County Executive v. Supervisor of Assessments

Singley, J., delivered the opinion of the Court. In this appeal from an order of the Maryland Tax Court, neither party is content. What happened was that the Supervisor of Assessments of Montgomery County (the Supervisor) assessed 252.61 ± acres of land and improvements located near Gaithersburg, owned by Virginia Casey Visnich, at $2,325,360.00 for the tax year 1972 ($2,319,160.00, land; $6,200.00, improvements). Mrs. Visnich appealed to Montgomery County’s Appeal Tax Court, which reduced by 25 per cent the assessment of 210.16 acres of the tract zoned 1-1 (light industrial) from $2,313,640.00 to $1,735,230.00.

Both Mrs. Visnich and Montgomery County (the County) appealed to the Maryland Tax Court. 1 Mrs. Visnich’s appeal resulted in a further reduction by 25 per cent in the assessment of the 210.16 acres from $1,735,230.00 to $1,156,820.00, an order from which Montgomery County has appealed to this Court. Neither party has challenged the assessment of the remaining 42.44 acres of the tract zoned R-R (rural residential) at $5,520.00 or the assessment of $6,200.00 on improvements, both of which were imposed by the Supervisor of Assessments, and have remam d unchanged in the successive appeals. The County’s unhappiness stems from the fact that the Tax Court and the Appeal Tax Court each reduced the assessment of the 210.16 acres zoned 1-1 because of the “sewer moratorium,” 2 when, in a strict sense, it was not the moratorium which precluded sewer service. Mrs. Visnich’s discontent, on the other hand, proceeds from the fact that although the land which is the subject of the controversy is admittedly used for agricultural purposes, ⁶⁶ she was denied an assessment based on agricultural use because Chapter 75 of the Laws of 1972, now Code (1957. 1975 Repl.

Vol.) Art. 81, § 19 (b) (2) (A) (i), effective 1 July 1972, denied preferential agricultural use treatment for assessment purposes to land which has received a higher zoning classification “at the application or at the instance of the owner.” 3 See Supervisor of Assessments v. Ely, 272 Md. 77 , 321 A. 2d 166 (1974). It seems that on 31 May 1963, Roger H. Spencer, a real estate broker, had sought, as “agent,” and had ultimately received, without opposition, a reclassification of 210.16 acres of the Visnich farm from R-R to 1-1. While Mrs. Visnich contends that Spencer was not her agent, and that she was unaware of his activity as regards the property, this is an argument with which we need not be concerned, for reasons to be developed. Because Spencer said in a letter which was admitted in evidence that he had undertaken the rezoning in order to increase the sale potential of the property and the County proved that notice of the proposed rezoning was given by publication and by posting the property, and that three parcels were sold by Spencer, apparently for Mrs. Visnich's account, subsequent to the rezoning, it is not likely that we would be persuaded by Mrs. Visnich’s argument, if the issue were properly before us.

The County’s principal contention is that the Tax Court’s further reduction of 25 per cent in the assessment of land zoned 1-1, resulting in an aggregáte reduction of almost 50 per cent, was not supported by competent, material or substantial evidence and was therefore arbitrary and capricious. With this contention, we agree. The County’s other argument was clearly supported by testimony that the Visnich property was in no way directly affected by the sewer moratorium, because no sewer was available and none would be available before 1979. As a ⁶⁷ result, a 25 per cent reduction in the assessment predicated on the moratorium found no support in the testimony. 4 On the contrary, expert testimony by Edward Graham, who described himself as a planner employed by Montgomery County, adduced in behalf of the County made it clear that while water service might be available, the Visnich property was not scheduled for program-sized sewer service (diameter of 15 inches or more) prior to 1979 under the County’s Ten Year Water and Sewerage Plan, adopted 3 June 1971. 5 The County sought to buttress its challenge of the reduction in assessment ordered by the Appeal Tax Court through the expert testimony of its appraiser, Walter J. Locke.

It was Mr. Locke’s opinion that the 252.61 acres had a fair market value of $14,192,000.00. 6 His opinion was based on what he regarded as comparable