPY
S13A1566. NEWTON TIMBER COMPANY, L.L.L.P. et al. v.
MONROE COUNTY BOARD OF TAX ASSESSORS et al.
H INES , Presiding Justice. This is an appeal by landowners from the Superior Court of Monroe County’s denial and dismissal of their petition for a writ of mandamus and related adverse rulings involving their real property tax appeals. For the reasons that follow, we affirm.
The appellants include various entities and individual members of the
Newton family (hereinafter “Newton Entities”) who collectively own numerous
parcels of land totaling thousands of acres in Monroe County. Beginning in 2008
and continuing each year through 2012, Newton Entities contested the tax
assessments made by the Monroe County Board of Tax Assessors (“Board”) for
their properties, totaling more than 100 separate tax appeals. See
(b) (1) In all cases where unreturned property is assessed by the county board of tax assessors after the time provided by law for making tax returns has expired, the board shall add to the amount of state and county taxes due a penalty of 10 percent of the amount of the tax due or, if the principal sum of the tax so assessed is less than $10.00 in amount, a penalty of $1.00. The penalty provided in this subsection shall be collected by the tax collector or the tax commissioner and in all cases shall be paid into the county treasury and shall remain the property of the county.
(2) (A) The provisions of paragraph (1) of this subsection to the contrary notwithstanding, this paragraph shall apply with respect to counties having a population of 600,000 or more according to the United States decennial census of 1970 or any future such census.
(B) In all cases in which unreturned property is assessed by the board after the time provided by law for making tax returns has expired, the board shall add to the assessment of the property a penalty of 10 percent, which shall be included as a part of the taxable value for the year.
(c) Real property, the value of which was established by an appeal in any year, that has not been returned by the taxpayer at a different value during the next two successive years, may not be changed by the board of tax assessors during such two years for the sole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court. In such cases, before changing such value or decision, the board of assessors shall first conduct an investigation into factors currently affecting the fair market value. The investigation necessary shall include, but not be limited to, a visual on-site inspection of the property to ascertain if there have been any additions, deletions, or improvements to such property or the occurrence of other factors that might affect the current fair market value. If a review to determine if there are any errors in the description and characterization of such property in the files and records of the board of tax assessors discloses any errors, such errors shall not be the sole sufficient basis for increasing the valuation during the two-year period.
(d) When real or personal property is located within a municipality whose
boundaries extend into more than one county, it shall be the duty of each board of tax
assessors of a county, wherein a portion of the municipality lies, to cooperatively
investigate diligently into whether the valuation of such property is uniformly assessed
with other properties located within the municipality but outside the county where such
property is located. Such investigation shall include, but is not limited to, an analysis of
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Board of Equalization (“BOE”), which heard the appeals in March 2010. See
(1) (A) Any taxpayer or property owner as of the last date for filing an appeal may elect to file an appeal from an assessment by the county board of tax assessors to either:
(i) The county board of equalization as to matters of taxability, uniformity of assessment, and value, and, for residents, as to denials of homestead exemptions pursuant to paragraph (2) of this subsection;
(ii) An arbitrator as to matters of value pursuant to subsection (f) of this Code section; or
(iii) A hearing officer as to matters of value and uniformity for a parcel of
nonhomestead real property with a fair market value in excess of $1 million pursuant to
subsection (e.1) of this Code section. . . .
The taxpayer or the county board of tax assessors may appeal decisions of the county board of equalization or hearing officer, as applicable, to the superior court of the county in which the property lies. By mutual written agreement, the taxpayer and the county board of tax assessors may waive an appeal to the county board of equalization and initiate an appeal under this subsection. A county board of tax assessors shall not appeal a decision of the county board of equalization or hearing officer, as applicable, changing an assessment by 20 percent or less unless the board of tax assessors gives the county governing authority a written notice of its intention to appeal, and, within ten days of receipt of the notice, the county governing authority by majority vote does not prohibit the appeal. In the case of a joint city-county board of tax assessors, such notice shall be *4 BOE, which appeals were heard in March 2012. Dissatisfied with these BOE decisions, Newton Entities again appealed to the superior court. They filed notices of appeal as to the 2012 tax assessments for certain parcels directly to the superior court in July 2012. Newton Entities did not pay the filing fees for the five years of tax appeals to the superior court.
In April 2011, Newton Entities submitted a Conservation Use Value
Assessment application (“CUVA”) for 18 different parcels. See
(a) Except as otherwise provided in this Code section, taxable tangible property shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's fair market value.
(b) Tangible real property which is devoted to bona fide agricultural purposes as defined in this chapter and which otherwise conforms to the conditions and limitations imposed in this chapter shall be assessed for ad valorem property tax purposes at 75 percent of the value which other tangible real property is assessed and shall be taxed on a levy made by each respective tax jurisdiction according to said assessment.
(c) Tangible real property which qualifies as rehabilitated historic property pursuant to the provisions of Code Section 48-5-7.2 shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's fair market value. For the purposes of this subsection, the term “fair market value” shall mean the fair market value of rehabilitated historic property pursuant to the provisions of subparagraph (C) of paragraph (3) of Code Section 48-5-2.
(c.1) Tangible real property which qualifies as landmark historic property pursuant to the provisions of Code Section 48-5-7.3 shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction *5 application. All of these applications were approved in 2011 for a period to begin on January 1, 2011.
Over a year later, on October 2, 2012, Newton Entities filed a petition for a writ of mandamus against the Board, requesting, inter alia, two counts of according to 40 percent of the property's fair market value. For the purposes of this subsection, the term “fair market value” shall mean the fair market value of landmark historic property pursuant to the provisions of subparagraph (D) of paragraph (3) of Code Section 48-5-2.
(c.2) Tangible real property which is devoted to bona fide conservation uses as defined in this chapter and which otherwise conforms to the conditions and limitations imposed in this chapter shall be assessed for property tax purposes at 40 percent of its current use value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's current use value.
(c.3) Tangible real property located in a transitional developing area which is devoted to bona fide residential uses and which otherwise conforms to the conditions and limitations imposed in this chapter for bona fide residential transitional property shall be assessed for property tax purposes at 40 percent of its current use value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's current use value.
(c.4) Tangible real property which qualifies as brownfield property pursuant to the provisions of Code Section 48-5-7.6 shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's fair market value. For the purposes of this subsection, the term “fair market value” shall mean the fair market value of brownfield property pursuant to the provisions of subparagraph (F) of paragraph (3) of Code Section 48-5-2. (d) The requirement contained in this Code section that all tax jurisdictions assess taxable tangible property at 40 percent of fair market value shall not apply to any tax jurisdiction whose ratio of assessed value to fair market value exceeded 40 percent for the tax year 1971. No tax jurisdiction so exempted shall assess at a ratio of less than 40 percent except as necessary to effect the preferential assessment provided in subsection (b) of this Code section.
(e) Each notice of ad valorem taxes due sent to taxpayers of counties and municipalities shall include both the fair market value of the property of the taxpayer which is subject to taxation and the assessed value of the property after being reduced as provided by this Code section. This appears to have been an attempt to make each application, and thus the preferential
tax treatment for each parcel of land, retroactive to tax year 2008.
specific relief. Count I stated:
Pursuant to O.C.G.A. § 9-6-20
et seq.,
Plaintiffs seek a writ of
mandamus from the court compelling the [Board] to perform its
official public duties, thereby requiring [the Board] to comply with
O.C.G.A.
Count II stated:
Pursuant to O.C.G.A. § 9-6-20 et seq., Plaintiffs seek a writ of mandamus from the court compelling the [Board] to perform its official public duties, thereby requiring [the Board] to comply with O.C.G.A. § 48-5-7.4 (j) (1) and approve or deny the CUVA applications.
At a hearing before the superior court on December 12, 2012, Newton Entities
argued, inter alia, that the Board had a duty to certify its appeals to the clerk of
the superior court pursuant to
On February 12, 2013, the superior court issued an order finding that the Board had certified the tax appeals to the superior court on December 17, 2012; therefore, Newton Entities’ request for issuance of a writ of mandamus against the Board regarding the certifications had become moot. 8 It directed Newton Entities to pay $206 in court costs to the clerk of superior court, based upon “contiguous property on appeal [proceeding] with the same case number and filing fee,” but “all other non-contiguous properties” generating “an additional filing fee of [$206]” to be paid within the time required by law or such an appeal would be subject to dismissal.
On March 19, 2013, Newton Entities filed in superior court a “motion for clarification and for issuance of mandamus nisi.” Newton Entities alleged that as they had not been served by the Board with copies of the notices of appeal and *8 civil action file numbers assigned to the appeals, they lacked the ability to ascertain whether their appeals had been certified. They further alleged that clarification regarding the filing fees was required because some of the appeals to the BOE had been consolidated for hearing and that the Board had not told them that receipt of the filing fees was a prerequisite to certifying the appeals; they asked the court to direct the Board to accept their $2,884 tender as payment in full of the filing fees or give guidance on “what other amount [was] more appropriate.” Newton Entities also requested a “mandamus nisi” as to their CUVA applications, which they maintained were for 2008, and had not been approved or denied. On March 28, 2013, the Board moved for a protective order and an emergency stay of discovery pending a hearing on the protective order, asking that the county taxpayers not be put through the burden and expense of complying with the Newton Entities’ voluminous discovery request inasmuch as their mandamus petition was no longer viable. On April 4, 2013, the superior court issued an order temporarily staying discovery pending a hearing on the filed motions.
A hearing was held on April 23, 2013, and on May 16, 2013, the superior court issued an “order denying petition for writ of mandamus” and an “order *9 regarding filing fees.” In the mandamus order, the superior court denied Count I of the petition as the certification issue had already been ruled moot in its prior order. As to Count II involving the CUVA applications, the superior court found that a representative of Newton Entities was informed by the Board that it “could not give [them] CUVA beginning in 2008, because the applications were untimely since they were filed in 2011"; Newton Entities were asked if they wanted CUVA to apply to the 18 properties beginning on January 1, 2011, and they gave direction to proceed with the submitted applications for 2011; subsequently, the Board approved all 18 CUVA applications to begin on January 1, 2011, as instructed by Newton Entities; Newton Entities were sent 18 separate notices that the applications were approved; each notice stated that the requested tax reduction would begin on January 1, 2011; all 18 CUVA approvals were filed with the clerk of superior court and the filing fees were paid for by check from Newton Entities’ representative; inasmuch as the CUVA is for a ten-year period beginning on a date certain and cannot have two start dates and there was only one CUVA application filed for each parcel, the approvals of CUVA beginning January 1, 2011 also constituted the denials of January 1, 2008 as a beginning *10 point for the special tax treatment; CUVA is a contract between the Board and the taxpayer; Newton Entities had been receiving benefits under the contract in the form of tax reduction for over two years; and Newton Entities are estopped to challenge the validity of the contract inasmuch as they have received benefit from it. The superior court concluded that there was no refusal to act by the Board; therefore, mandamus would not lie. All of Newton Entities’ requests for relief were denied, and the petition for a writ of mandamus was dismissed in its entirety.
As to the order regarding filing fees, the superior court found that although
Newton Entities had filed 107 notices of appeal with the Board, they had
tendered only enough money to pay for 27 appeals, therefore, the Board was “at
a loss as to which 27 appeals to file”; taxpayers were required to pay filing fees
to the clerk of the superior court
before
a civil action was filed; the filing fee for
a civil case in the Superior Court of Monroe County was $206; the only method
for combining parcels for the purpose of constituting a consolidated tax appeal
is found in
1. Newton Entities contend that the superior court erred in denying their
request for a “Mandamus Absolute” by finding that the Board certified their
property tax appeals. However, in order to have the right to the extraordinary
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remedy of mandamus, a petitioner has to demonstrate either a clear legal right to
the sought relief or a gross abuse of discretion.
Hertz v. Bennett
,
In
Fitzpatrick v. Madison County Bd. of Tax Assessors
,
The landowner taxpayers in Fitzpatrick were dissatisfied with the tax valuations of their properties by both the county board of tax assessors and county board of equalization, and subsequently, filed an appeal in superior court, but the board of tax assessors refused to certify the appeal to the superior court unless the taxpayers first paid the filing fee to the superior court clerk. The taxpayers then sought a declaratory judgment that they were not required to pay *13 the filing fee, but the superior court ruled that they were indeed responsible for paying the filing fee, resulting in the appeal to this Court. Thus, the circumstances made plain that payment of the appropriate filing fee is a prerequisite to further action in regard to a tax appeal to the superior court. And, such requirement is consistent with the statutory mandates applicable to certification of a tax appeal.
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Newton Entities raise in mitigation the fact that they disputed the filing
fees owed, again asserting the responsibility of costs for a number of
“consolidated” tax appeals far less than their more than 100 notices of appeal to
the superior court. But, there is no evidence of record which effectively
contradicts the superior court’s express determination that Newton Entities’
appeals did not fit within the consolidation provision for contiguous properties
found in
It is undisputed that the tax appeals have been physically delivered to the
superior court and that the superior court has ruled that such appeals have been
certified to it. Thus, Newton Entities have received the sought relief regarding
If more than one contiguous property of a taxpayer is under appeal, the board of equalization shall, upon request of the taxpayer, consolidate all such appeals in one hearing and render separate decisions as to each parcel or item of property. Any appeal from such a consolidated board of equalization hearing to the superior court as provided in this subsection shall constitute a single civil action, and, unless the taxpayer specifically so indicates in his or her notice of appeal, shall apply to all such parcels or items of property.
certification, even though there is no evidence that prior to the filing of the present appeal to this Court, Newton Entities paid the ordered filing fees attendant to its tax appeals. 12
2. As noted, Count II of Newton Entities’ mandamus petition asked that the
Board be directed to either approve or deny their CUVA applications. Newton
Entities now state that the Board did implicitly deny them CUVA treatment for
2008, and instead, argues that the superior court erred in denying their mandamus
request by finding that the Board had provided them the opportunity to appeal
the denial of their 2008 CUVA applications. 13 Citing
First, in their mandamus petition, Newton Entities did not ask for the relief
now requested; therefore, it can hardly be found error for the superior court to
fail to grant it. Second, it is plain that Newton Entities filed only one set of
CUVA applications, and that they were filed in 2011; the very statutory
provision upon which they now rely,
Newton Entities considered for that year. Further, all such CUVA applications were approved, so there was no question of notice of their denial or of refusal by the Board to act.
Simply, the superior court properly denied mandamus relief to Newton
Entities.
Hertz v. Bennett
,
Judgments affirmed. All the Justices concur.
Decided March 10, 2014 – Reconsideration denied April 10, 2014. Mandamus. Monroe Superior Court. Before Judge Fears.
G. Roger Land & Associates, G. Roger Land, Mitchell S. Graham, for appellants.
Dillon & Vaughn, Michael A. Dillon, Benjamin A. Vaughn, for appellees.
Notes
[1]
[6] The petition contained a third count in which Newton Entities asked for attorney fees
pursuant to
[7] It appears that Newton Entities offered the Board $2,884 as payment for certifying the appeals, contending that each appeal to the superior court from a BOE decision regarding parcels, contiguous and non-contiguous, which had been consolidated for the purpose of the BOE hearing constituted a single civil action; thus, instead of in excess of 100 appeals with the consequent court costs for each, there would be costs only for 14 cases.
[8] The Board had asked that the petition for a writ of mandamus be dismissed for non- payment of filing fees and costs. In this same order, the superior court denied the request for dismissal as “premature,” because of the delay in the certifications of the tax appeals.
[9] Inasmuch as mandamus relief was denied, the superior court also denied Newton Entities’ request for attorney fees in Count III.
[10] To the extent that
Fayette County Bd. of Tax Assessors v. Oddo
,
[12] Upon return of the remittitur in this case, the status of the filed tax appeals should be assessed in light of any non-payment of ordered fees.
[13] Newton Entities state that they “do not dispute the validity of this denial.”
[14]