Spooner v. Department of Revenue , 4 Or. Tax 66 ( 1970 )

Edward H. Howell, Judge.

Plaintiffs appeal from an order of the Department of Revenue denying a special farm use assessment for their land in Polk County.

Plaintiffs own approximately 200 acres of land which they purchased in 1950. Subsequent to the purchase the land, which is steep and rolling, was used for several years to raise some wheat, oats or alta fescue grass seed. For the past several years, however, the plaintiffs have been grazing a small band of sheep on the property and have not raised any crops.

Plaintiffs placed 75 acres of the land under the Western Oregon Small Timber Tract classification (ORS 321.705, et seq) and contend that the balance of 125 acres is entitled to the special farm use classification allowed by ORS 308.370. The parties agree that plaintiffs’ land is within a farm use zone and that the land has met the income requirements of ORS 215.230(2) (b), as the gross income from plaintiffs’ sheep has exceeded $500 per year for three of the five calendar years preceding the tax year 1969-70.

Some inconsistency occurred in the evidence regarding the number of sheep plaintiffs were running on the property. The plaintiff Harold Spooner, who is employed as a landscape architect for the State of Oregon, testified that he had as high as 55 head grazing on the property but his personal property tax returns showed that he had between 28 and 30 head of mature animals on the land each year between 1967 and 1969.

The land is fenced but not irrigated. Plaintiffs’ barn which was destroyed in 1969 has not been replaced, and feed and hay are stored in a machine shed.

In order for land within a farm use zone to be entitled to a farm use classification it is necessary under ORS 308.370(1) that the land be used exclusively for farm use.

The plaintiffs are not entitled to the special farm use classification for the whole 125 acres. Although the plaintiff has grossed over $500 for three of the five preceding calendar years before January 1, 1969, and the land is in a farm use zone, all the land is not being devoted exclusively to farm use and the entire 125 acres are not needed to ran 28 head of sheep. This court recognizes it is not practical or feasible to require that every square foot of every farm be planted in crops or grazed by animals in order to be entitled to a farm use classification for the whole property, but it would also be impractical to allow a farm use classification for a large tract when only a small portion is devoted to or needed for the particular farm use.

The county appraiser who had substantial farming experience, including raising sheep, testified that in his opinion land similar to plaintiffs’ in Polk County would support one head per acre using supplemental feed.

The plaintiffs are entitled to a special farm use classification for 30 acres. The balance of the parcel is not entitled to farm use classification for the tax year 1969-70.

The order of the Department of Revenue is modified to the extent indicated herein.