A REGULAR MEETING OF THE VALUE ADJUSTMENT BOARD

JULY 28, 2009

The Lake County Value Adjustment Board met in regular session on Tuesday, July 28, 2009, at 2:00 p.m., in the Board of County Commissioners’ Meeting Room, Lake County Administration Building, Tavares, Florida.  Commissioners present at the meeting were:  Jennifer Hill, Chairman; and Linda Stewart.  Larry Metz was present from the Lake County School Board and Ralph Smith was present as a citizen member.  Will Walker was unable to attend.  Others present were:  Leigh Tucker, Counsel for the Value Adjustment Board; Sarah Rissman, Assistant County Attorney, County Attorney’s Office; Frank Royce, Chief Deputy, Property Appraiser’s Office; Robbie Ross, Director of Tangible and Agricultural Properties, Property Appraiser’s Office; Barbara Lehman, Chief Deputy Clerk, County Finance; Kevin McDonald, Budget Officer, Clerk Finance, and Ellie McDonald, Deputy Clerk.

Commr. Hill called the meeting to order at 2:00 p.m. and noted that the meeting had been legally advertised and a quorum was present.

approval of minutes

The Chairman asked for approval of the Minutes of the June 23, 2009, meeting.

Mr. Larry Metz stated that on page 6, line 36 the second and third words were incorrect and should be removed.

Mr. Ralph Smith commented that there was a typographical error on page 7, line 10 in the spelling of “unrefutted” and should be changed to “unrefuted.”

On a motion by Commr. Stewart, seconded by Mr. Smith and carried unanimously by a 4-0 vote, the VAB approved the Minutes of the Regular Meeting held on June 23, 2009, as corrected.

consideration for recommendations of Special Magistrate

DAVID TAYLOR for 2008 VALUATION PETITIONS

Ms. Leigh Tucker, counsel for the Value Adjustment Board (VAB) reviewed the Color-Coded Spreadsheet under Tab 2 and noted that the recommended actions were broken into seven categories.  She explained that the spreadsheet was followed by a twelve page list of the Valuation Petitions considered by Special Magistrate David Taylor.  She pointed out a typographical error on page 7 of 12 stating that lines 130 and 132 should be color-coded pink since written responses were filed on those cases.

On a motion by Mr. Metz, seconded by Commr. Stewart and carried unanimously by a 4-0 vote, the VAB accepted into the record the description sheet of the categories and the twelve page document that followed, with modifications mentioned by Ms. Tucker.

Under discussion, Commr. Hill clarified that Mr. Metz was entering the documents into the record “as is” and that they would comment on each colored section separately.

RECOMMENDATIONS UNDER CATEGORY 1

On a motion by Mr. Metz, seconded by Commr. Stewart and carried unanimously by a 4-0 vote, the VAB granted the withdrawal of all Petitions under Category 1, indicated by yellow on the category sheet.

recommendations under categorIES 2 and 3

Mr. Metz stated that these two categories state that no action was required and asked if there was anything the VAB needed to do with respect to those categories.

Ms. Tucker stated that no action was required insofar as needing to adopt any recommendation because those Petitions were late and not considered by the Special Magistrate. She stated, however, that they could acknowledge that the late Petitions in Category 2 were not brought before the Special Magistrate for a recommendation.  She noted that there was only one case in Category 3 and it was granted by the Property Appraiser and did not appear on the Special Magistrate’s docket.

recommendations under CATEGORY 4

Ms. Tucker stated that Category 4 represented those Petitions granted relief by the Special Magistrate, and that the Property Appraiser did not file written responses objecting to the those recommendations.  She explained that it was the job of the VAB to determine whether to approve or disapprove the Special Magistrate’s recommendation.

On a motion by Commr. Stewart, seconded by Mr. Smith and carried unanimously by a 4-0 vote, the VAB granted the requested exemption or classification to the Petitioners in Category 4 as recommended by the Special Magistrate.

recommendations under category 5

Ms. Tucker stated that the Petitioner’s relief was partially granted in each of the recommendations under Category 5, noting that only a portion of what the Property Appraiser had done was overturned by the Special Magistrate.  She explained that the Special Magistrate recommended that the VAB grant partial relief to these Petitioners.

On a motion by Commr. Stewart, seconded by Mr. Smith and carried unanimously by a 4-0 vote the VAB granted partial relief to the Petitioners in Category 5 for the requested exemption or classification as recommended by the Special Magistrate.

recommendations under category 6

Ms. Tucker explained that Category 6 represented Petitions that both the Special Magistrate and Property Appraiser recommended denial of Petitioners’ request for relief and asked the VAB to support such recommendations.  She stated that the Special Magistrate heard the case, had the Petitioners’ information at the hearing, and the Property Appraiser appeared.  She noted that the Petitioners were afforded the opportunity to respond with a written objection to the legal procedures used by the Special Magistrate and chose not to do so.  She commented that the recommendation of the Special Magistrate was to deny the Petitions in this Category.

On a motion by Commr. Stewart, seconded Mr. Smith and carried unanimously by a 4-0 vote, the VAB supported the Special Magistrate’s recommendation to deny Petitioners’ request for relief in Category 6.

RECOMMENDATIONS UNDER CATEGORY 7

Ms. Tucker explained that Category 7 represented those Petitions where the Petitioner and Property Appraiser appeared before the Special Magistrate who heard the facts and arguments involved.  She commented that the Special Magistrate recommended the Petitioners’ relief be denied.  She stated that these Petitioners filed written responses which were delivered to the VAB yesterday by email and were before them today.  She explained that the VAB must now determine whether or not to adopt the recommendation of the Special Magistrate denying the request for relief.

Commr. Stewart asked if they could question the responses by the Petitioners.

Ms. Tucker explained that no one was here to testify about the responses, but if they had any questions about what was contained in their written responses she could assist them.

Commr. Stewart asked if they were going to take each one individually.

Ms. Tucker stated that they could follow whatever procedure they chose.

petition nos. 2008-60 and 2008-61 - stuart klein

On a motion by Commr. Stewart, seconded by Mr. Metz and carried unanimously by a 4-0 vote, the VAB accepted the Special Magistrate’s recommendation denying the Petitioner’s request for relief.

Under discussion, Mr. Metz commented that the Petitioner had counted deeds in lieu of foreclosure as a zero consideration and that averaged down the comparable sales data the appraiser relied on.  He stated that the appraiser’s approach was entirely correct using actual closed sales in arms length transactions for value, and with that rationale there was nothing to do other than deny Petitioner’s request for relief.

petition no. 2008-253 - richard f. joyce

Commr. Stewart remarked that she was confused because they are not allowed to hear any additional testimony and that in the information given to the VAB the property owner’s building was purchased for $240,000 before the downturn in the economy.  She commented that it was then assessed and appraised at $308,000 in 2008 in the middle of the recession.

Ms. Tucker stated that she was not sure it was appropriate for her to comment on these facts because they do not know that this is evidence, noting that what the Special Magistrate considered at the hearing was the evidence.  She explained that this was the written response and was to confine itself to legal arguments, and whether or not the Special Magistrate performed his job according to his charge.

Commr. Hill stated that the VAB’s purpose was to see if the Petitioner was given due process and a fair hearing.

Ms. Tucker remarked that the VAB decided to use the Special Magistrate process and contracted with a professional who has taken into consideration all of the facts, and has decided upon the recommendation before them.  She stated, therefore that the written response in reply to the Special Magistrate’s recommendation was the Petitioner’s further opportunity to plead his case in terms of whether or not the law was correctly applied before the Special Magistrate.  She noted that the opportunity to respond was not intended to reargue the facts to obtain a result from the VAB that differed from that of the Special Magistrate.

Commr. Stewart made a motion to support the Special Magistrate’s decision to deny Petitioner’s request for relief which was seconded by Mr. Smith.

Under discussion, Mr. Smith referred to the top paragraph of page 2 of the Petitioner’s response to the recommendation and questioned whether the Special Magistrate was aware that this was a vacant shell as opposed to an improved, occupied structure upon which he based his decision.

Commr. Stewart commented that they assumed that the Special Magistrate received this information in making his decision.

Ms. Tucker remarked that she was unsure if they could assume that he took in all of this evidence.  She commented that presumably, the hearing before the Special Magistrate was an opportunity for the Petitioner to present all of this evidence, but the end result would be determined by the VAB.

Mr. Smith commented that her assumption may be correct, but commented that they had remanded several Petitions back for further information at the last meeting, and questioned whether that could be done for this particular Petition.

Ms. Tucker stated that the VAB always has the ability to send it back to the Special Magistrate for further information.

Mr. Smith commented that he would like to make a motion to send this item back to the Special Magistrate.

Commr. Hill stated that they would need to rescind the motion presently on the floor.

Commr. Stewart rescinded her motion.

On a motion by Mr. Smith, seconded by Commr. Stewart and carried unanimously by a 4-0 vote, the VAB remanded Petition No. 2008-253 back to the Special Magistrate to inquire if the evidence presented in Petitioner’s response was an accurate statement and was considered in the recommendation given by the Special Magistrate.

Mr. Metz clarified that the motion was in reference to the “empty shell statement” of Petitioner’s response located on page 2, in the second paragraph.

petition no. 2008-262 - keith aronoff

On a motion by Commr. Stewart, seconded by Mr. Metz and carried unanimously by a 4-0 vote, the VAB supported the Special Magistrate’s recommendation to deny Petitioner’s request for relief.

petition nos. 2008-289 through 294; 2008-296 through 298; and 2008-319 through 330 - eric coe

Commr. Stewart requested that these Petitions be considered together.

Ms. Tucker stated that would be appropriate since they were all handled by the same recommendation and same written response.

Commr. Stewart proposed a motion to support the Special Magistrate’s recommendation to deny Petitioner’s request for relief on Petition Nos. 2008-289 through 2008-294; 2008-296 through 2008-298.

Ms. Tucker commented that on page 8 of 12, at line 150, Petition Nos. 2008-319 through 2008-330 should also be considered with these as well.

Commr. Stewart commented that Petition Nos. 2008-319 through 2008-330 should be included in the motion.

Ms. Tucker clarified that the motion was on Petition Nos. 2008-289 through 2008-294; 2008-296 through 2008-298; and 2008-319 through 2008-330.

Commr. Hill stated that there was a motion on the floor and asked for a second.  Mr. Metz seconded the motion which carried unanimously by a 4-0 vote, whereby the VAB supported the Special Magistrate’s recommendation to deny Petitioner’s request for relief on Petition Nos. 2008-289 through 2008-294; 2008-296 through 2008-298; and 2008-319 through 2008-330.

petition no. 2008-299 - sheila mccarthy

On a motion by Commr. Stewart, seconded by Mr. Metz and carried unanimously by a 4-0 vote, the VAB supported the Special Magistrate’s recommendation to deny Petitioner’s request for relief.

petition no. 2008-301 - pamella chassie

On a motion by Commr. Stewart, seconded by Mr. Metz and carried unanimously by a 4-0 vote, the VAB supported the Special Magistrate’s recommendation to deny Petitioner’s request for relief.

As an aside, Mr. Metz commented that in this case they have evidence from the Petitioner as did the Special Magistrate, but it was the job of the Special Magistrate to weigh the evidence and determine the appropriate approach to valuation and there was a dispute among the experts as to what it should be.  However, it was not for the VAB to decide the dispute as long as they were confident that the hearing was fair.  He mentioned that he scrutinized the Chassie case yesterday and thought it could go one way or the other as it was not an exact science.  He stated that the job of the VAB was to affirm that there was no reason to question the legal sufficiency of the ruling.

petition no. 2008-312 - hugh kent

Ms. Tucker informed the VAB that this was the “valuation” portion of the Petition which was also heard as an exemption at the previous meeting and the prior case from the exemption portion will be discussed under old business.  She commented that the valuation portion of 2008-312 was before the VAB today.

Mr. Metz referred to page 2, Section 3 of the Special Magistrate’s Recommendation and noted that there was a clear indication no market data was introduced by the Petitioner. He stated, however, that there was an argument based on the comparison of land use codes and assessments with nearby tracts.  He asked Ms. Tucker to provide input regarding this matter and questioned whether this was a legal issue.  He specifically referred to the sentence that states “The Petitioner provided no comparable sales data, and no attempt was made to prove a lower value, based on market evidence.”  He mentioned that the Property Appraiser’s office indicated that in mass appraising, inequities do, and have, occurred. He remarked that the issue at hand was to correctly value the subject property and rectify any inappropriate or classified use values that may exist at other properties at a later date.  He commented that there were three comparables that were used by the Property Appraiser’s office.  He remarked that the VAB’s charge was to determine whether the Special Magistrate’s recommended conclusion of denying the Petition was adequately and legally supported in the record, or if not, either to reverse or remand the decision.  He asked if it was legally sufficient to compare land use codes and assessments with nearby tracts.  He mentioned that apparently the Special Magistrate did not think so, and asked for Ms. Tucker’s opinion.

Ms. Tucker stated that the question was not clear to her other than to confirm that the Special Magistrate followed the law in making his recommendation.  She commented that she did not see anything in his recommendation that did not follow his charge according to the Statutes.  As far as the analysis that he goes through, she stated that she could not give him anymore in-depth information other than what was written.  However, she stated that the Special Magistrate in this particular case did not step outside his boundaries.

Mr. Metz commented that there was a Statute that describes factors to consider in valuing the property and he did not recall anything about land use codes or assessments with nearby tracts per se as being in the criteria.  He explained that he would like to scrutinize what the issue was and noted that this was a valuation matter.

Ms. Tucker asked if he were questioning if the Special Magistrate overstepped his boundaries because he did take this into consideration.

Mr. Metz replied, “no,” he gathered that the Special Magistrate rejected that type of approach in favor of comparable sales data and wondered if that was the legally appropriate approach given the Statute.

Ms. Tucker responded by stating that he is not required to take into consideration what Mr. Kent presented to him at that meeting.  She commented that what the Special Magistrate used in his recommendation was what he was required to use under the Statute.

Mr. Metz remarked that he would like to make sure the VAB properly considered the issue presented and that the proposed Conclusion of Law was that the appraiser defended the value with market evidence, which he presumed, was closed sales with similar properties.  He reviewed the Special Magistrate’s Conclusions of Law and noted that they were not dealing here as they were in the previous case where they had an appraisal report submitted by the Petitioner and the Special Magistrate waived that evidence.  He commented that in this case, however, there was only one set of sales data used and that was by the Property Appraiser.  He noted that the argument submitted by the Petitioner was the issue of assessments and comparing assessments of other properties.  He asked if, in Ms. Tucker’s legal opinion, that was a correct legal approach by the Special Magistrate.

Ms. Tucker responded that it was, in fact, a correct legal approach.

Commr. Hill stated that because the Petitioner did not offer an appraisal, the Property Appraiser’s appraisal would be the one to consider.

Ms. Tucker stated that it was up to the Petitioner to introduce the evidence and she was certain the Property Appraiser relied on that evidence.  She commented that because the appraisal of the Property Appraiser was what the Special Magistrate had before him it was the evidence he considered.  She noted that it is not incumbent upon the Petitioner to obtain an appraisal, but the Property Appraiser has the presumption of correctness.

Mr. Metz commented that if you were going to overcome the presumption of correctness in the Property Appraiser’s appraisal of the property that would seem to fall in the category of expert testimony and/or reports from a qualifying appraiser who has comparable sales.  He explained that was his reason for pausing on the previous case because they had done that.  He explained that unless the evidence was erroneous the VAB should not change it just because they think it should be a different number.  He noted that in this particular case he did not see any such evidence, but there was an argument made by the Petitioner in good faith about the other assessments and wanted to confirm the legal analysis.  He explained that the Special Magistrate came to that conclusion, and since it is a proper legal approach he does not have any reason to disagree with it.  He noted that he did not take any argument lightly and that the VAB’s job was to ask questions to ensure that the law was followed.

On a motion by Mr. Metz, seconded by Commr. Stewart and carried unanimously by a 4-0 vote, the VAB supported the recommendation of the Special Magistrate to deny Petitioner’s request for relief.

petition no. 2008-363 - clark mann

Commr. Stewart remarked that on page 2 of the recommended decision of the Special Magistrate it says that in light of uncertainty relating to the future use of the site, the Magistrate remands the Petition to the appraiser to research this matter, and determine the correct approved future use of this site and revalue the site if necessary.

 Ms. Tucker commented that the Property Appraiser’s office advised her that they did, in fact, validate that the plat and all other information presented to the Special Magistrate was correct.

On a motion by Commr. Stewart, seconded by Mr. Smith and carried unanimously by a 4-0 vote, the VAB supported the recommendation of the Special Magistrate to deny Petitioner’s request for relief.

OLD BUSINESS FROM JUNE 23, 2009 MEETING

Ms. Tucker explained that at the Meeting on June 23, 2009, the VAB directed that four cases be remanded for various reasons.

petition nos. 2008-28 and 2008-30 - place of peace, llc and howey groves, llc

Ms. Tucker stated that a supplemental report of the Special Magistrate was placed in the board members’ packet prior to today’s meeting, in response to the VAB’s request regarding Petition Nos. 2008-28 and 2008-30, Place of Peace, LLC, and Howey Groves, LLC.  She explained that Special Magistrate Aulls generated a Supplemental Recommendation pointing out that the recommendation before the VAB at the last meeting made it very clear that he believed there was case law and a Statute on point for this particular issue and recommended that the VAB grant the Petitioners’ relief in these cases.  She commented that the County Attorney’s office, on behalf of the Property Appraiser, filed a written response to the Special Magistrate’s recommendation, and after a brief discussion of the written response and the recommendation of the Special Magistrate to grant the Petitioner’s relief, the VAB decided to obtain more information from the Special Magistrate to ensure that he had considered relevant Case Law and relevant Statutes.  In fact, additional findings were inserted in the first portion of the recommendation by way of a Supplemental Findings of Facts.

On a motion by Commr. Stewart, seconded by Mr. Smith and carried unanimously by a 4-0 vote, the VAB overturned the Property Appraiser’s denial of the Agriculture Exemption of the property referred to in Petition Nos. 2008-28 and 2008-30, and that the VAB supported the recommendation of the Special Magistrate to grant Petitioner’s request for relief.

petition no. 2008-33 - abel serrano

Ms. Tucker stated that the Petitioner in this matter maintained goats on the property.  She explained that the VAB considered a written response from his attorney stating that his client did not speak English very well, and did not have the opportunity at the hearing to produce all of the evidence.  She stated that the Petitioner’s attorney asked the VAB to reconsider his client’s case because he was not allowed due process.  She remarked that the VAB asked her to talk to the Special Magistrate and research whether the evidence presented to him was appropriate and if he had taken everything into consideration, and explained that she presented the written response to the Special Magistrate together with another letter requesting additional time.  She stated that originally, the Petitioner himself, Mr. Abel Serrano, had called to ask for an extension to reschedule his hearing.  She noted that within the VAB process a Petitioner is always granted the ability to reschedule one time.  She mentioned that later his attorney called to ask for another schedule change which was not granted due to the fact his client had already taken advantage of rescheduling.   She went on to say that when she presented this information to the Special Magistrate he said that if he had known that Mr. Serrano had counsel who was unable to attend but would liked to have been there, he would have asked the VAB to send the case back to him.  Therefore, the VAB has the July 27, 2009, letter from Morton D. Aulls, Special Magistrate to her asking that she request the VAB to send the case back to him so that he can rehear it.

Commr. Hill asked if it would be appropriate to remand this back to the Special Magistrate.

Ms. Tucker responded that “yes,” it would be appropriate to remand it back.

On a motion by Commr. Stewart, seconded by Mr. Metz and carried unanimously by a 4-0 vote, the VAB agreed to remand Petition No. 2008-33 back to the Special Magistrate.

petition no. 2008-312 - hugh kent

Ms. Tucker stated that she had been asked to research this late Petition and to clarify procedurally what had happened and that she explained had spoken with the Petitioner, the Special Magistrate, and the Property Appraiser.  She commented that it came down to a concern on the part of the Petitioner that the Special Magistrate had gotten confused and had stripped him of his ability to take advantage of the exemption that the Property Appraiser had granted him.  She explained that the Petitioner was concerned that the Special Magistrate’s recommendation took from him something that the Property Appraiser had agreed to do.  After speaking with the Property Appraiser, she stated that their office was very clear that they were still granting the Petitioner the original exemption, and that the Special Magistrate’s recommendation in their mind, does not strip him of anything.  Therefore, procedurally, while the Petitioner may be concerned that the Special Magistrate’s recommendation strips him of something, she was confident in advising the VAB that the Property Appraiser was not taking it back.  She noted that the recommendation from the Special Magistrate to deny the Petitioner’s relief was only insofar as the portions of the property that were petitioned.

Commr. Hill stated that if she were hearing correctly, out of those properties, one section was purchased by someone else and, therefore, he does not receive that exemption; the remainder of the property consists of two sections for which he will be allowed the exemptions the same as had been done before.

Ms. Tucker responded that the Property Appraiser had granted an exemption for a portion of that property.  She explained that at the last meeting the VAB’s concern about supporting the recommendation of the Special Magistrate, after what she learned and articulated to the VAB, the concerns about whether or not there was confusion, should be assuaged.

Commr. Hill remarked that she was confident that they were doing the correct thing, but had a concern whether or not the Petitioner understood that, and opined that the Property Appraiser or Special Magistrate could assure him nothing was being taken from him.

Ms. Tucker stated that she would contact the Property Appraiser and the Special Magistrate tomorrow to ensure that that was communicated to the Petitioner.

Mr. Metz questioned whether the two properties that retain the exemptions were the two listed in the document as Parcel Numbers AK 1123259 and AK 3870977.

Ms. Tucker responded by stating that those were, in fact, the two parcels.

On a motion by Mr. Metz, seconded by Mr. Smith and carried unanimously by a 4-0 vote, the VAB affirmed the recommendation of the Special Magistrate based on the understanding that Parcel Numbers AK 1123259 and AK 3870977 were granted the agricultural exemptions.

future business

Ms. Tucker stated that the remand from today was for Special Magistrate David Taylor to get clarification on page 2 in the second paragraph of Petition No. 2008-253 - Richard F. Joyce.  She stated that she would contact Mr. Taylor and report to the members of the VAB within the next week to schedule an August meeting to review this remand.  She commented that at that meeting they would also discuss RFPs for the new year valuation Special Magistrates, as well as the calendar for the upcoming VAB year.

Mr. Frank Royce noted that 2008-33, Abel Serrano, was being remanded back to the Special Magistrate which would require an additional hearing with 25 days notice of the hearing date, and indicated that August may not be late enough to bring that back.

Ms. Tucker stated that it would be necessary to have an August meeting irrespective of those cases if for no other reasons than to settle on a calendar for next year and begin the RFP procedure for Special Magistrates.

Mr. Royce commented that they would not be able to certify in August.  He noted that it would require another meeting to hear the other two cases in order to certify the roll.

Ms. Tucker asked when the roll needed to be certified.

Mr. Royce stated that they were past the time for certification and that they were working with an incorrect assessment looking at last year’s value on the millage process for next year.  He remarked that whatever time in the future the VAB meets, they will then proceed with certification.

Ms. Tucker reported that last night at 5:30 p.m. the Department of Revenue sent a new revision of Rule 12-D which she will be disseminating to everyone soon.

Commr. Hill stated that there was no other business until they hear from Ms. Tucker regarding the next meeting.

Ms. Tucker commented that the August meeting would be brief, but there were procedural matters that were required for the forthcoming year in order to accommodate Mr. Royce’s timeframe presented at the previous meeting.

ADJOURNMENT

There being no further business to be brought to the attention of the VAB, the meeting was adjourned at 3:00 p.m.

 

_______________________________

JENNIFER HILL, VICE-CHAIRMAn

 

 

ATTEST:

 

 

________________________________

NEIL KELLY, CLERK