Hodel v. Multnomah County Assessor ( 2012 )

IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
ROBERT E. HODEL, )
)
Plaintiff, ) TC-MD 110996D
)
v. )
)
MULTNOMAH COUNTY ASSESSOR, )
)
Defendant. ) DECISION
Plaintiff appeals Defendant‟s denial of his application to rollover 10.15 acres identified as
Account R236959 (subject property) that were previously eligible to participate in the designated
forestland deferral program to the nonexclusive farm use property tax deferral program. The
parties submitted stipulated facts, motions for summary judgment and responses. Oral argument
via telephone was held on May 8, 2012. This matter is now ready for decision.
I. STATEMENT OF FACTS
The subject property, “with the exception of about two-tenths of an acre, is located within
either the City of Portland‟s Environmental Protection Overlay Zone (p) or the Environmental
Conservation Overlay Zone (c).” (Stip Fact 6.) “On or about June 22, 2011, the County notified
Plaintiff that the Property was disqualified from the Forestland Special Assessment Program.”
(Stip Fact 9.) After Defendant received Plaintiff‟s request to “roll over from the Forestland
Special Assessment Program to the Non-EFU Special Assessment Program (the „Application‟)”
and Defendant‟s representative visited the subject property, Defendant denied Plaintiff‟s
Application on August 12, 2011, stating that “there was no evidence of Commercial Farming
Activity” on the subject property. (Stip Facts 11, 13, 14.) The parties agree that as of
Defendant‟s inspection of the property Plaintiff‟s use of the property is limited to a “garden
DECISION TC-MD 110996D 1
area,” measuring “approximately 3,300 square feet” and “located within the one-acre homesite.”
(Stip Facts 18, 19.) Plaintiff stated that as of the date of the Application there was no reported
“income” from the sale of the flowers grown in the garden. (Stip Facts 21, 22.) Defendant
alleges that “the City of Portland‟s current zoning overlays will prohibit Plaintiff from
developing the property for farm use in the future.” (Stip Fact 24.)
II. ANALYSIS
The parties agree that after Plaintiff received notice that the subject property was
disqualified from the Forestland Special Assessment Program Plaintiff filed an application to
qualify for another special assessment program. ORS 308A.724(2) states in pertinent part that:
“If an owner of land disqualified under one of the special assessment laws
listed in ORS 308A.706(1)(d) seeks to qualify for farm use special assessment of
nonexclusive farm use zone farmland under ORS 308A.068, the owner shall have
five years, beginning with the first year in which application is made under this
section, to qualify for the two-year farm use requirement of ORS 308A.068 and
the income requirement under ORS 308A.071.”1
“In interpreting a statute, the court's task is to discern the intent of the legislature.” PGE
v. Bureau of Labor and Industries (PGE), 317 Or 606, 610, 859 P2d 1143 (1993); ORS 174.020.
The legislative intent is to be determined first from the text and context of the statute. PGE, 317
Or at 611; State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). Additionally, “words of
common usage typically should be given their plain, natural, and ordinary meaning.” PGE, 317
Or at 611. “ „Shall‟is a command: it is „used in laws, regulations, or directives to express what is
mandatory.‟ ” Preble v. Department of Revenue, 331 Or 320, 324, 14 P3d 613 (2000)(citations
omitted).
The parties agree that the subject property was “land disqualified under one of the special
assessment laws listed in ORS 308A.706(1)(d)” and that the subject property “seeks to qualify
1
Unless otherwise noted, all references to the Oregon Revised Statutes (ORS) are to 2009.
DECISION TC-MD 110996D 2
for farm use special assessment of nonexclusive farm use zone farmland under ORS 308A.068.”
ORS 308A.724(2); (Stip Fact 9, 11.) An owner seeking to qualify under ORS 308A.068 is given
“five years * * * to qualify for the two-year farm use requirement of ORS 308A.068 and the
income requirement under ORS 308A.071.” Id.Defendant denied Plaintiff‟s Application, stating that there was “[n]o evidence of
Commercial Farming activity.” (Stip Fact 14; Ptf‟s Attach 5.) Defendant‟s denial ignores the
mandatory language, giving an owner five years to meet “the two-year farm use requirement of
ORS 308A.068 and the income requirement under ORS 308A.071.” ORS 308A.724(2). The
court acknowledges that if Plaintiff was filing an application under ORS 308A.077 in contrast to
ORS 308A.724, the subject property is required to be “used” and having “been used for the
preceding two years, exclusively for farm use.” ORS 308A.068(1). If that requirement were
applicable to Plaintiff, the parties agree that the subject property‟s farm use is currently limited to
a “garden” that would likely not meet the statutory farm use definition. For Plaintiff who filed
his Application pursuant to ORS 308A.724, the statute clearly grants a five year period from the
“first year in which application is made” to meet “the two-year farm use requirement of
ORS 308A.068” and there is no current or prior two-year farm use requirement.
ORS 308A.724(2).
Defendant offers an alternate reason for its denial, stating that “the City of Portland‟s
current zoning overlays will prohibit Plaintiff from developing the property for farm use in the
future.” (Stip Fact 24.) Defendant offers no verifiable evidence to support its conclusion that
within the five year period Plaintiff cannot develop the property for farm use. The statute allows
an applicant five years to meet the statutory farm use and income requirements. After that time
period, Defendant‟s alternate reason for its denial can be verified.
DECISION TC-MD 110996D 3
III. CONCLUSION
After careful review of the pleadings and applicable law, the court concludes that
Defendant‟s denial of Plaintiff‟s Application was in error. Now, therefore,
IT IS THE DECISION OF THIS COURT that Plaintiff‟s appeal is granted.
Dated this day of July 2012.
JILL A. TANNER
PRESIDING MAGISTRATE
If you want to appeal this Decision, file a Complaint in the Regular Division of
the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563;
or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your Complaint must be submitted within 60 days after the date of the Decision
or this Decision becomes final and cannot be changed.
This document was signed by Presiding Magistrate Jill A. Tanner on July 18,
2012. The Court filed and entered this document on July 18, 2012.
DECISION TC-MD 110996D 4