WESTERN STATES PETROLEUM ASSOCIATION, Plaintiff and Respondent, v. BOARD OF EQUALIZATION, Defendant and Appellant.
No. S200475
Supreme Court of California
Aug. 5, 2013.
401
Kamala D. Harris, Attorney General, David S. Chaney, Chief Assistant Attorney General, Alicia Fowler, Acting Chief Assistant Attorney General, Paul D. Gifford, Assistant Attorney General, Felix E. Leatherwood, W. Dean Freeman and Brian D. Wesley, Deputy Attorneys General, for Defendant and Appellant.
John F. Krattli, County Counsel (Los Angeles) and Albert Ramseyer, Principal Deputy County Counsel, for Los Angeles County Office of the Assessor as Amicus Curiae on behalf of Defendant and Appellant.
Cahill Davis & O‘Neall, C. Stephen Davis, Cris K. O‘Neall and Andrew W. Bodeau for Plaintiff and Respondent.
OPINION
LIU, J.—This case presents the issue of how petroleum refinery property should be valued for purposes of taxation. In 1979, in response to the passage of Proposition 13 and related constitutional and statutory enactments, the state Board of Equalization (Board) enacted a rule for assessing the value of most industrial property. (See
In 2007, the Board enacted rule 474 (
The trial court and the Court of Appeal held Rule 474 invalid on both grounds. We conclude that the Court of Appeal erred in finding Rule 474 to be substantively invalid. As explained below, Rule 474 is consistent with applicable constitutional and statutory provisions, and it is also consistent with the long-standing valuation principle that the proper appraisal unit is the collection of assets that persons in the marketplace normally buy and sell as a single unit. Thus, the adoption of Rule 474 did not exceed the Board‘s rulemaking authority. At the same time, however, we hold that the Board failed to provide an adequate assessment of the rule‘s economic impact as required by the APA. Under the APA, the Board was required to make a
We note that “[o]rdinarily, when an appellate court concludes that affirmance of the judgment is proper on certain grounds it will rest its decision on those grounds and not consider alternative grounds which may be available. [Citations.] [¶] However, appellate courts depart from this general rule in cases where the determination is of great importance to the parties and may serve to avoid future litigation [citations], or where the issue presented is of continuing public interest and is likely to recur. [Citation.]” (Filipino Accountants’ Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023, 1029-1030 [204 Cal.Rptr. 913]; see County of Marin v. Superior Court (1960) 53 Cal.2d 633, 640 [2 Cal.Rptr. 758, 349 P.2d 526]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 344, pp. 394-395.) Here, although the rule‘s procedural deficiency is a sufficient basis for affirming the Court of Appeal‘s judgment, our consideration of the substantive ground for invalidating the rule is warranted. The issue presents a question of law, it has been thoroughly briefed, and it is a matter of considerable importance to the parties and to the public.
I.
Proposition 13 did not address how real property should be assessed and taxed when its market value declines instead of appreciates. To address this issue, California voters passed Proposition 8 in November 1978. Proposition 8 amended article XIII A so that it now reads: “The full cash value base may
The Legislature formed a task force to study the implementation of the new real property tax system mandated by Proposition 13 and Proposition 8. In January 1979, the task force submitted a report and recommendations to the Assembly Committee on Revenue and Taxation, officially titled Report of the Task Force on Property Tax Administration (hereafter Task Force Report). (See Pacific Southwest Realty Co. v. County of Los Angeles (1991) 1 Cal.4th 155, 161 [2 Cal.Rptr.2d 536, 820 P.2d 1046].) The Task Force Report has been recognized as a statement of legislative intent for purposes of interpreting the statutes enacted to implement Proposition 13 and Proposition 8. (See, e.g., Auerbach v. Assessment Appeals Bd. No. 1 (2006) 39 Cal.4th 153, 161 [45 Cal.Rptr.3d 774, 137 P.3d 951].)
The report recommended that “the assessed value of real property be the lesser of the Prop. 13 base value compounded annually by 2% or full cash value. These changes will be measured by that appraisal unit which is commonly bought and sold in the market, or which is normally valued separately.” (Task Force Rep., supra, at p. 29.)
Most significantly for this case, the term “real property” under
In the wake of Proposition 13 and Proposition 8, and shortly before the enactment of
At the same time that it adopted Rule 461(e)‘s classification of fixtures as “a separate appraisal unit,” the Board adopted two exceptions to this rule for certain types of industrial property where land and fixtures were valued as a single unit in the marketplace: Rule 468, which applies to oil and gas properties, and Rule 469, which applies to mining properties. (See
In September 2006, the Board voted three to two to adopt Rule 474 to address “the valuation of the real property, personal property, and fixtures used for the refining of petroleum.” (Rule 474, subd. (a).) Subdivision (b)(1) of Rule 474 states that “[t]he unique nature of property used for the refining of petroleum requires the application of specialized appraisal techniques designed to satisfy the requirements of article XIII, section 1, and article XIII A, section 2, of the California Constitution. To this end, petroleum refineries and other real and personal property associated therewith shall be valued pursuant to the principles and procedures set forth in this section.” Rule 474, subdivision (c)(2) states that “[a]ppraisal unit’ consists of the real and personal property that persons in the marketplace commonly buy and sell as a unit.” Most pertinent here, subdivision (d) states that “[f]or the purposes of
The difference between treating fixtures as a separate appraisal unit (Rule 461(e)) and treating fixtures and land together as a single appraisal unit (Rule 474) may be illustrated by a hypothetical drawn from a Board staff report. (For brevity, we will use the term “land” to refer to land and “non-fixture” improvements considered together unless otherwise indicated.) Suppose that following the purchase of a petroleum refinery property, the assessed value in “Year 1” of the land is $2 million and the assessed value of the fixtures is $1 million. Now suppose the land appreciates at $100,000 per year while the fixtures, when appraised separately, depreciate at $100,000 per year. Under Rule 461(e), the treatment of fixtures as a separate appraisal unit means that the assessed value of the fixtures will decline by $100,000 each year, while the land, though appreciating at $100,000 per year, will yield an assessed value that increases by only 2 percent each year, the maximum increase allowed by Proposition 13. The results are shown in the following table:
| Year | Land | Fixtures | Total |
|---|---|---|---|
| 1 | $2,000,000 | $1,000,000 | $3,000,000 |
| 2 | $2,040,000 | $900,000 | $2,940,000 |
| 3 | $2,080,800 | $800,000 | $2,880,800 |
| 4 | $2,122,416 | $700,000 | $2,822,416 |
| 5 | $2,164,864 | $600,000 | $2,764,864 |
| 6 | $2,208,162 | $500,000 | $2,708,162 |
By contrast, if land and fixtures were treated as a single appraisal unit under Rule 474, the total assessed value of petroleum refinery property beyond Year 1 would be greater than the values shown above. When such property is treated as a single unit, fixture depreciation ($100,000 per year) may be offset by the full amount of land appreciation ($100,000 per year), resulting in a total assessed value of $3 million each year. The total assessed
Before adopting Rule 474, the Board held a hearing at which several public officials testified in favor of the rule. Typical was the testimony of Rick Auerbach, the Los Angeles County Assessor, who stated that in his experience “refineries in California . . . are bought and sold as a unit. . . . I am not aware of one that has not been sold as a unit. If we have a case where there is the potential for a refinery to be dismantled and sold—where the fixtures are sold separately, the proposed rule is a rebuttable presumption and we would take that into account. And we would value the fixtures separately.”
The Board concluded in its final statement of reasons before adopting the rule that “sufficient evidence in the rulemaking record exists to determine that proposed Rule 474 is necessary to obtain assessments more accurately reflecting how petroleum refinery properties would actually trade in the marketplace. . . . At the June 27, 2006 Property Tax Committee meeting, Thomas Parker, Deputy County Counsel, Sacramento County; Rick Auerbach, Los Angeles County Assessor and President of the California Assessor‘s Association; Lance Howser, Chief Assessor, Solano County; and Robert Quon, Director of Major Appraisals for the Los Angeles County Assessor‘s office, all testified that refineries are in fact bought, sold, and valued as a single unit. In the same meeting, Mr. Auerbach testified that refineries are different from other heavily-fixtured manufacturing industries such as breweries, canneries, and amusement parks and toy manufacturing. Refineries are unique in that up to 80 percent of their values are contained in the fixtures and because the land and fixtures are so integrated, it is difficult to physically separate the fixtures from the land. Further, the land and fixtures are also so economically integrated that a buyer normally would not, in a fair market transaction, purchase the land separately from the fixtures or the fixtures separately from the land. [¶] Since petroleum refineries are bought and sold as a unit consisting of land and fixtures, to value the fixtures separate and apart from the land may result in assessed values either below or above fair market value in violation of Propositions 8 and 13.”
Petroleum industry counsel submitted evidence to the Board, mostly in the form of for-sale advertisements and newspaper articles, showing that refinery fixtures are sometimes dismantled and sold separately.
In November 2007, the Office of Administrative Law approved the regulation, and it became effective in December 2007. In December 2008, WSPA
In October 2009, the Board and WSPA filed cross-motions for summary judgment. WSPA argued that Rule 474 violates
II.
We first address the standard of review.
As discussed below, the Board in promulgating Rule 474 was required not only to interpret the relevant statute but also to evaluate whether the evidence presented to it was sufficient to warrant a special rule governing petroleum refinery property. The latter task involves the exercise of the Board‘s discretion. Justice Kennard contends that Rule 474 was an interpretive and
As our precedent has stated, “quasi-legislative rules . . . represent[] an authentic form of substantive lawmaking: Within its jurisdiction, the agency has been delegated the Legislature‘s lawmaking power. [Citations.] Because agencies granted such substantive rulemaking power are truly ‘making law,’ their quasi-legislative rules have the dignity of statutes. When a court assesses the validity of such rules, the scope of its review is narrow. If satisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and that it is reasonably necessary to implement the purpose of the statute, judicial review is at an end.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10-11 [78 Cal.Rptr.2d 1, 960 P.2d 1031] (Yamaha); see
At the same time, when an implementing regulation is challenged on the ground that it is “in conflict with the statute” (
III.
Although WSPA contends that Rule 474 is arbitrary and unsupported by substantial evidence, its principal argument is that Rule 474 violates various statutory and constitutional provisions. Notably, WSPA does not challenge Rule 474 on the ground that its factual premise—that petroleum refinery land and fixtures are usually sold together—is somehow infirm. During the public comment process, petroleum industry representatives submitted materials showing that refinery fixtures are, on occasion, sold separately from the land. Consistent with these materials, Rule 474 expressly acknowledges the possibility that refinery land and fixtures are not invariably sold as a unit: subdivision (d)(2) establishes a rebuttable presumption that refinery land and fixtures constitute a single appraisal unit, and subdivision (d)(3) describes the types of evidence that may rebut the presumption. Moreover, WSPA does not contend that it is burdensome to rebut the presumption in situations where refinery land and fixtures are not sold, controlled, or operated as a single unit. WSPA‘s position is that even if refinery land and fixtures are generally sold as a single unit, the Board is statutorily and constitutionally prohibited from appraising such land and fixtures as a single unit. We apply independent judgment in resolving the issues of statutory and constitutional interpretation before us.
A.
As noted, the constitutional mandate governing our real property tax system before Proposition 13 was that such property “shall be assessed at the same percentage of fair market value.” (
Rule 474 is also consistent with
The Court of Appeal rejected this straightforward reading of
What is disputed is how real property was appraised prior to Proposition 13. WSPA and the Court of Appeal contend that in the case of industrial property, land and fixtures have historically been appraised separately and that
The Court of Appeal, however, appears to have confused assessment with valuation. Constitutional and statutory provisions have long required land and improvements to be assessed separately, with improvements in this context including fixtures. (Cal. Const., art. XIII, § 13; §§ 105, 602, 607.) This principle was explained in Mahoney v. City of San Diego (1926) 198 Cal. 388 [245 P. 189] (Mahoney), where an assessor arbitrarily valued improvements separately from land and thereby systematically undervalued the improvements, apparently to encourage development. This court recognized that in order to comply with constitutional and statutory requirements that “[i]mproved and unimproved real estate shall have a uniform basis of valuation, it was essential that the valuations to be placed upon land and upon the improvements thereon, whether in the form of buildings or crops or trees, should be separately set forth in the making of assessments thereon.” (Id. at
Thus, the fact that separate assessments for land and fixtures appear on a property tax bill is not evidence of separate appraisal of those components of real property. The requirement of separate assessments was never intended to supplant the market-based approach to determining the proper appraisal unit, and this distinction has long been recognized in practice. (See Bd. of Equalization, Assessors Handbook, Appraisal of Urban Real Estate (2d ed. 1958) Appraisal Process, p. 5 (1958 Assessors Handbook) [“Valuation of improved property as a unit does not conflict with provisions of State law requiring values of land and improvements to be separately entered on the assessment roll. The legal provisions do not require the separate appraisal of land and improvements but merely that the valuations of each shall be separately stated on the assessment roll.“]; Bd. of Equalization, Assessors’ Handbook, General Appraisal Manual (1966) Economics of Value, p. 16 (1966 Assessors’ Handbook) [“For purposes of assessment, the law requires a separate assessment of land, improvements, and personal property. But statutes do not require separate appraisals of these different classes of property.“]; Bd. of Equalization, Assessors’ Handbook, General Appraisal Manual (1975) Market Value Concept, p. 13 (1975 Assessors’ Handbook) [same].)
As the Task Force Report indicates, the Legislature enacted
WSPA notes that Rule 461(e), promulgated just before the enactment of
WSPA cites no other evidence that
Finally, WSPA contends there are other types of industrial property that are similarly integrated with the land and have a comparably high proportion of property value derived from fixtures. To prevail against this argument, the Board need only establish that
B.
Apart from its contention that
This argument fails because
Further, WSPA contends that
However,
For property whose fixtures are typically sold separately in the open market, fixtures are properly treated as a separate appraisal unit, and fixture depreciation may be independently recognized. But when land and fixtures are typically sold as a single unit, they are properly treated as a single appraisal unit, even if fixture depreciation is offset by land appreciation or otherwise reduced by valuing land and fixtures together. Indeed, consistent with the emphasis on marketplace realities in the Assessors’ Handbooks cited earlier (see ante, at pp. 419-420), we recognized in Mahoney that “in common knowledge and experience,” the actual market value of improvements is often “dependent upon the location” and cannot accurately be determined by separating improvements from the underlying land. (Mahoney, supra, 198 Cal. at pp. 401-402.) To account for fixture depreciation separately when land and fixtures are actually bought and sold as a single unit would allow the owner to claim a reduction in real property value that is economically fictitious, resulting in a tax windfall. Neither
C.
WSPA also contends that
By its terms,
The Board here is similarly charged with administering and enforcing the state‘s property tax laws and has no taxing power.
IV.
In addition to challenging
A.
“The
To effectuate these goals, the
The notice of proposed action is followed by a public comment period. Under
After the public comment period, if the agency decides to enact the regulation, it must prepare a “final statement of reasons” for adopting the proposed rule, which must include “[a]n update of the information contained in the initial statement of reasons.” (
Once the regulation is adopted, “[a]ny interested person may obtain a judicial declaration as to [its] validity . . . by bringing an action for declaratory relief in the superior court . . . .” (
B.
We turn now to consider whether the Board‘s economic impact assessment in this case was sufficient to comply with the
Further,
The obligation of agencies to assess the economic impacts of their proposed regulations is also addressed in
The Court of Appeal in California Assn. of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App.4th 286 (Maxwell-Jolly) extensively discussed the economic impact assessment required by the
At the same time, Maxwell-Jolly emphasized that “a regulation is not necessarily invalid, even if it has a significant adverse economic impact on business.
Maxwell-Jolly further explained that “the reference to a ‘determination’ in
“Given these factors,” the Maxwell-Jolly court said, “we conclude the Department‘s obligation in its initial determination was to make an initial
We agree with the Maxwell-Jolly court‘s understanding of what the requirement of an initial economic impact assessment entails. The requirement is intended to ensure that such information is provided early in the rulemaking process and then refined based on public comment and further consideration in the later stages. Specifically, an economic impact assessment of a proposed regulation has three phases. First, the agency makes an initial, provisional determination of whether the proposed rule will have a significant adverse economic impact on businesses. Second, during the public comment period, affected parties may comment on the agency‘s initial determination and supply additional information relevant to the issue. Third, when the agency issues its final decision and statement of reasons, it must respond to the public comments and either change its proposal in response to the comments or explain why it has not.
We also agree with Maxwell-Jolly and with the Board that an agency‘s initial determination of economic impact need not exhaustively examine the subject or involve extensive data collection. The agency is required only to “make an initial showing that there was some factual basis for [its] decision.” (Maxwell-Jolly, supra, 199 Cal.App.4th at p. 307.) Moreover, inferences and projections that are ” ‘the product of logic and reason’ ” may provide a valid basis for an initial determination of economic impact. (Id. at p. 308.) And a regulation will not be invalidated simply because of disagreement over the strict accuracy of cost estimates on which the agency relied to support its initial determination. (See
Even under this deferential standard, however, we agree with WSPA and the courts below that the Board‘s initial determination that
The trial court observed that even after extended oral argument, it was “utterly unable to understand why this calculation is correct as a measure of increased taxes from treating refineries as a single assessment unit for decline in value purposes. Even as a theoretical matter, surely there should be some quantification of the effect of depreciation of fixtures on assessed value.” The Court of Appeal similarly stated that the Board‘s analysis failed to provide “an economic impact based on data concerning fixture depreciation on assessed values” and thus “leaves a reader without an understanding of what the taxes on a representative refinery would have been under the formerly applicable
We agree. Even assuming the Board could reasonably project $32 billion as the total value of 20 refineries statewide based on data showing $14 billion as the total value of nine refineries in two counties, the Board‘s analysis offers no explanation why multiplying $7 billion in land value by a 2 percent appreciation factor is, empirically or conceptually, a valid or reasonable way to estimate the amount of fixture depreciation that would be offset by appraising land and fixtures as a single unit. We cannot discern any theory or facts that would tend to justify this method of estimation, and even the Board‘s post hoc efforts to explain the estimate in its briefing and at oral argument offer none. Further, as WSPA points out, even if the Board‘s prediction of future land appreciation were correct, the Board‘s calculation failed to consider prior land appreciation and the full tax impact that would occur if land were valued at actual market value rather than adjusted base year value.
It is true, as the Board points out, that WSPA did not offer its own independent economic assessment during the comment period. The record shows that WSPA expressed its view that the cost impact of
But WSPA‘s inactivity does not excuse the Board‘s failure to make a reasoned effort to initially assess the economic impact of
CONCLUSION
For the reasons above, we hold that
Cantil-Sakauye, C. J., Werdegar, J., Mallano, J.,* McDonald, J.,† and McKinster, J.,‡ concurred.
KENNARD, J., Concurring and Dissenting.—I agree with much of the majority opinion. In particular, I agree that although the rule at issue here (
In deciding that
I
Plaintiff Western States Petroleum Association sued the Board, arguing, as relevant here, that
The Board issued
For tax purposes, the state Constitution values land at the “base year value” (generally, the market value when last sold), increased by an inflation factor that may not exceed 2 percent per year. (
Plaintiff challenges the Board‘s
The majority concludes, as do I, that
II
An administrative agency‘s regulations can be of two types: interpretive and quasi-legislative. As explained below, an interpretive regulation defines or clarifies an ambiguous term or phrase in a statute, whereas a quasi-legislative regulation is issued under a delegation of legislative power to fill a substantive gap left open in a statute. The measure of whether a regulation is quasi-legislative is whether it makes a new legal standard where none
The differences between the two types of regulations were described in detail by this court 13 years ago: “It is a ‘black letter’ proposition that there are two categories of administrative rules and that the distinction between them derives from their different sources and ultimately from the constitutional doctrine of the separation of powers. One kind—quasi-legislative rules—represents an authentic form of substantive lawmaking: Within its jurisdiction, the agency has been delegated the Legislature‘s lawmaking power. . . . Unlike quasi-legislative rules, an agency‘s interpretation does not implicate the exercise of a delegated lawmaking power; instead, it represents the agency‘s view of the statute‘s legal meaning and effect, questions lying within the constitutional domain of the courts.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10-11 (Yamaha), italics added, citations omitted; see American Mining Congress v. Mine Safety & Health Administration (D.C. Cir. 1993) 302 U.S. App.D.C. 38 [995 F.2d 1106, 1110] (American Mining) [“[T]he dividing line [between interpretive and quasi-legislative regulations] is the necessity for agency legislative action. . . . [A] rule supplying that action will be legislative . . . and an interpretation that spells out the scope of an agency‘s or regulated entity‘s pre-existing duty . . . will be interpretive . . . .“].)1
Yamaha also explained that quasi-legislative regulations are entitled to a high degree of deference, and that interpretive regulations are not. “Because agencies granted . . . substantive rulemaking power are truly ‘making law,’ their quasi-legislative rules have the dignity of statutes. When a court assesses the validity of such rules, the scope of its review is narrow. If satisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and that it is reasonably necessary to implement the purpose of the statute, judicial review is at an end. . . . Because an interpretation is an agency‘s legal opinion, . . . rather than the exercise of a delegated legislative power to make law, it commands a commensurably lesser degree of judicial deference. [Citation.]” (Yamaha, supra, 19 Cal.4th at pp. 10-11, first & third italics added.)
This court later reiterated the same point in Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1012: “Quasi-legislative rules are those that the agency promulgates as part of the lawmaking power the Legislature has delegated to it. Judicial review of these rules is very limited. [Citation.] Rules that interpret a statute receive less judicial deference.” (Italics added.)
In summary, an agency‘s quasi-legislative regulations involve the discretionary creation of new law under a delegation of legislative power; court review is therefore limited to ensuring that the regulation is within the scope of the delegated power and not arbitrary, capricious, or lacking in a rational basis. (Yamaha, supra, 19 Cal.4th at p. 11.) By contrast, interpretive regulations explain what existing law means, which is ultimately a task for the courts to perform. Although courts give “great weight” to the administrative agency‘s view of the matter, they do not otherwise defer to the agency. (Id. at p. 12.)
III
As noted (see ante, at p. 432),
Here, it is
The majority bases its conclusion that
But for a regulation to be both quasi-legislative and interpretive, there must be some clear indication that the Legislature actually intended and authorized the agency to exercise legislative power in interpreting statutory terms. (See Ramirez, supra, 20 Cal.4th at pp. 799-800.) A mere generic grant of rulemaking authority, which can be found for nearly every California agency (see, e.g.,
This case is similar to Carmona, supra, 13 Cal.3d 303, a decision of this court. Carmona involved a regulation issued by the California Division of Industrial Welfare prohibiting the use of ” ‘[u]nsafe hand tools.’ ” (Id. at p. 307, italics omitted.) A group of farmworkers asked the agency to issue what was in effect a supplemental rule declaring the “short-handled hoe” to be an unsafe hand tool and banning its use throughout California. (Ibid.) Instead, the agency issued a decision that the short-handled hoe was not an unsafe tool within the meaning of the regulation at issue, reasoning that the short-handled hoe was not inherently unsafe. (Id. at p. 308.)
That Carmona involved the interpretation of a regulation, not a statute, is not significant. “The interpretation of a regulation, like the interpretation of a statute, is, of course, a question of law [citations], and . . . the ultimate resolution of such legal questions rests with the courts.” (Carmona, supra, 13 Cal.3d at p. 310.) What is significant is that Carmona, like this case, involved the application of a broad term (“unsafe hand tools“) to a specific category (the “short-handled hoe“). Carmona concluded that the agency‘s decision (which permitted the statewide use of short-handled hoes and thus was, in effect, a regulation) was interpretive, not quasi-legislative. (Ibid.) As such, this court gave “great weight” to the agency‘s interpretation, but the court did not otherwise defer to the agency. (Ibid.) Instead, the court concluded that the agency had misconstrued the unsafe-hand-tool regulation, and that the proper interpretation of that regulation should consider whether a particular tool was unsafe as used, not merely whether it was inherently unsafe. (Id. at pp. 311-313.) Carmona remanded the matter to the agency for a new factual determination based on a correct understanding of the law. (Id. at p. 314.)
Like the California Division of Industrial Welfare‘s application in Carmona of the unsafe-hand-tool regulation (Carmona, supra, 13 Cal.3d at p. 307) to a specific category of hand tool, the Board‘s application here of the statutory
The question remains whether the Board‘s construction of
From the Board‘s interpretations and factual findings, it follows that both the land and fixtures of petroleum refinery property constitute “real property” under
Nevertheless, I agree with the majority that because the Board did not comply with the