Opinion
111,273.
01-09-2015
In the Matter of the Equalization Appeal of CAMP TIMBERLAKE, LLC, for Tax Year 2012 in Johnson County.
Melissa Hoag Sherman, of Lathrop & Gage LLP, of Overland Park, for appellant Camp Timberlake, LLC. Kathryn D. Myers, assistant county counselor, for appellee Board of Johnson County Commissioners.
Melissa Hoag Sherman, of Lathrop & Gage LLP, of Overland Park, for appellant Camp Timberlake, LLC.
Kathryn D. Myers, assistant county counselor, for appellee Board of Johnson County Commissioners.
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
POWELL, J.
For the 2012 tax year, Johnson County (County) classified property owned by Camp Timberlake, LLC as commercial. Camp Timberlake appealed to the Kansas Court of Tax Appeals (COTA), claiming the property should have been classified as agricultural. COTA found Camp Timberlake failed to meet its burden to show agricultural activity took place on the property on or before January 1, 2012, and confirmed the County's classification as commercial. Camp Timberlake now appeals to this court, arguing COTA erred by: (1) finding Camp Timberlake bore the burden to provide evidence sufficient to justify an agricultural classification; and (2) erroneously interpreting and applying the law concerning agricultural classification. The County denies Camp Timberlake's claims and also challenges whether this court has subject matter jurisdiction.
Because we find: (1) the County bore the burden of proof to establish that the proper classification of the property was commercial; (2) it is undisputed that the County presented no evidence to support its commercial classification of the property; and (3) Camp Timberlake met its burden of production to establish that some agricultural activity took place on the property in 2011, we must vacate COTA's final order and remand with directions for COTA to enter an order classifying the property as agricultural.
Factual and Procedural Background
The property at issue is over 70 acres of wooded area adjacent to the Overland Park Arboretum in Johnson County, Kansas. At the time Camp Timberlake purchased the property in September 2011, the buildings on the property were in disrepair due to lack of maintenance. Camp Timberlake contested the County's classification of the property as commercial for 2012, arguing instead that the property should be classified as agricultural. After an informal hearing, the County agreed the property would be classified as agricultural for the 2013 tax year but not the 2012 tax year.
Although the documents are not included in the record, it appears Camp Timberlake timely appealed the informal hearing decision to COTA's small claims and expedited hearings division. A small claims hearing was held, and the hearing officer concluded the property should be classified as part residential and part agricultural because it had been subject to an agricultural lease with a farmer since Camp Timberlake purchased the property. The County appealed the small claims division decision to the full panel of COTA.
Bradley Bergman, the sole member of Camp Timberlake, testified before COTA that since purchasing the property, he built an enclosure for raising ducks, cleaned up the lodge building, and repaired one of the barns in order to store a tractor and a truck. Bergman also testified he entered into an oral lease agreement with Harold Green-an affidavit from Green was introduced swearing he entered into a verbal agricultural lease of the property in September 2011. The following year, on April 28, 2012, Camp Timberlake and Green entered into a written farm lease agreement.
According to Bergman, starting in the fall of 2011, Green was permitted to engage in agricultural-type activities on the property such as harvesting wood and farming. In exchange, Green would split any profits 50/50 with Camp Timberlake. Bergman claimed Green started cutting and collecting trees in 2011 to harvest timber and cleared the lake to see if he could raise trout in it. Green cleared trees from various places throughout the property and hauled them to an area where he had a commercial log splitter. Bergman testified trees were taken from nearly every corner of the property.
Bergman explained that after cutting down some trees, the wood was left in place on bricks so it could dry while trees or branches that were already dead and dry were moved to the area with the splitter. He testified there were about 50 places where the wood was piled. In the end, the wood was stacked and sold. Bergman stated individuals bought the wood to burn in their fireplaces and the hickory wood was often used for cooking barbecue.
Bergman introduced pictures of the property showing the collected wood, harvested trees, the log splitter, the area where the ducks were being raised, and the walnut groves. The duck enclosure was built in the summer of 2012. One of the pictures showed an open field with a hay bale where Bergman said he had talked with his neighbor about running cattle on it in the future. The hay bale had been purchased and moved to the property to be used to control erosion and for duck padding. Bergman stated he had purchased seedlings and saplings and planted them wherever there was an opening on the property, but he did not recall whether he had done so in 2011. He went through the pictures of the piled wood on the property and explained that if the cut end was gray, then the wood came from a dead tree; if the cut end was red or orange, the wood came from a live tree. Bergman could not say when the pictures of the property were taken.
Bergman testified that in 2011 Green cleared brush out of the lake, removed the algae, and installed a pumping system to aerate the lake in order to provide a proper habitat for trout. In 2012, the lake was stocked with rainbow trout, and an invoice dated October 31, 2012, documenting the purchase of the trout was introduced into evidence. Bergman also expressed interest in raising chickens and bees on the property in the future. The property also contained walnut trees, but Bergman testified he personally had not collected or sold any walnuts from the property and did not know if Green had done so. He testified that 100 percent of the income from the property was derived from agricultural activities and he had no other intent or use for the property.
The County called J. Cooper, an appraiser in the Johnson County Appraiser's office, to testify. COTA allowed Cooper to testify over Camp Timberlake's objection but noted it did not rely on Cooper's testimony to support or otherwise form its final order. Cooper inspected the property in the fall of 2012 and testified he saw ducks as well as piles of wood and split wood. He claimed the wood looked as if it had been dead trees that had been removed because they had fallen across the path. He also testified he did not see any newly planted trees, any other animals, or crops. The County presented no evidence to support the commercial classification of the property.
COTA ruled Camp Timberlake had failed to demonstrate agricultural activity had occurred on or before January 1, 2012, such that the property could be classified as agricultural for the 2012 tax year and upheld the County's determination that the property was properly classified as commercial. Camp Timberlake filed a petition for reconsideration, arguing COTA incorrectly interpreted and applied the law because the property was never used for commercial purposes and Camp Timberlake engaged in only agricultural endeavors since its purchase of the property. COTA denied Camp Timberlake's petition, and Camp Timberlake now timely appeals COTA's final order.
Does this Court Have Subject Matter Jurisdiction?
Initially, the County raises two issues which it claims are jurisdictional bars to our consideration of Camp Timberlake's appeal. First, the County argues the small claims division of COTA did not have subject matter jurisdiction to consider Camp Timberlake's classification challenge. Second, the County contends we lack jurisdiction to consider Camp Timberlake's claim that COTA improperly applied the burden of proof, arguing Camp Timberlake never raised the issue in its petition for reconsideration.
Whether jurisdiction exists is a question of law upon which our scope of review is unlimited. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 830, 104 P.3d 378 (2005).
A. Small Claims Division Jurisdiction
For the first time on appeal, the County claims we lack subject matter jurisdiction over this case because the small claims division of COTA did not have subject matter jurisdiction. Subject matter jurisdiction may be raised at any time, and the parties may not confer jurisdiction by failing to object to the absence of it. Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 875, 281 P.3d 135 (2012).
Specifically, the County argues the small claims division did not have statutory authority under K.S.A.2011 Supp. 74–2433f(c) to hear a case involving property classified as agricultural. If the small claims division did not have subject matter jurisdiction, as the County argues, then COTA did not have subject matter jurisdiction since Camp Timberlake failed to file a notice of appeal with COTA, rather than the small claims division, within 30 days after the informal hearing. See K.S.A.2011 Supp. 74–2438(a). If COTA lacked jurisdiction, then its decision is void and we do not have jurisdiction to review this case. See Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 456, 284 P.3d 337 (2012) (if lower tribunal lacks jurisdiction to enter order then appellate court does not acquire jurisdiction on appeal).
We can easily dispense with the County's argument. While it is true that K.S.A.2011 Supp. 74–2433f(c) does not give COTA's small claims division jurisdiction to hear a case involving property classified as agricultural, both parties admit the property was not classified as agricultural for the 2012 tax year, the year at issue, when Camp Timberlake appealed to the small claims division. Therefore, under K.S.A.2011 Supp. 74–2433f(c)(3), the small claims division did have jurisdiction to hear the case. The County's argument is without merit.
B. Burden of Proof
The County also argues that Camp Timberlake's appeal challenging COTA's finding that Camp Timberlake bore the burden of proof during the hearing was not properly preserved for appeal because Camp Timberlake failed to raise the argument in its petition for reconsideration as required by K.S.A.2011 Supp. 74–2426(b). Camp Timberlake counters that the 2014 amendment to this statute eliminated this requirement.
The right to appeal is entirely statutory, and subject to certain exceptions, we lack jurisdiction to entertain an appeal if the appeal was not taken in a manner prescribed by law. Harsch v. Miller, 288 Kan. 280, 287, 200 P.3d 467 (2009). The interpretation of a statute is a question of law over which our review is unlimited. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
As of July 1, 2014, K.S.A. 74–2426(b) no longer requires that a petition for reconsideration be filed with COTA; instead, the statute now provides that the filing of such a petition is optional. L.2014, ch. 141, sec. 1. We note, parenthetically, this 2014 amendment to K.S.A. 74–2426(b) was enacted along with a number of other statutory changes affecting COTA, including reverting the name of this tribunal back to the Board of Tax Appeals. See L.2014, ch. 141. While Camp Timberlake refers to the amendment to K.S.A. 74–2426(b) in its reply brief, neither party has filed anything with our court suggesting that these legislative changes should have any impact on this case. Except for the 2014 amendment to K.S.A. 74–2426(b), we have not considered those legislative changes and accordingly express no opinion on what impact, if any, they may have on remand.
The law in effect at the time of Camp Timberlake's initial challenge to the County's 2012 valuation required the aggrieved party to file a petition for reconsideration before COTA's decision could be appealed. K.S.A.2011 Supp. 74–2426(b) (“No final order of [COTA] shall be subject to review ... unless the aggrieved party first files a petition for reconsideration of that order with [COTA]....”). The new statute went into effect while this matter was on appeal. In its petition for reconsideration, Camp Timberlake argued COTA erred by finding the property was properly classified as commercial rather than agricultural. Significantly, the petition did not challenge COTA's finding that Camp Timberlake bore the burden of proof at the hearing, which would appear to bar our consideration of that issue on appeal. See In re Equalization Appeal of Prieb Properties, 47 Kan.App.2d 122, 126, 275 P.3d 56 (2012) (issue not raised in petition for reconsideration so issue not reserved for appellate review). However, Camp Timberlake argues for the amendment's retroactive application.
“[T]he general rule is that a statute operates prospectively unless (1) the statutory language clearly indicates the legislature intended the statute to operate retrospectively or (2) the change is procedural or remedial in nature, not substantive.” Dester v. Dester, 50 Kan.App.2d ––––, 335 P.3d 119, 122 (2014). Procedural laws deal with “ ‘the manner and order of conducting suits—in other words, the mode of proceeding to enforce legal rights.’ [Citation omitted.] Substantive laws establish the ‘rights and duties of the parties.’ [Citation omitted.]” Rios v. Board of Public Utilities of Kansas City, 256 Kan. 184, 191, 883 P.2d 1177 (1994). “There is no vested right in any particular remedy or method of procedure.” Jones v. Garrett, 192 Kan. 109, Syl. ¶ 6, 386 P.2d 194 (1963) ; see also In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 540, 957 P.2d 473 (1998) (statute at issue is procedural and does not prejudicially affect any substantive right, therefore may be applied retroactively).
Clearly, K.S.A.2011 Supp. 74–2426 is procedural in nature as it merely sets out the procedural requirements to appeal a COTA decision. No vested right is affected; therefore, the 2014 amendment to the statute, effective July 1, 2014, has retroactive application to Camp Timberlake's appeal in this case. Accordingly, Camp Timberlake is not precluded from raising the burden of proof issue for the first time on appeal.
Did COTA Erroneously Interpret and Apply the Law Concerning Camp Timberlake's Burden of Proof?
Camp Timberlake argues COTA improperly found Camp Timberlake bore the burden to prove the property should not be classified as commercial. COTA stated this finding was in accord with “the long-held principle that public officials are presumed to discharge their duties fairly, reasonably, and impartially” and that a person wanting to challenge the validity of the government's actions had the burden to prove such invalidity. See generally Dauffenbach v. City of Wichita, 233 Kan. 1028, 1033, 667 P.2d 380 (1983) (“general presumption that a public official will act fairly, reasonably and impartially”); In re Tax Appeal of National Catastrophe Restoration, Inc., 48 Kan.App.2d 189, 196, 291 P.3d 89 (2012) (“ ‘[A] presumption of validity attaches to the Department's audit assessment, and it is [the][taxpayer's burden to rebut that presumption.” ’). The County, not surprisingly, agrees that Camp Timberlake had the burden to prove the County's classification of the property as commercial was improper.
COTA decisions are reviewed under the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq. See K.S.A.2011 Supp. 74–2426(c) ; K.S.A.2013 Supp. 77–603(a). The KJRA specifically provides the standards of review. K.S.A.2013 Supp. 77–621(c). We are authorized to grant relief when the party seeking such relief sustains its burden to prove the invalidity of the agency action in one or more of the following manners: (1) The agency erroneously interpreted or applied the law (K.S.A.2013 Supp. 77–621 [c][4] ); (2) the agency's decision was based on a determination of fact that was not supported to the appropriate standard of proof by evidence that was substantial when viewed in light of the record as a whole (K.S.A.2013 Supp. 77–621 [c][7], [d] ); and (3) the agency's decision was otherwise unreasonable, arbitrary, or capricious (K.S.A.2013 Supp. 77–621 [c][8] ).
The County's Burden of Proof
Camp Timberlake argues that because the County originally classified the property as commercial, pursuant to K.S.A.2011 Supp. 79–1609, the County had the burden to prove the propriety of its commercial classification of the property. The County disagrees, contending that because Camp Timberlake stipulated to its value should it be determined to be properly classified as commercial and only challenges the classification of the property, Camp Timberlake had the burden of proof before COTA.
K.S.A.2011 Supp. 79–1609 states:
“With regard to any matter properly submitted to [COTA] relating to the determination of valuation of residential property or real property used for commercial and industrial purposes for taxation purposes, it shall be the duty of the county appraiser to initiate the production of evidence to demonstrate, by a preponderance of the evidence, the validity and correctness of such determination.”
As the question before us is one of statutory interpretation, “[o]ur goal is to determine the legislature's intent through the statute's language, which is generally done by giving ordinary words their ordinary meaning.”In re Protests of Oakhill Land Co., 46 Kan.App.2d 1105, 1111, 269 P.3d 876 (2012). In addition, we are not required to give deference to COTA's interpretation of a tax statute when conducting our unlimited statutory review. In re Tax Exemption Application of Kouri Place, 44 Kan.App.2d 467, 471–72, 239 P.3d 96 (2010). Finally, we must be mindful that statutes which impose a tax are to be construed strictly in favor of the taxpayer. In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 223, 883 P.2d 1194 (1994).
The County is incorrect in stating that the fair market value of the property was not at issue because Camp Timberlake stipulated to the value of the property if it were properly classified as “commercial.” The dispute in this case is ultimately determining the fair market value-or valuation-of the real property. The proper valuation determines the correct amount of property tax to be assessed. One of the elements that factors into fair market value is the property's classification, which then determines the rate of assessment. See K.S.A.2011 Supp. 79–503a ; K.S.A.2011 Supp. 79–1439. Another panel of our court explored this problem in an unpublished opinion not long ago. See In re Equalization Appeal of Wagner, No. 107,472, 2012 WL 3290147 (Kan.App.2011) (unpublished opinion).
In Wagner, the taxpayer challenged the quality rating used by the county to determine the valuation of her residential property, arguing COTA improperly shifted the burden of proof to her. Relying on K.S.A.2011 Supp. 79–1609, the taxpayer argued the quality rating used by the county was improperly allowed to stand because she had failed to present evidence that the quality rating should be reduced. The panel agreed, holding that the county not only had the burden to prove the correctness of the quality rating but also had the burden to prove the correctness of its measurements of the square footage of the garage of the taxpayer's home, which the taxpayer also challenged. 2011 WL 3290147, at *4–5. The implication of this holding is that the county did not just have the burden on the overall valuation of the subject property. Because square footage and quality ratings factor into a proper valuation of residential property pursuant to K.S.A.2011 Supp. 79–1609, the county also had the burden to prove significant disputed facts presented at the hearing which factor into the property's valuation.
While we are not prepared to say the County bears the burden of proof as to every fact supporting its valuation because resolution of that question is unnecessary in this case, we do agree that because the classification of the property constitutes a major element in determining its valuation, in the present case the County bears the burden of proof to establish its classification of Camp Timberlake's property as commercial. Without an appropriate classification, an accurate valuation of the property and subsequent calculation of the tax is impossible. COTA erred in holding otherwise.
Because the County had the burden to prove the correctness of the property's classification, and because the County presented no evidence to support its commercial classification of the property, we must vacate COTA's final order sustaining the County's determination.
Did the District Court Erroneously Interpret and Apply the Law Concerning the Agricultural Classification of Property?
Finally, because we have vacated COTA's order upholding the County's classification of the property as commercial, we must still address Camp Timberlake's contention that the property is more properly classified as agricultural. COTA ruled Camp Timberlake had not met its burden in proving the property should be classified as agricultural. Therefore, we need to decide: first, what was Camp Timberlake's burden in trying to establish the agricultural classification of the subject property; and second, whether there are sufficient facts in the record to support an agricultural classification.
Camp Timberlake's Burden of Proof
Because COTA incorrectly determined Camp Timberlake had the burden of proof relating to the classification of the property, we still must answer the question of what burden Camp Timberlake had in its attempt to show the property should be properly classified as agricultural. Again, this is a question of law upon which our review is unlimited. In re Tax Exemption Application of Kouri Place, 44 Kan.App.2d at 472.
Generally, it is well settled that the burden of proof on any point is upon the party asserting it. Wycoffv. Board of County Commissioners, 191 Kan. 658, 665, 383 P.2d 520 (1963) ; see also In re Tax Appeal of National Catastrophe Restoration, 48 Kan.App.2d at 196 (burden of proof means preponderance of the evidence). But because we have already answered the question concerning the burden of proof with regard to the property's classification, the more difficult question is what Camp Timberlake's burden was before COTA, especially when it was asserting not just a negative position (not commercial) but also an affirmative position (property is agricultural). Fortunately, our Supreme Court has answered this question.
In Jensen v. Jensen, 205 Kan. 465, 470 P.2d 829 (1970), Carl Jensen sued his former wife, Grace Jensen, for money he claimed he lent her. Grace claimed the money was a gift. The district court ruled that Carl failed to meet his burden to prove the transaction was a loan; he appealed, claiming, among other things, the district court erred in holding that he bore the burden of proof. The Supreme Court rejected his argument, holding that Carl was not relieved of his duty to prove the existence of a loan just because Grace asserted the money was gift:
“The burden of proof is not to be confused with the burden of going forward with the evidence. The burden of proof is always on the party asserting an affirmative of an issue and remains with him throughout the trial. Even though it may be incumbent upon the other party to proceed with the introduction of evidence at some stage of the proceedings, the burden of going forward with the evidence does not change the burden of proving a disputed issue.” 205 Kan. at 467.
Under the circumstances of this case, since the County had the statutory burden to prove the valuation of commercial property, including its elements such as the validity of the commercial classification itself, Camp Timberlake merely had the burden of production to present some evidence supporting its contention that the property should be classified as agricultural. The burden did not shift to Camp Timberlake just because it was asserting the property should be classified as agricultural.
Was sufficient evidence presented to support an agricultural classification?
COTA found Camp Timberlake had “failed to meets its burden to demonstrate that the requisite agricultural activity occurred on or before January 1, 2012.” Camp Timberlake disagrees and asserts it presented some evidence of agricultural activity, which it claims is all the law requires, arguing that it was especially true in this case since the only evidence of economic activity was agricultural in nature.
Given the factual nature of this question, our charge is to determine whether COTA's decision was based on a determination of fact that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole. K.S.A.2013 Supp. 77–621(c)(7). For purposes of our review of factfindings express or implied, our review of the record as a whole means that
“the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record ... cited by any party that supports such finding, including determinations of veracity by the presiding officer.... [T]he court shall not reweigh the evidence or engage in de novo review.” K.S.A.2013 Supp. 77–621(d).
The Kansas Constitution provides that “[l]and devoted to agricultural use” is valued based on its income production rather than the price a willing buyer would pay a willing seller. See Kan. Const., Art. 11, § 1 (a)(2) (2011 Supp.); K.S.A.2011 Supp. 79–1476. The Kansas Constitution, Article 11, § 12, gave the legislature the power to define what constitutes land devoted to agricultural use, and the legislature has provided that such land must be
“devoted to the production of plants, animals or horticultural products, including but not limited to: Forages; grains and feed crops; dairy animals and dairy products; poultry and poultry products; beef cattle, sheep, swine and horses; bees and apiary products; trees and forest products; fruits, nuts and berries; vegetables; nursery, floral, ornamental and greenhouse products.” K.S.A.2011 Supp. 79–1476.
“[I]f the land is used in the production of one of the items listed [in K.S.A.2011 Supp. 79–1476 ] and is not used for rural or farm homesites, or suburban residential or recreational purposes, the land is properly classified as agricultural.” Board of Johnson County Comm'rs v. Smith, 18 Kan.App.2d 662, 670, 857 P.2d 1386 (1993). In order to classify property as “devoted to agricultural use,” at least some actual activity must be taking place. In re Protests of Oakhill Land Co., 46 Kan.App.2d at 1115. It is not enough to merely enter into a lease for someone to farm the property because [t]he mere existence of a lease allowing production does not demonstrate that any production actually took place.” 46 Kan.App.2d at 1116. A lease may be a factor when considering whether some agricultural activity occurred on the property, but it must be accompanied by actions that took place during the relevant time frame. It is irrelevant why the taxpayer is seeking an agricultural classification or whether qualified activity took place outside the relevant time frame. See Smith, 18 Kan.App.2d at 671.
Generally, real estate is valued based upon the use made of it as of January 1; the county appraiser must send landowners a notice of classification and valuation by March 1. See K.S.A.2011 Supp. 79–1460(a) ; Division of Property Valuation Directive No. 99–038. For agricultural properties, however, the Division of Property Valuation has recognized that seasonal uses may occur. Thus, the Division has issued a directive providing that for land that “has seasonal uses typical to the trade that do not necessarily take place on January 1st or on a 12–month basis,” that property “shall be classified annually based upon the overall use during the prior year or operating period.” Division of Property Valuation Directive No. 99–038. These directives must be followed by county appraisers. See K.S.A. 79–505. Therefore, COTA was correct to look to the use of the property in 2011 in order to determine its classification for 2012.
Concerning evidence of agricultural use in 2011, COTA found: (1) Camp Timberlake entered into an oral agricultural lease of the property in September 2011; (2) no agricultural income was received in 2011; (3) neither Green nor Camp Timberlake sold any agricultural products from the property in 2011; (4) Camp Timberlake had not met its burden to establish that any live trees were cut down in 2011 for lumber, (5) Camp Timberlake had not met its burden to establish that any material quantity of wood was handled or cut in 2011; (6) Camp Timberlake had not met its burden to establish that the log splitter was either purchased in 2011 or was located on the property in 2011; and (7) Green had taken steps to prepare the small lake to ready it for fishing, Bergman testified that pumps to aerate the lake had been installed in late 2011, and brush, debris, and algae had been removed from the lake.
However, during the evidentiary hearing before COTA, the following exchange took place:
“Q. Going back to 2011, Mr. Bergman, what specific work did Mr. Green do at the property?
“A. Mr. Green was starting to clear trees and to harvest timber. There were trees that had fallen that needed to be harvested. There were some trees that were dead and were dangerous that needed to be harvested. And he started on that work that fall.
“Q. Was any work performed with regard to the lake?
“A. There was. The lake was completely overgrown and had brush in it. And he started to clear the lake because we were interested in seeing if we might be able to raise trout in it.
“Q. Was that all done in 2011?
“A. It was.
“Q. Now, you mentioned the harvesting of timber. What work was done to harvest timber in 2011?
“A. We started to clear trees and take them down to an area where we have a commercial splitter. And he—he started to, to move them with tractors and some of them were harvested in place and the wood was collected in various places throughout the property.
“Q. When did that work begin?
“A. Right after we purchased it. [Note: purchase was in September 2011.]
“Q. Where on the property is timber harvested?
“A. Virtually everyplace. There's trees on the entire property, as you can tell, from the aerial except for down in the floodplain, or the meadow, as they refer to it. But there are trees that have been taken from every corner of that property.
“Q. Was that true in 2011 as well?
“A. Yes.”
Because COTA improperly placed the burden on Camp Timberlake, it repeatedly held that Camp Timberlake had not met its burden of proof on various factual contentions to establish agricultural activity. However, when looking at the evidence in its proper light, we find that Camp Timberlake's evidence is sufficient to justify an agricultural valuation classification in the absence of any evidence from the County to support its commercial classification. Testimony by Camp Timberlake of entering into an oral agricultural lease, cutting down and harvesting trees, working to clear the lake for raising trout, and obtaining a commercial log splitter for the property is sufficient evidence in this context to support an agricultural classification.
In In re Protest of Oakhill Land Co., there was no showing that any agricultural activity had taken place, such as the cutting of timber. While it is true that our court held in Oakhill that a farm lease was not enough, we also held that “some activity” was all that was required. 46 Kan.App.2d at 1115. Such is not the case here. In addition to the oral farm lease, we have some agricultural activity that took place in 2011, such as the cutting of timber and preparation of the lake for the stocking of trout, and the absence of any activity to establish a different classification.
Accordingly, we reverse COTA's finding that Camp Timberlake bore the burden of proof as to the classification of the subject property, we vacate COTA's final order upholding the County's classification of the property as commercial, and we remand with directions for COTA to classify the subject property as agricultural for the tax year 2012.