Kincaid v. Jackson County Assessor ( 2013 )

IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Property Tax
LEON L. KINCAID )
and APRIL L. KINCAID, )
)
Plaintiffs, ) TC-MD 120765D
)
v. )
)
JACKSON COUNTY ASSESSOR, )
)
Defendant. ) DECISION
Plaintiffs seek forestland homesite special assessment for their property identified as
Account 10795223 (Tax Lot 208) for tax years 2002-03 through 2011-2012. A telephone trial
was held on January 16, 2013. Leon L. Kincaid (Plaintiff) appeared and testified on behalf of
Plaintiffs. Lorrie Williams (Williams), Appraiser II, Farm & Forest, Jackson County, appeared
and testified on behalf of Defendant.
Plaintiffs’ Exhibits A through C and Defendant’s Exhibits A through T were admitted
without objection.
I. STATEMENT OF FACTS
The parties agree that 9.98 acres of the subject property was designated forestland (“rural
tract”) by Defendant no later than January 1991. (Def’s Ex E at 3.) Plaintiff had knowledge of
Defendant’s designation no later than September 4, 2000, when Steve Bridges (Bridges)
prepared a “Forest Stocking Survey and Stand Analysis” for the subject property. (Def’s Ex H at
2.) On November 27, 2012, Bridges wrote to Williams, stating that “when” he “completed that
survey” he “used the County Assessor’s Office estimate of 9.98 acres” and the subject property
“has had more than the required 10.01 acres of forest land for many decades.” (Ptfs’ Ex C.)
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DECISION TC-MD 120765D 1
The parties agree that “[q]ualifying home sites used in conjunction with more than 10
acres of qualifying forestland receive special assessment for the land under the dwelling.” (Ptfs’
B at 4.) Plaintiff stated that “the Designated Forestland and the Forester Occupied Homesite are
not the same program” and he “would certainly have applied for the Forester Occupied Homesite
if I had known of that program.” (Id. at 2.) Plaintiff testified that:
“In 2011, the Assessor’s Office supported my neighbor, James Crary, in
his request for retroactive payment. The difference between his request and mine
is that the Assessor’s records showed more than 10 acres of designated forestland
for Mr. Crary and 9.98 acres for my parcel. It is neither fair, just, nor consistent
to allow a miscalculation by an unknown person at some past date prevent
retroactive payment on my request.”
(Ptfs’ ltr dated Dec 4, 2012, to Williams at 2.)
II. ANALYSIS
Two types of forestland exist in the western part of Oregon: (1) designated forestland,
which requires an application by the property owner and approval by the assessor; and (2) land,
the highest and best use of which is the growing and harvesting of trees of marketable species
(HBU forestland). See ORS 321.257(2).1 (Defining the two types of forestland.) ORS
321.257(2) defines forestland for purposes of Western Oregon forestland special assessment as
“land in Western Oregon that is being held or used for the predominant purpose of growing and
harvesting trees of a marketable species [that] has been designated as forestland.” Land is
designated as forestland under the provisions of ORS 321.257 to ORS 321.390 based upon the
assessor's approval of an application filed by the landowner as provided in ORS 321.358. Under
Oregon law, “[a]n owner of land desiring that it be designated as forestland shall make
application to the county assessor * * *.” ORS 321.358(1). Subsection (4) of that statute
1
All references to Oregon Revised Statutes (ORS) are to 2011 and are applicable to all tax years before the
court.
DECISION TC-MD 120765D 2
provides that the “assessor shall approve an application for forestland designation if the assessor
finds that the land is properly classifiable as forestland. The county assessor shall not find land
properly classifiable as forestland if * * * the land does not substantially meet minimum stocking
or acreage requirements under rules adopted by the department.” ORS 321.358(4)(b).
In interpreting ORS 321.358, the court looks to the leading case on statutory
interpretation for guidance, PGE v. Bureau of Labor and Industries (PGE), 317 Or 606, 859 P2d
1143 (1993). “In interpreting a statute, the court's task is to discern the intent of the legislature.”
Id. at 610. The legislative intent is to be determined first from the text and context of the statute.
Id. at 611. “[A]fter examining text and context,” the court may consider legislative history that
“appears useful to the court's analysis.” State v. Gaines (Gaines), 346 Or 160, 172, 206 P3d
1042 (2009). Additionally, “words of common usage typically should be given their plain,
natural, and ordinary meaning.” PGE, 317 Or at 611.
ORS 321.358 specifically states that “[a]n owner of land desiring that it be designated as
forestland shall make application to the county assessor on or before April 1 of the assessment
year for which special assessment as forestland is first desired.” “ ‘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 statute places the burden
on the land owner to file an application, requesting that property be designated as forestland.
There is no dispute that no later than January 1991, Defendant determined that 9.98 acres of the
subject property was “properly classifiable as forestland.” ORS 351.358(4)(b). For each of the
tax years before the court, Plaintiffs did not file an application, requesting that additional acreage
beyond the 9.98 acres be designated as forestland. Absent an application by Plaintiffs or a
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DECISION TC-MD 120765D 3
change in use, Defendant cannot change the portion of the subject property designated
forestland.
Plaintiffs are seeking an increase in the portion of their property designated as forestland
to qualify as a specially assessed forest homesite. ORS 308A.253(1) states in pertinent part that
“[l]and under a dwelling that is used in conjunction with the activities customarily carried on in
the management and operation of forestland held or used for the predominant purpose of
growing and harvesting trees of a marketable species shall qualify for special assessment under
ORS 308A.256.” The special assessment is contingent upon the owner meeting the more
stringent requirements for special assessment of the land under and around the home. Among
those stricter requirements are that the owner have a minimum of more than 10 acres of land, that
the land be zoned for forest use, that land has been designated as forestland under ORS 321.257
to 321.390, and that the land under the dwelling be used “in conjunction with the activities
customarily carried on in the management and operation of forestland held or used for the
predominant purpose of growing and harvesting trees of a marketable species * * *.” ORS
308A.250(2); ORS 308A.253(1). In contrast to a property owner seeking designation as
forestland, no application is required to receive the forest homesite special assessment. See OAR
150-308A.253.2 If a property meets the statutory requirements, that property is specially
assessed as a forest homesite.
In the case before the court, the subject property did not meet the statutory requirements.
For all of the tax years at issue, Plaintiffs did not “have a minimum of more than 10 acres of land
designated as forestland.” ORS 308A.250(2). Plaintiffs never filed an application seeking
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2
All references to Oregon Administrative Rules (OAR) are to 2011 and are applicable to all tax years
before the court.
DECISION TC-MD 120765D 4
designation as forestland for the subject property in excess of the 9.98 acres designated as
forestland. As previously stated, the burden is on the property owner to file an application.
Plaintiffs’ neighbor, Crary, met the statutory requirements; Plaintiff stated that the
“Assessor’s records showed more than 10 acres of designated forestland for Mr. Crary [Crary].”
(Ptfs’ ltr dated Dec 4, 2012, to Williams at 2.) Defendant granted Crary forest homesite special
assessment. There is no application requirement; a property must meet statutory requirements.
Defendant cannot grant Plaintiffs’ forest homesite special assessment because for the tax years
before the court their property did not meet the statutory minimum of acres designated as
forestland. If the subject property had more than 10 acres designated as forestland for the tax
years before the court, Plaintiffs’ would have been granted forest homesite special assessment
without filing an application.
III. CONCLUSION
After careful review of the testimony and evidence, the court concludes that because the
number of acres designated forestland was less than 10 acres for each of the tax years before the
court, the subject property does not qualify for forest homesite special assessment. Now,
therefore,
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DECISION TC-MD 120765D 5
IT IS THE DECISION OF THIS COURT that Plaintiffs’ appeal is denied.
Dated this day of March 2013.
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 Decision was signed by Presiding Magistrate Jill A. Tanner on March 4,
2013. The court filed and entered this Decision on March 4, 2013.
DECISION TC-MD 120765D 6