                                        No. 113,157


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS


                               In the Matter of the Protest of
                             JONES, VEARL W. JR. & LINDA J.
                     for the Year 2012 in Wyandotte County, Kansas,

                                             and

                        In the Matter of the Equalization Appeal of
                             JONES, VEARL W. JR. & LINDA J.
                     for the Year 2013 in Wyandotte County, Kansas.


                              SYLLABUS BY THE COURT


1.
       An appellate court reviews a decision from the Board of Tax Appeals in the
manner prescribed by the Kansas Judicial Review Act, K.S.A. 77-601 et seq. The court
may grant relief pursuant to K.S.A. 2015 Supp. 77-621.


2.
       A court does not extend deference to an agency's statutory interpretation and,
instead, reviews such questions de novo. In matters of statutory interpretation, a court's
goal is to determine the legislature's intent through the statute's language, which is
generally done by giving ordinary words their ordinary meaning.


3.
       Statutes which impose a tax are to be construed strictly in favor of the taxpayer.




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4.
        In cases involving statutory construction, courts are not permitted to consider only
a certain isolated part or parts of an act but are required to consider and construe together
all parts thereof in pari materia.


5.
        With regard to the Board of Tax Appeal's factual findings, a court's duty is to
determine whether the evidence supporting the agency's factual findings is substantial
when considered in light of the record as a whole. The term "in light of the record as a
whole" is statutorily defined to include the evidence both supporting and detracting from
an agency's finding. In reviewing the evidence in light of the record as a whole, a court
neither reweighs the evidence nor engages in de novo review. K.S.A. 2015 Supp. 77-
621(c)(7), (d).


6.
        Land devoted to agricultural use shall not include those lands which are used for
recreational purposes, suburban residential acreages, rural home sites or farm home sites
and yard plots whose primary function is for residential or recreational purposes even
though such properties may produce or maintain some plants or animals.


        Appeal from Board of Tax Appeals. Opinion filed February 12, 2016. Affirmed.


        Linda Terrill and Darcy Demetre Hill, of Property Tax Law Group, LLC, of Leawood, for
appellants Vearl W. Jones, Jr., and Linda J. Jones.


        Ryan Carpenter, assistant counsel, for appellee Unified Government of Wyandotte
County/Kansas City, Kansas.


Before GARDNER, P.J., HILL and POWELL, JJ.


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        POWELL, J.: Vearl W. Jones, Jr, and Linda J. Jones are the owners of real property
in Wyandotte County, Kansas, that contains a house and 10.4 acres of surrounding land.
Beginning in 2011, the Joneses grew hay for sale on 9 acres of the property. However,
the County classified the property as residential use for both the 2012 and 2013 tax years.
Both years, the Joneses unsuccessfully appealed this classification to the small claims
division of the Court of Tax Appeals, now the Board of Tax Appeals (BOTA), seeking to
have the property designated as agricultural which would trigger a lower ad valorem tax
rate.


        The Joneses then appealed the classification for the 2012 and 2013 tax years to
BOTA, arguing that the subject property, excluding the portion containing the house, was
land devoted to agricultural use and should be classified as such. BOTA sustained the
subject property's original classification use as residential. The Joneses now appeal to this
court, contending that the portion of their property that does not contain the house is land
devoted to agricultural use. Because we agree with BOTA that the Joneses' property is
suburban residential acreage primarily used for residential purposes, we affirm.


                           FACTUAL AND PROCEDURAL BACKGROUND


        BOTA accurately recited the facts as follows (Note: The Joneses are referred to as
Taxpayer.):


                "The Taxpayer acquired the subject property in 1994. At the time of acquisition,
        the property was used for agricultural purposes and no residence was present on the
        property. The subject residence was constructed on the property in 1995.


                "In December 2011, the Taxpayer notified Natalie Koberlein of the Wyandotte
        County Appraiser's office that 9 acres of the subject property was over-seeded, fertilized,
        and the resulting hay crop was pre-sold. The Taxpayer does not claim the income derived
        from sale of the hay crop on [their] federal income tax return. Koberlein initially

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       represented to the Taxpayer that the subject property's classification would be changed,
       yet later submitted that she did not have authority to change the property's classification
       for tax year 2012 and directed the Taxpayer to contact Ryan Carpenter, Assistant
       Wyandotte County Counselor. The Taxpayer further noted that there were vacant parcels
       in the subject area that were hayed that had been classified as agricultural use land by the
       County.


                 "Eugene Bryan, County Appraiser, testified that he has observed hay bales on the
       subject property, yet he determined that the mere presence of hay bales is not sufficient to
       allow property to qualify for the agricultural use classification. Bryan testified that the
       subject property is suburban residential acreage as described in K.S.A. 79-1476;
       therefore, it does not qualify for agricultural use classification. Bryan, further, submitted
       that Koberlein made statements beyond her authority when she represented to the
       Taxpayer that they may qualify for the agricultural use classification.


                 "The County determined that the subject property did not qualify for agricultural
       classification and did not change the property's classification to agricultural use property
       for either tax year at issue."


       The Joneses appealed to BOTA, arguing only that the classification of the subject
property for the 2012 and 2013 tax years was incorrect. BOTA sustained the subject
property's classification as residential use, determining that the land's primary function
was for residential purposes as described in K.S.A. 2013 Supp. 79-1476. As such, the
subject property was excluded from land devoted to agricultural use.


       The Joneses submitted a timely petition for judicial review.


                  DID BOTA CORRECTLY CLASSIFY THE SUBJECT PROPERTY?


       On appeal, the Joneses submit two arguments: (1) BOTA misinterpreted K.S.A.
2013 Supp. 79-1476 in determining that the subject property's primary function was
residential and not allowing a mixed-use classification; and (2) BOTA lacked substantial
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competent evidence supporting its determination that the subject property's primary
function was residential.


       We review a decision from BOTA in the manner prescribed by the Kansas Judicial
Review Act, K.S.A. 77-601 et seq. We may grant relief pursuant to K.S.A. 2015 Supp.
77-621, the pertinent portions of which provide:


               "(c) The court shall grant relief only if it determines any one or more of the
       following:
               ....
               "(4) the agency has erroneously interpreted or applied the law;
               ....
               "(7) the agency action is based on a determination of fact, made or implied by the
       agency, 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, which includes the agency
       record for judicial review, supplemented by any additional evidence received by the court
       under this act; or
               "(8) the agency action is otherwise unreasonable, arbitrary or capricious."


       We do not extend deference to an agency's statutory interpretation and, instead,
review such questions de novo. See Douglas v. Ad Astra Information Systems, 296 Kan.
552, 559, 293 P.3d 723 (2013); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039,
1044, 271 P.3d 732 (2012). In matters 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). "Statutes that impose the tax are to be
strictly construed in favor of the taxpayer." In re Tax Appeal of Harbour Brothers Constr.
Co., 256 Kan. 216, 223, 883 P.2d 1194 (1994).




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       With regard to BOTA's factual findings, our duty is to determine whether the
evidence supporting the agency's factual findings is substantial when considered in light
of the record as a whole. K.S.A. 2015 Supp. 77-621(c)(7); Sierra Club v. Moser, 298
Kan. 22, 62, 310 P.3d 360 (2013). The term "in light of the record as a whole" is
statutorily defined to include the evidence both supporting and detracting from an
agency's finding. K.S.A. 2015 Supp. 77-621(d). In reviewing the evidence in light of the
record as a whole, we neither reweigh the evidence nor engage in de novo review. K.S.A.
2015 Supp. 77-621(d).


A.     Did BOTA misinterpret K.S.A. 2013 Supp. 79-1476 in determining the subject
property's appropriate classification?


       The Joneses argue BOTA misinterpreted K.S.A. 2013 Supp. 79-1476 by not
allowing a mixed-use classification of residential and agricultural. K.S.A. 2013 Supp. 79-
1476 provides, in pertinent part:


       "Land devoted to agricultural use shall not include those lands which are used for
       recreational purposes, . . . suburban residential acreages, rural home sites or farm home
       sites and yard plots whose primary function is for residential or recreational purposes
       even though such properties may produce or maintain some of those plants or animals
       listed in the foregoing definition." (Emphasis added.)


       In short, K.S.A. 2013 Supp. 79-1476 serves to exclude from agricultural
classification land primarily used for residential purposes regardless of whether such land
has a subordinate agricultural use. See Board of Johnson County Comm'rs v. Smith, 18
Kan. App. 2d 662, 669, 857 P.2d 1386 (1993).


       The Joneses, however, derive their argument from Directive #92-022, promulgated
by the Kansas Department of Revenue, Division of Property Valuation and approved on
November 3, 1992, which states:
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                "Many suburban residential acreages and rural homesites encompass anywhere
       from two to twenty acres, and in some cases even more. Although the house, garage and
       surrounding landscaped lawn may only occupy one acre, the remaining acreage should
       not be valued as agricultural land if the primary function is for residential or recreational
       purposes. . . .
                ....
                "Each tract must be considered individually and delineated as to what is actually
       being used. While an appraiser may choose to include septic drain fields, zoning factors,
       etc., in the homesite delineation which might infer a minimum size, there can not be a
       standard size established for the homesite. Each site must be delineated on the map and
       the area calculated to the nearest one-tenth of an acre."


       Focusing entirely on the portion of Directive #92-022 that provides: "Each tract
must be considered individually and delineated as to what is actually being used," the
Joneses contend BOTA was required to grant a mixed-use classification for the subject
property. BOTA's failure to classify the portion of the subject property used for hay
production was, according to the Joneses, an error of law.


       We disagree because "in cases involving statutory construction, 'courts are not
permitted to consider only a certain isolated part or parts of an act, but are required to
consider and construe together all parts thereof in pari materia.'" Board of Miami County
Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 323, 255 P.3d 1186
(2011) (quoting Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2,
544 P.2d 791 [1975]). The Joneses' argument outright ignores the remaining language in
Directive #92-022 that clearly prohibits property from maintaining an agricultural
classification where the primary use of the land is residential: "Although the house,
garage and surrounding landscaped lawn may only occupy one acre, the remaining
acreage should not be valued as agricultural land if the primary function is for residential
or recreational purposes."



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       Moreover, even if we were to agree with the Joneses' construction of Directive
#92-022 as allowing for a mixed-use residential and agricultural classification, as we
have already suggested, it is prohibited by the statute. K.S.A. 2013 Supp. 79-1476
specifically excludes from an agricultural classification suburban residential acreages or
rural home sites, either of which the Joneses' property could be accurately described,
which have as their primary function a residential purpose. Because a directive cannot
trump a statute, the Joneses' argument fails. See NCAA v. Kansas Dept. of Revenue, 245
Kan. 553, 557, 781 P.2d 726 (1989) (quoting Director of Taxation v. Kansas Krude Oil
Reclaiming Co., 236 Kan. 450, Syl. ¶ 2, 691 P.2d 1303 [1984] [agency may not "modify,
alter, or enlarge the legislative act which is being administered"]).


       Both K.S.A. 2013 Supp. 79-1476 and Directive #92-022 clearly state that land
primarily used for residential purposes cannot carry an agricultural classification.
Therefore, we must reject the Joneses' mixed-use argument.


B.     Was BOTA's determination that the subject land's primary use was residential
supported by substantial competent evidence?


       Next, the Joneses contend that there is no evidence in the record supporting
BOTA's decision that the subject property's primary use was residential. Under an
apparent assumption that the subject property was eligible for a mixed-use classification,
the Joneses assert there is no factual support that the 9 acres used for growing hay is
primarily used for residential purposes.


       BOTA assessed the entire subject property together, however, and the facts
supporting its conclusion are ample: (1) Linda Jones testified that the primary use of the
property was as a home; (2) the Joneses bought the subject property in 1994 and
completed construction of the house in 1995 yet only began using a portion of the subject
property for hay production in 2011; (3) the subject property contains a pond, driveway,

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and detached garage, all of which benefit the home and cannot be used for agricultural
purposes; and (4) Wyandotte County, the location of the subject property, is one of the
three most populated counties in Kansas.


      In light of the record as a whole, there was substantial and competent evidence
upon which BOTA could rule that the primary use of the subject property was residential.


      Affirmed.




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