Palmer D. Strand And Patricia N. Strand v. Vicky Horton, Spokane County Assessor

• Court: Court of Appeals of Washington
• Decided: November 26, 2013
• Docket: 31340-9
• Status: Unpublished

Opinion

FILED

November 26, 2013

In the Office of the Clerk of Court W A State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

PALMER D. STRAND, ) PATRICIA N. STRAND, ) No. 31340-9-III ) Appellants, ) ) v. ) ) UNPUBLISHED OPINION SPOKANE COUNTY ASSESSOR, ) ) Respondent. )

SIDDOWAY,1. Palmer and Patricia Strand challenged the Spokane County

Assessor's valuation of their residential property before the Spokane County Board of

Equalization and the Board of Tax Appeals. Both rejected their appeals. They sought

judicial review in superior court, which upheld the validity ofthe agency action. They

now appeal the order of the superior court. We agree that the Strands have not met their

burden of proof and affIrm.

FACTS AND PROCEDURAL BACKGROUND

Palmer and Patricia Strand own a fIve-acre single-family residential property

located on Long Lake, in Nine Mile Falls. They purchased the ground on which the

home is located in 2000, for $100,000. They built a ranch-style home with attached

garage and a 1,200 square foot shop, completing them in 2003. The total living area No. 3 I 340-9-II1 Strand v. Spokane County Assessor

of the home is about 4,096 square feet, with an above-ground living area and fmished

basement. The quality of the construction is rated '"average-minus.''' Administrative

Record (AR) at 130.

In 2009 the county assessor conducted an exterior inspection of the Strands'

property for tax purposes, with the Strands in attendance. According to an appraising

supervisor who was present and whom the Board of Tax Appeals later found credible,

Ms. Strand refused to let the assessor enter the home to inspect the interior. The

assessor consequently relied on information from earlier assessments, ultimately

valuing the land at $200,000 and the improvements at $249,900, for a total value of

$449,900.

The Strands petitioned the Spokane County Board of Equalization to reduce the

valuation to $320,000. Their petition and evidence identified errors in the assessor's

work and presented comparable sales and other evidence of their own. They attended a

hearing of the equalization board in August 20 I 0 at which their petition was considered.

Ms. Strand testified. After considering the evidence, the five-member board determined

that the Strands had failed to meet their burden of presenting clear, cogent, and

convincing evidence that the assessor's valuation was incorrect and sustained the

determination of the assessor.

No. 31340-9-II1 Strand v. Spokane County Assessor

The Strands appealed the decision of the equalization board to the Board of Tax

Appeals (Board). A telephonic hearing was held in August 2011 before a tax referee

presiding for the Board. Ms. Strand testified as did Joseph Hollenback, an appraisal

supervisor for the assessor. After hearing the testimony, reviewing the evidence, and

considering the arguments ofthe parties, the referee issued a 23-page initial decision that

summarized the parties' evidence and testimony and set forth her findings and

conclusions.

Among the referee's findings were that the Strands alleged many inaccuracies in

the assessor's sales grid, records and descriptions; faulty appraisal techniques; and invalid

comparison characteristics-flaws that they "broadly characterized as frauds committed

by the Assessor." AR at 147-48 (Finding of Fact 9). While the referee found some errors

in the assessor's information, she nonetheless found the Strands' allegation of fraud to be

"unsupported by any credible evidence," adding that the "alleged errors in the description

ofthe subject are mostly minor in nature and do not affect the valuation determination"

and "[t]here has been no fraud committed by the Assessor in the valuation of the Owners'

property." Id. at 148 (Finding of Fact 10). She further found:

The alleged errors do not diminish the weight the Board attaches to the Assessor's sales grid. Most of the matters cited by the Owners are trivial, irrelevant, and immaterial.

Id. (Finding of Fact 11). Concluding that the Strands had failed to meet their burden of

proof, she sustained the determination ofthe equalization board and ordered that the

No. 31340-9-111 Strand v. Spokane County Assessor

county apply land, improvement, and total values of $200,000, $249,900, and $449,900

respectively to the Strands' property.

The Strands petitioned the Board for review of the initial decision of the tax

referee. The Board concluded that "the issues raised by the Appellant were adequately

addressed in the Initial Decision and that the evidence was properly considered." ld at

13. It denied the petition and adopted the initial decision as its final decision.

The Strands then filed suit in superior court seeking judicial review of the Board

decision. The superior court heard oral argument of their appeal in June 2012, found that

the Board's final decision "is not contrary to law and is adequately supported by

substantial evidence in the record," and affirmed. Clerk's Papers at 445.

The Strands finally sought direct review of the superior court's decision by the

Washington Supreme Court. The Supreme Court entered an order transferring the appeal

to this court.

ANALYSIS

We review decisions of the Board of Tax Appeals under the Administrative

Procedure Act (APA), chapter 34.05 RCW, which places the burden of demonstrating the

invalidity of agency action on the party asserting invalidity-here, the Strands. RCW

34.05.570(1)(a); Spokane County v. E. Wash. Growth Mgmt. Hearings Ed, 173 Wn. App.

310,325,293 P.3d 1248 (2013). On appeal, we review the Board's decision from the

same vantage point as the trial court, applying APA standards directly to the record

before the Board. Id. We will grant relief from a Board order only if we determine that it

suffers from one or more of the infirmities identified in RCW 34.05.570(3). Id. (citing

Lewis County v. W. Wash. Growth Mgmt. Hearings Bd., 157 Wn.2d 488,498, 139 P.3d

1096 (2006)). We are authorized by the APA to grant relief only if we determine that the

person seeking judicial reliefhas been substantially prejudiced by the agency action

complained of. RCW 34.05.570(1)(d).

The Strands appeal pro se. Their briefing does not contain assignments of error

and issues pertaining to the assignments of error of the sort required by RAP 10.3(a)(4).

It also does not identifY the statutory infirmity or infirmities on which they rely for their

appeal. We construe the rules of appellate procedure liberally to promote justice and

facilitate the decision of cases on the merits, however, see RAP 1.2(a), and are able to

discern three general assignments of error.

First, the Strands argue that their constitutional rights were violated when the

Board failed to give substantial weight to some of their evidence after they refused entry

to the assessor, implicitly basing that assignment of error on RCW 34.05.570(3)(a). We

review agency orders for claimed constitutional error de novo.

Second, they argue that the tax referee violated the APA's rule-making

requirements, implicitly basing that allegation of error on RCW 34.05.570(3)(c). We

review allegations that an agency has engaged in unlawful procedure or failed to follow a

prescribed procedure de novo.

No. 31340-9-III Strand v. Spokane County Assessor

Finally, they assign error to 15 of the Board's findings of fact, implicitly basing

that part of their appeal on RCW 34.05.570(3)(e). We review allegations that an

agency's order is not supported by substantial evidence by determining "whether there is

'a sufficient quantity of evidence to persuade a fair-minded person ofthe truth or

correctness of the order.'" Kittitas County v. E. Wash. Growth Mgmt. Hearings Ed., 172

Wn.2d 144, 155,256 P.3d 1193 (2011) (internal quotation marks omitted) (quoting

Thurston County v. W. Wash. Growth Mgmt. Hearings Ed., 164 Wn.2d 329,341, 190

P.3d 38 (2008)).

We address these three areas of alleged error in turn.

1 Alleged Constitutional Error

All real property in Washington subject to taxation must be listed and assessed

every year. RCW 84.40.020. An assessor who establishes a property's value using

statistical update techniques "shall cause taxable real property to be physically

inspected and valued at least once every six years." RCW 84.41.030, .041. The

property tax statute requires physical inspection of the exterior of property to ensure

correct valuation. State v. Vonhof, 51 Wn. App. 33,40, 751 P.2d 1221 (1988)

(assessor's presence on exterior of property under RCW 84.40.025 is not a search

within state or federal constitution). In order that this physical inspection may be

accomplished, RCW 84.40.025 provides that real property is subject to visitation,

investigation, examination, discovery, and listing at any reasonable time by the county

assessor or the assessor's designated employee.

The Department of Revenue does not interpret RCW 84.40.025 as authorizing

assessors to have access to the interior of a property, as the Strands learned during the

course of proceedings below. The Board has held, however, and held in this case, that

it will decline to consider an owner's claims about a condition or quality of his or her

property that only the owner knows about if the owner refuses to allow the assessor to

inspect the property prior to an appeal hearing. It explained its reasoning in Cooney v.

Theodore, No. 55092,2001 WL 355885, at *13 (Wash. Bd. of Tax Appeals Jan. 25,

2001):

We recognize that many home owners may very well feel intimidated, even fearful, about allowing the Assessor into their homes, but the Assessor is entitled to a fair hearing of her case as well. One of the major elements of a fair hearing is the opportunity to respond to the arguments and evidence of the other party. "Although court-type discovery is not required in administrative proceedings, fundamental fairness requires that a party be given the opportunity to know what evidence is offered or considered and a chance to rebut such evidence." 2 Am. Jur. 2d, Administrative Law § 327 (1994). Contrary to the view of the Owners, fairness requires us to allow both sides a reasonable opportunity to examine and contest the evidence offered by the other side prior to the hearing. Waiting until after the hearing is equivalent to not allowing an opportunity at all.

The Board's decision in Theodore cited to its 1992 decision in Dare v. Clifton, No.

41953, 1992 WL 289454, at *4 (Wash. Bd. of Tax Appeals Aug. 28, 1992) in which

the Board had similarly refused to accept the owner's arguments concerning the

condition of the property because the owner did not cooperate when the assessor

attempted to inspect the property after the value estimate was appealed. Thus,

whether the property owner refuses to allow an inspection at the time of a regular

physical inspection for assessment or in connection with an appeal of the assessor's

valuation, the consequence is the same: the Board will not consider evidence from the

owner that the assessor was denied an opportunity to independently examine.

The Strands' bare claim that applying the rule is unconstitutional because

requesting entry into their home was "unconstitutional (state Sections 2, 3, 7 and

federal)," Br. of Appellant at 27, is insufficient to warrant review. See State v.

Johnson, 119 Wn.2d 167, 171, 829 P .2d 1082 (1992) {'''naked castings into the

constitutional sea'" are not sufficient to command judicial consideration (internal

quotation marks omitted) (quoting In re Rosier, 105 Wn.2d 606,616, 717 P.2d 1353

(1986))). The Board's finding on this point is consistent with the statutory

requirement that an assessor visit and inspect property to ensure its accurate

characterization and with the Washington Constitution's requirement of uniform

taxation. CONST. art. 7, § 1. The Board's refusal to consider evidence that one party

has been denied an opportunity to independently examine is unsurprising. Cf. CR

37(b)(2)(B) (in the context of civil litigation, sanctions for a party's failure to respond

to discovery include orders refusing to allow the disobedient party to support its

claims or introduce designated matters in evidence).

The Strands cite Seymour v. Department ofHealth, Dental Quality Assurance

Commission, 152 Wn. App. 156, 160,216 P.3d 1039 (2009), but it does not support

their challenge to the Board's position on the fairness problem with unilateral,

unexaminable evidence. Seymour held that a warrantless administrative inspection of

the interior of a dentist's office not authorized by statute violated the Fourth

Amendment. In this case, there was no warrantless entry into the Strands' home by

the assessor, the Board merely disregarded certain evidence on a basis consistent with

Board precedent. The Board did not act unconstitutionally.

II. Alleged Failure To Follow Rule-Making Procedure

The Strands also argue that in following Dare and Theodore, the tax referee

violated the APA's rule-making requirements. They suggest that the principle on which

the Board declined to consider evidence established in those cases, followed in their case,

constitutes a "rule." Br. of Appellant at 30.

Adjudicated cases sometimes require agencies to interpret statutes and, in the

process, to provide a guide to interpretation and action that the agency can be expected to

take in future cases. See Budget Rent A Car Corp. v. Dep't ofLicensing, 144 Wn.2d 889,

896,31 P.3d 1174 (2001) (in interpreting how it would apply a statutory measure,

No. 3 I 340-9-III Strand v. Spokane County Assessor

department was interpreting a phrase, not making a rule). The Washington Supreme

Court has rejected the argument that adjudicated interpretations-while they do guide

later decisions-are "rules" that require rule making under the AP A, explaining in

Budget:

[W]e are not unmindful of the consequences were we to adopt a very broad interpretation of "rule" (in line with Budget's argument), and the fact that it would all but eliminate the ability of agencies to act in any manner during the course of an adjudication. The simplest and most rudimentary interpretation of a statute or regulation would require an agency to go through formal rule-making procedures. While it is true that the APA is designed to provide "greater public and legislative access to administrative decision making," RCW 34.05.001, we believe it is equally true that the APA's provisions were not designed to serve as the straitjacket of administrative action.

Id. at 898.

In applying a principle first adopted by the Board in 1992 in Dare, the tax referee

merely applied board precedent to the evidence and parties before her; she did not

promulgate a rule. Neah Bay Chamber ofCommerce v. Department ofFisheries, 119

Wn.2d 464, 466, 470, 473-74,832 P.2d 1310 (1992), which is cited by the Strands,

determined a standard of review formerly applied to rules (one now superseded by

statute) and is inapposite. The Board did not engage in unlawful procedure or decision

making.

III Allegedly Insufficient Evidence To Support Findings ofFact

We tum, finally, to the Strands' challenges to IS findings of fact by the Board. As

earlier noted, we review allegations that an agency's order is not supported by substantial

evidence by determining whether there is a sufficient quantity of evidence to persuade a

fair-minded person of the truth or correctness of the order. In doing so, "we view facts

and inferences in a light most favorable to the party that prevailed in the highest forum

exercising fact-finding authority," in this case, the Spokane County Assessor. Phoenix

Dev., Inc. v. City o/Woodinville, 171 Wn.2d 820,831,256 P.3d 1150 (2011). In

addition, deference is given to the agency regarding witness credibility and conflicting

testimony; we will not weigh the evidence or substitute our judgment on those matters for

the Board's.

In reviewing the Strands' assignments of error to the Board's findings, it is evident

that the record they have provided is inadequate for review. In certifying the

administrative record, the clerk of the Board notified the parties that "[t]he Board did not

cause a transcript of the oral testimony adduced at the hearing to be printed. It shall be

the obligation of the party wishing a transcript to order the same from the Board and

assume the cost of printing same." AR Cover Certificate. The order and decision of the

Board clearly indicates that during the course of the formal hearing, both Ms. Strand and

Mr. Hollenback testified under oath. Yet no transcript of their testimony has been

provided.

It is the appellant's burden to provide the court with all portions of the record

necessary to review the issues raised on appeal. RAP 9.2(b). It is possible if not likely

that Mr. Hollenback's testimony provided support for some of the findings that the

Strands challenge on appeal. Ms. Strand's testimony could conceivably have provided

support as well. We need not speculate. A party who argues that facts found by the fact

finder were not supported by evidence must provide a complete record of the evidence on

which the fact finder was entitled to rely. Where the appellant fails to provide a verbatim

report of proceedings, the findings of fact are all deemed verities and binding on appeal.

Morris v. Woodside, 101 Wn.2d 812, 815,682 P.2d 905 (1984).

With the Board's findings all deemed verities, the Strands have not argued that the

findings, if all true, fail to support the Board's conclusions of law. They have failed to

demonstrate any invalid Board action.

Affirmed.

A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.

Siddoway, J.

WE CONCUR:

~ C.J. CeT Korsmo,

Brown, J.