                                       No. 110,136

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

     In the Matter of the Equalization Appeal of TALLGRASS PRAIRIE HOLDINGS, LLC,
                     for the Year 2011 in SHAWNEE COUNTY, KANSAS.


                             SYLLABUS BY THE COURT

1.
       K.S.A. 2013 Supp. 79-1460(a)(2) provides the county appraiser shall notify each
taxpayer annually of the classification and appraised fair market value of the taxpayer's
property. A Kansas Court of Tax Appeals (COTA) ruling that reduces the fair market
value for a property pursuant to a final determination of the valuation appeals process
causes the next year's fair market value to be lowered equal to the COTA-determined fair
market value unless there are substantial and compelling reasons to increase the fair
market value in that next year.


2.
       Pursuant to K.S.A. 2013 Supp. 79-1460(a)(2), when multiple-year tax appeals are
pending and the taxpayer obtains a reduced fair market valuation from COTA, the
taxpayer cannot rollover the reduced fair market value to any tax year other than the next
tax year. The next tax year means only the tax year immediately following the COTA-
determined reduced fair market valuation.


3.
       A reduction in fair market value made pursuant to K.S.A. 2013 Supp. 79-
1460(a)(2) for the tax year following a successful taxpayer appeal is not a reduction due
to a final determination made pursuant to the valuation appeals process for that tax year.




                                             1
4.
        Judicial review is governed by the Kansas Judicial Review Act, K.S.A. 77-601 et
seq., and the scope of review is controlled by K.S.A. 2013 Supp. 77-621.


5.
        In Kansas, the Uniform Standards of Professional Appraisal Practice (USPAP)
(1992) Standard 6 governs mass appraisals.


        Appeal from Kansas Court of Tax Appeals. Opinion filed August 15, 2014. Affirmed in part,
reversed in part, and remanded with directions.


        Carol B. Bonebrake, of Cosgrove, Webb & Oman, of Topeka, for appellant Tallgrass Prairie
Holdings, LLC.


        Ashley R. Heidrick, assistant county counselor, and Richard V. Eckert, county counselor, for
appellees Board of Shawnee County Commissioners and Shawnee County Appraiser.


Before HILL, P. J., SCHROEDER, J., and HEBERT, S.J.


        SCHROEDER, J.: Tallgrass Prairie Holdings, LLC (Tallgrass) appeals the Kansas
Court of Tax Appeals' (COTA) 2011 valuation of Tallgrass' multitenant office complex
(the Property) built in 2002. The Property has a prime location, and the building is also
equipped with a large surgical suite leased by one of the tenants. Tallgrass seeks a fair
and reasonable valuation for the property based on current market values in compliance
with K.S.A. 2013 Supp. 79-1460. Originally, Tallgrass' appeal to COTA challenged the
fair market valuation of its Property for tax years 2010 and 2011. While both appeals
were pending before COTA, the parties mutually agreed to dismiss the 2010 tax appeal
after the decision of the 2009 tax year appeal was rendered by COTA. As more fully set
out in this opinion, COTA's decision establishing the fair market value of the Property for
tax year 2011 is affirmed in part, reversed in part, and remanded with directions.

                                                    2
                                            FACTS


       The record is extensive; to put some order to it all, we will set out each step of the
property valuation process resulting in this appeal.


Property


       The Property is a large three-story building in northwest Topeka. A related, but
separate, Tallgrass L.L.C. operates the surgical suite on the first floor. Another related
Tallgrass L.L.C. operates medical offices on the first and second floors, with other
tenants renting space on the first and third floors.


Property Tax History


       Tallgrass has challenged Shawnee County's tax valuation of the property every
year since 2005. For 2010 and 2011, the County used the same mass appraisal
methodology for both years and appraised the Property at $10,870,383. As a result of
Tallgrass' appeal to COTA for the 2009 tax year, COTA determined a 2009 market value
of $8 million. With receipt of COTA's decision for 2009, the parties agreed the 2009
valuation should control the market value of the Property for tax year 2010 pursuant to
the provision of K.S.A. 2013 Supp. 79-1460(a)(2), and the parties jointly dismissed the
2010 tax year appeal.


2011 Tax Assessment and Informal Meeting


       After the County provided its original 2011 appraisal, the County adjusted its
income approach and lowered its appraisal from $10,870,383 to $10,711,100 at the
informal meeting. Tallgrass appealed the 2011 valuation notification of informal meeting
results to COTA.

                                               3
       The County filed a motion for leave to issue discovery out of time and to order the
taxpayer to allow an inspection of the Property. Over Tallgrass' objection, COTA granted
the motion in part, allowing a new county appraiser to inspect the property. However,
COTA limited the appraiser to a rebuttal witness and the appraisal as a rebuttal exhibit
only. Additionally, COTA denied the County the right to change the value or
classification for the Property based on the second appraisal. Both parties petitioned
COTA to reconsider, but COTA denied their motions.


COTA Hearing


       The parties presented their respective analyses, appraisals, and arguments to
COTA. COTA was presented with three different appraisals to consider. David Meyer
initially valued the Property for the County. John Dillon appraised the Property for
Tallgrass. The County presented Timothy Keller's appraisal of the Property through his
rebuttal testimony. We will discuss each in turn.


       Meyer Analysis


       The County relied on the testimony of David Meyer, a commercial real property
specialist from the Shawnee County Appraiser's Office. Meyer was designated a
registered mass appraiser by the State of Kansas Property Valuation Division (PVD), had
been employed by the County Appraiser's Office for 10 years, and appraised 600 offices
and 100 medical properties on an annual basis. However, Meyer was not a licensed
general appraiser and had never done an appraisal that complied with the Uniform
Standards of Professional Appraisal Practice (USPAP) (1992) Standards 1 and 2. Meyer
did claim his appraisal was in compliance with USPAP Standard 6 and was a mass
appraisal rather than a single appraisal.




                                             4
       Meyer testified the Property was in a very good location in Topeka and considered
the Property in a prime, investment Class A+ location.


       Meyer's initial valuation of the Property for tax year 2011 was $10,711,100.
Before COTA, he lowered the value of the Property to $9,768,500. Meyer claimed the
difference in recommended value stemmed from a reduced rental rate for the medical
office and surgical center space in the Property.


       Meyer used the usable square footage of the Property for the income approach
calculation in his appraisal. Meyer defined usable square footage as the floor space of the
Property, minus vertical penetrations such as stairwells, elevators, and common areas.
For the sales approach, he used the net rentable square footage, which did include the
common areas. To determine fair market value, Meyer considered what the Property was
worth on the open market. Meyer considered the Property's current use to be its highest
and best use.


       Dillon Analysis


       Tallgrass' expert appraiser was John Dillon, a licensed general real estate appraiser
who had been doing appraisals in the Kansas City area since the early 1980's. Dillon
appraised all types of property but mainly worked with commercial property. Dillon first
appraised the Property for Tallgrass in 2006 and had prepared other appraisals on the
Property. Dillon was tasked with estimating the market value of the Property for
presentation before COTA. Dillon claimed he quantified the physical factors and market
data for the Property and believed the market for the Property did not extend beyond the
immediate Topeka market. Dillon considered the Property a second tier property, not a
Class A or Class A+ location.




                                             5
       Dillon's analysis was aimed at finding market value, as defined by the Federal
Register and USPAP. However, Dillon admitted that this definition contained some
minor differences from the Kansas definition of fair market value. Dillon based his
analysis on the rentable area of the Property, or the total square footage of the Property,
minus vertical penetrations such as stairwells or elevators, but including common areas.
Dillon believed this calculation to be a market-wide method of establishing how rental
rates per square foot for office and medical office space are established. Ultimately,
Dillon determined the valuation for the Property was $7.6 million.


       Keller Analysis


       The County presented Timothy Keller, a state licensed certified general real estate
appraiser with around 20 years of appraisal experience, as a rebuttal witness. Keller
appraised all types of commercial and residential properties, including offices and
medical offices, mainly in the Topeka, Lawrence, and Kansas City areas.


       Keller testified the County asked him to perform an appraisal of the Property to
determine the market value of the Property. Keller's appraisal was admitted, and he
defined market value in accordance with Kansas statutes. Keller labeled the Property as a
Class A property, located in a competitive neighborhood and market location. Keller
claimed the highest and best use for the Property would be its current use.


       Like the other appraisers, Keller used cost, sales, and income approaches to
establish the value of the Property. Keller appraised the Property at $10,250,000.




                                              6
COTA Ruling


       COTA stated the County determined the Property contained 12,139 square feet of
office space, 50,031 square feet of medical office space, and 12,533 feet of surgical
space, for a total usable square footage of 74,730.


       COTA first addressed Tallgrass' claim that the County failed to comply with
K.S.A. 2013 Supp. 79-1460(a)(2). Tallgrass argued the Property's 2010 tax valuation was
reduced pursuant to the valuation appeals process; therefore, under the statute, the County
was required to present substantial and compelling reason for the Property's increased
2011 tax valuation. Tallgrass claimed the County failed to meet that burden and that the
increased valuation was therefore inappropriate.


       COTA agreed that under K.S.A. 2013 Supp. 79-1460(a)(2) the County would have
been prevented from increasing the Property's tax valuation following the 2010 reduction
if the 2010 reduction had been "due to a final determination made pursuant to the
valuation appeals process." However, the County reduced the Property's 2010 appraised
value based on the results of the 2009 tax appeal, and the 2010 appeal was never
submitted to COTA. Thus, COTA ruled the Property's 2010 tax valuation was not
"'reduced due to a final determination pursuant to the valuation appeals process'" and
therefore the requirements of K.S.A. 2013 Supp. 79-1460(a)(2) were inapplicable to the
Property's 2011 tax valuation.


       COTA next discussed the law governing ad valorem taxes in Kansas. Under the
Kansas Constitution, Article 11, § 1(a) and K.S.A. 79-101, all real and personal property
in Kansas is subject to taxation on a uniform and equal basis unless specifically
exempted. COTA classified the Property as commercial use property; and pursuant to
K.S.A. 2013 Supp. 79-1609, COTA determined the County had the "duty to initiate the
production of evidence to demonstrate, by a preponderance of the evidence, the validity

                                             7
and correctness" of a fair market value determination. Under the same statute, COTA
noted no presumption exists in favor of the county appraisal with respect to the validity
and correctness of such a determination.


       Tallgrass questioned whether the County's evidence complied with USPAP,
particularly regarding scope-of-work requirements. COTA noted all county appraisers
were required to perform appraisals in conformity with USPAP Standard 6, which
governs the development and reporting of mass appraisals as the approved method for ad
valorem taxation in Kansas. COTA stated its duty was to render decisions based on
"substantial competent evidence in light of the record as a whole," pursuant to K.S.A.
2013 Supp. 77-621(c).


       Here, COTA determined Meyer provided "credible testimony" regarding the
characteristics and investment class of the Property and confirmed the County considered
all factors listed in K.S.A. 2013 Supp. 79-503a in arriving at its valuation. COTA also
held Meyer relied on a computer-assisted mass appraisal report with supporting
documentation in reaching his valuation. COTA therefore determined there was "no
evidence in the record" that the County performed a single-property appraisal, as
contended by Tallgrass. Thus, COTA held the County's presentation provided
"substantial competent evidence support for valuation."


       In determining the valuation of the Property, COTA relied heavily on the income
approach because the Property was an income producing property, both parties relied on
the income approach, and COTA determined the parties' various income approaches
provided the best indicia of the Property's value. COTA found the County's assessment of
potential gross income to be supported by comparable market rental data after
adjustments for escrow rent. Because Dillon's appraisal failed to make escrow rent
adjustments, COTA found his rental rate to be "significantly understated."


                                             8
       However, COTA found both Meyer's and Dillon's expense rate determinations to
be in error. The County failed to give adequate consideration to the Property's actual
expenses, while Tallgrass failed to determine if the Property's actual expenses were
consistent with the market. According to COTA, an appraiser should estimate the income
stream that would be produced in the highest and best use under "typical management"
because the property, not the current management, is being valued. Thus, COTA
determined Keller's expense rate determination, which "included consideration of the
subject property's actual operating expenses based on a review of expenses from
comparable area properties" to be most reflective of the market.


       COTA found the County's determination that the Property was an A+ investment
class for the Topeka market to be supported by the age of the Property, the quality of
finish, and its location in Topeka's premier commercial area. COTA therefore rejected
Dillon's contention the Property was a second tier property. COTA further held Dillon's
capitalization rate determination, when "properly arrayed for comparability," supported a
9% capitalization rate.


       Based on these findings, COTA concluded an income approach utilizing the
County's income approach inputs, including rental, vacancy, collection, and capitalization
rates, coupled with Keller's operating expense rate, produced the best indicator of fair
market value for the Property. Thus, after implementing this change to the County's
income approach, COTA reached a final appraised fair market value of $9,431,560 for
tax year 2011.


       Tallgrass filed a motion asking COTA to reconsider, and COTA denied the
motion. Tallgrass timely appeals.




                                             9
                                               ANALYSIS


       Tallgrass raises five issues on appeal. First, Tallgrass claims COTA erred in
interpreting K.S.A. 2013 Supp. 79-1460(a). Second, Tallgrass argues COTA erred in
adopting the County's valuation by implicitly finding the County did not have the burden
of proof. Third, Tallgrass states that by relying on the County's methodology, COTA
produced a value contrary to USPAP Standards and Kansas law. Fourth, Tallgrass claims
COTA erred in making findings of fact that are not supported by substantial evidence.
Finally, Tallgrass argues COTA acted in an arbitrary, capricious, and unreasonable
manner when it failed to decide whether Tallgrass had been subject to intentional and
systematic excessive valuations. As reflected below, we find COTA should be affirmed
in part, reversed in part, and remanded with directions.


Kansas Judicial Review Act


       Tallgrass' appeal of the COTA decision is governed on review by the Kansas
Judicial Review Act (KJRA), K.S.A. 77-601 et seq. An agency decision is in error if:


       "(i) The agency has erroneously interpreted or applied the law, K.S.A. 2009 Supp. 77-
       621(c)(4); (ii) the agency has engaged in an unlawful procedure or has failed to follow
       prescribed procedure, K.S.A. 2009 Supp. 77-621(c)(5); (iii) the agency action is based on
       a determination of fact, made or implied by the agency, that is not supported by evidence
       that is substantial when viewed in light of the record as a whole, K.S.A. 2009 Supp. 77-
       621(c)(7); or (iv) the agency action is otherwise unreasonable, arbitrary, or capricious,
       K.S.A. 2009 Supp. 77-621(c)(8)." In re Tax Appeal of Brocato, 46 Kan. App. 2d 722,
       Syl. ¶ 2, 277 P.3d 1135 (2011).


       The KJRA defines the scope of judicial review of state agency actions unless the
agency is specifically exempted from application of the statute. K.S.A. 2013 Supp. 77-
603(a); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1043, 271 P.3d 732

                                                   10
(2012). On appeal, the burden of proving the invalidity of the agency action rests on the
party asserting such invalidity. K.S.A. 2013 Supp. 77-621(a)(1). Specific standards of
review under the KJRA for each of Tallgrass' claims will be discussed as the issue is
analyzed.


Did COTA Err in Interpreting K.S.A. 2013 Supp. 79-1460(a)(2)?


       The County initially provided identical appraisal values for the Property for tax
years 2010 and 2011. With receipt of COTA's 2009 tax ruling while the 2010 and 2011
appeals were pending, the County lowered the 2010 value equal to COTA's 2009 value of
the Property at $8,000,000. Tallgrass now argues application of K.S.A. 2013 Supp. 79-
1460(a)(2) requires COTA also to value the Property for 2011 at $8,000,000. COTA
denied Tallgrass' request. Tallgrass claims COTA misinterpreted the statute in so ruling.
We find COTA correctly applied K.S.A. 2013 Supp. 79-1460(a)(2).


       Standard of Review


       Interpretation of a statute is a question of law over which appellate courts exercise
unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
When a statute is plain and unambiguous, an appellate court does not speculate as to the
legislative intent behind it and will not read into the statute something that is not readily
found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). The
courts must construe statutes to avoid unreasonable or absurd results and presume the
legislature does not intend to enact meaningless legislation. Northern Natural Gas Co. v.
ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct.
162 (2013).


       Statutes imposing a tax must be interpreted strictly in favor of the taxpayer.
However, tax exemption statutes are "interpreted strictly in favor of imposing the tax and

                                              11
against allowing an exemption for one who does not clearly qualify for the exemption."
In re LaFarge Midwest, 293 Kan. at 1045.


       The Kansas Supreme Court no longer extends deference to an agency's statutory
interpretation. 293 Kan. at 1044; Hill v. Kansas Dept. of Labor, 292 Kan. 17, 21, 248
P.3d 1287 (2011) (noting that the doctrine of operative construction has lost favor). Thus,
we will proceed with no deference to COTA's interpretation of K.S.A. 2013 Supp. 79-
1460(a)(2).


       "'In the absence of valid statutory authority, an administrative agency may not,
under the guise of a regulation or order, substitute its judgment for that of the legislature.
It may not . . . modify, alter, or enlarge the legislative act which is being administered.'"
NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989).


       Application of K.S.A. 2013 Supp. 79-1460(a)(2)


       The statute provides in relevant part:


               "(a) The county appraiser shall notify each taxpayer in the county annually on or
       before March 1 for real property and May 1 for personal property, by mail directed to the
       taxpayer's last known address, of the classification and appraised valuation of the
       taxpayer's property, except that, the valuation for all real property shall not be increased
       unless: . . . (2) for the taxable year next following the taxable year that the valuation for
       real property has been reduced due to a final determination made pursuant to the
       valuation appeals process, documented substantial and compelling reasons exist therefor
       and are provided by the county appraiser."


       The County admitted to using and rolling over its 2010 tax year valuation of
$10,870,383 to tax year 2011. Tallgrass argues K.S.A. 79-501 and K.S.A. 2013 Supp. 79-
503a dictate the County is required to annually appraise real property at its fair market

                                                     12
value, and the County's identical valuations in 2010 and 2011 demonstrated nothing in
the market required a different value for tax years 2010 and 2011. Thus, Tallgrass argues
when the County lowered the Property's 2010 valuation to $8,000,000 based on COTA's
2009 tax year ruling, the County needed to offer evidence to demonstrate a change in
market conditions to justify an increased 2011 tax valuation. Tallgrass claims the County
failed to provide any evidence to support such an increase in valuation from tax year
2010 to 2011, thus violating K.S.A. 2013 Supp. 79-1460(a)(1) and (a)(2).


       Tallgrass notes K.S.A. 2013 Supp. 79-1460(a)(2) imposes additional requirements
on a county before it increases the valuation of real property following a taxable year
where the valuation was reduced due to a final determination made pursuant to the
valuation appeals process. Here, Tallgrass claims the County assigned the same initial
values to the Property for 2010 and 2011 resulting in Tallgrass' appealing both years' fair
market value. While the appeal for both years was pending before COTA, the parties
agreed to a reduced 2010 valuation based on COTA's decision establishing the 2009
valuation. At the subsequent COTA hearing for tax year 2011, Tallgrass argued to COTA
that the County failed to provide substantial and compelling reasons why its
recommended 2011 valuation was higher than the reduced 2010 valuation. COTA
disagreed, stating K.S.A. 2013 Supp. 79-1460(a)(2) was inapplicable because "the 2010
appeal was never submitted to this Court for adjudication."


       Tallgrass now claims COTA erred in so ruling because nothing in K.S.A. 2013
Supp. 79-1460(a)(2) indicates that the statute is only applicable if the relief in the prior
year resulted from a COTA adjudication. Tallgrass argues the statute is silent as to who
must make the final value determination in the prior year. Tallgrass argues the legislature
failed to specify at which level in the valuation process the relief must occur and this
court must interpret K.S.A. 2013 Supp. 79-1460(a)(2) such that a final valuation
determination can be made at any level of the valuation appeals process. Under Tallgrass'
interpretation, the County's reduction of the 2010 tax valuation would require the County

                                              13
to have provided substantial and compelling reasons to increase the 2011 tax valuation.
Tallgrass argues the County failed to make such a showing and therefore claims COTA
misinterpreted and misapplied both K.S.A. 2013 Supp. 79-1460(a)(1) and (a)(2).


       Another panel of this court in In re Equalization Appeal of California Crossing,
No. 106,259, 2012 WL 2620997, at *6 (Kan. App. 2012) (unpublished opinion), held that
"K.S.A. 2011 Supp. 79-1460(a)(2) requires the County appraiser to apply the same value
to a year following a successful tax appeal." (Emphasis added.) We find this
interpretation of the statute is persuasive. The County was required to lower the 2010 tax
valuation in accordance with K.S.A. 2013 Supp.79-1460(a)(2). It does not matter how the
parties dealt with the procedure of reducing the value for 2010, as the County was
statutorily required to reduce the value equal to the 2009 value. By its plain language, the
statute applies only to the next tax year, not year after year, if an appeal of subsequent tax
years is pending. Tallgrass' argument is counterintuitive to the statutory language.


       This issue arose with the passage of time given appeals from three tax years were
all pending when the first year (2009) was resolved. We hold the COTA-determined 2009
reduced fair market valuation only applies to the next tax year, i.e., tax year 2010. Tax
year 2011 becomes a new independent tax valuation event. "Next" is defined as:
"Immediately following, as in time, order, or sequence." The American Heritage
Dictionary 1189 (5th ed. 2011). By the very definition of "next" year, 2011 is not the next
tax year after the tax year 2009 valuation was determined.


       In this context, COTA properly found the 2010 tax valuation was subject to
application of K.S.A. 2013 Supp. 79-1460(a)(2) and not by "a final determination made
pursuant to the valuation appeals process." When COTA established the 2009 market
value (which was the applicable fair valuation determination), that value affected 2010's
fair market valuation and not 2011's fair market valuation for the Property.


                                             14
Did COTA Err in Adopting the County's Valuation by Implicitly Finding the County Did
Not Have the Burden of Proof?


       In addition to the requirements of K.S.A. 2013 Supp. 79-1460(a), Tallgrass argues
the County had the burden of demonstrating the validity and correctness of its
determination of value pursuant to K.S.A. 2013 Supp. 79-1609. Tallgrass claims the
County failed to sustain that burden, as evidenced by COTA's finding that the County's
expense rate was in error. In parallel arguments, Tallgrass claims COTA's adoption of the
County's valuation methodology and inputs were not based on substantial competent
evidence and as a result COTA improperly shifted the burden of proof by presuming a
valuation containing an error was nevertheless valid and correct, requiring Tallgrass to
prove the valuation was not valid and correct. Thus, to determine if COTA misinterpreted
or misapplied K.S.A. 2013 Supp. 79-1609, we will also review the facts presented. As
discussed below, we find Tallgrass' argument fails.


       Standard of Review


       Interpretation of K.S.A. 2013 Supp. 79-1609 involves the same review as
discussed in the prior section, and the statute must be construed in favor of the taxpayer
without deference to the agency's interpretation. See In re LaFarge Midwest, 293 Kan. at
1044-45; Hill, 292 Kan. at 21.


       "In light of the record as a whole" is statutorily defined by K.S.A. 2013 Supp. 77-
621(d) as meaning


       "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,
       compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that


                                                      15
       supports such finding, including any determinations of veracity by the presiding officer who
       personally observed the demeanor of the witness and the agency's explanation of why the
       relevant evidence in the record supports its material findings of fact. In reviewing the
       evidence in light of the record as a whole, the court shall not reweigh the evidence or engage
       in de novo review."



       Although not statutorily defined, "substantial evidence" refers to "'evidence
possessing something of substance and relevant consequence to induce the conclusion
that the award was proper, furnishing a basis [of fact] from which the issue raised could
be easily resolved.'" Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828
(2011).


       Did COTA Misinterpret or Misapply K.S.A. 2013 Supp. 79-1609?


       To support its claim, Tallgrass points to Garvey Grain, Inc. v. MacDonald, 203
Kan. 1, 14, 453 P.2d 59 (1969), where the Kansas Supreme Court held that a county's
valuation which fails to consider all statutory factors is invalid. These statutory factors
are listed in K.S.A. 2013 Supp. 79-503a, and Tallgrass particularly notes K.S.A. 2013
Supp. 79-503a(g), which requires a county appraiser using an income approach valuation
to consider "earning capacity as indicated by lease price, by capitalization of net income
or by absorption or sell-out period." Tallgrass argues implicit in this statutory language is
the consideration of reasonable operating expenses. See In re Tax Refund Application of
Affiliated Property Services, Inc., 19 Kan. App. 2d 247, 249, 870 P.2d 1343 (1993)
(under the income approach, net income of property is determined by subtracting
reasonable operating expenses from the market rental potential of any structures on the
property). Tallgrass claims the County failed to consider Tallgrass' reasonable operating
expenses; thus, COTA misinterpreted and misapplied K.S.A. 2013 Supp.79-1609.


       Tallgrass' interpretation of COTA's ruling is inaccurate. COTA adopted Meyer's
income approach valuation for every aspect of its own valuation except expense rates.
                                                      16
COTA ruled Meyer's expense calculation failed to give adequate consideration to the
Property's actual expenses. COTA instead utilized the Keller appraisal, saying it
"included consideration of the subject property's actual operating expenses based on a
review of expenses from comparable area properties" to be most reflective of the market.
COTA properly considered operating expenses in its valuations, finding Keller's
operating expense calculations were valid by a preponderance of the evidence standard.
COTA clearly considered the operating expense analysis of all three experts. Without
reweighing the evidence, substantial evidence exists when viewed in light of the evidence
as a whole to support COTA's reliance on Keller's expense rate valuation coupled with
Meyer's income analysis to reach the fair market valuation COTA found.


       Therefore, COTA did not shift the burden; it merely relied on the expense rate
provided by Keller, the County's rebuttal expert witness, rather than either of the expense
rates provided by Meyer or Dillon. While COTA denied the County the use of Keller's
appraisal during its case-in-chief to adjust its valuation, his testimony was allowed and
relevant for rebuttal purposes. Tallgrass provides no authority why COTA could not
utilize the relevant testimony of the County's rebuttal witness. Tallgrass has failed to
meet its burden in showing how COTA improperly applied K.S.A. 2013 Supp. 79-1609.
See K.S.A. 2013 Supp. 77-621(a)(1); K.S.A. 2013 Supp 77-621(c)(4).


Did COTA's Valuation Violate USPAP Standards and Kansas Law?


       Tallgrass argues Meyer's appraisal was the result of a valuation by summation in
violation of USPAP Standards and Kansas law. Tallgrass appears to be arguing COTA
violated K.S.A. 2013 Supp. 77-621(c)(5) in doing so. Tallgrass claims Meyer's appraisal
divided the three-story building into its three component parts based on tenant use and
then added all three parts to get the final valuation. As reflected below, Tallgrass'
argument fails.


                                             17
       Standard of Review


       When determining the validity of an assessment of real property for uniformity
and equality in the distribution of taxation burdens, the essential question is whether the
standards prescribed in K.S.A. 2013 Supp. 79-503a have been considered and applied by
taxing officials. Krueger v. Board of Woodson County Comm'rs, 31 Kan. App. 2d 698,
702, 71 P.3d 1167 (2003), aff'd 277 Kan. 486, 85 P.3d 686 (2004).


       To the extent the issue involves statutory interpretation, tax exemption statutes are
interpreted strictly in favor of imposing the tax and against allowing an exemption for
one who does not clearly qualify, without deference to the agency's statutory intpretation.
See In re LaFarge Midwest, 293 Kan. at 1044-45.


       USPAP Standards


       Kansas law requires county appraisals be performed in accordance with generally
accepted appraisal standards promulgated by the appraisal standards board of the
Appraisal Foundation in effect on March 1, 1992, and consistent with the definition of
fair market value in K.S.A. 2013 Supp. 79-503a. See K.S.A. 79-504; K.S.A. 79-505;
K.S.A. 79-506. The PVD's Directive No. 92-006 further specifies that a county's
appraisal comply with the 1992 edition of USPAP, Sections 2 and 6.


       Under USPAP Standards, an appraiser should refrain "from estimating the value
of the whole by adding together the individual values of the various estates or
components." USPAP Standards Rule 1-4(e), p. 12 (1992); USPAP Standards Rule 6-
5(d), p. 33 (1992). The Comment to USPAP Standards Rule 1-4(e) indicates a summation
approach may be acceptable as long as the value of the whole is tested and supported.
"According to the rule, however, an appraiser must analyze or test the effect on value of
the assemblage of the various estates or component parts." In re Tax Appeal of Dillon

                                             18
Stores, 42 Kan. App. 2d 881, 890, 221 P.3d 598 (2009). No such language exists in the
Comment to USPAP Standards Rule 6-5(d). See USPAP Standard Rule 6-5(d),
Comment, p. 33.


       USPAP Standards have been embodied in the statutory scheme of valuation, and
COTA's failure to adhere to these standards may constitute a deviation from prescribed
procedure or an error of law. Board of Saline County Comm'rs v. Jensen, 32 Kan. App.
2d 730, Syl. ¶¶ 5-6, 88 P.3d 242, rev. denied 278 Kan. 843 (2004). Panels of this court
have found an aggregate (summation) sales comparison approach to violate USPAP. See
In re Dillon Stores, 42 Kan. App. 2d at 890-91; Jensen, 32 Kan. App. 2d at 735-36
(aggregated sales approach not permissible in any appraisal context).


       Here, the County relied on Meyer's income approach methodology, which
considered the three different ways the tenants used the Property. Meyer then applied the
relevant rental rates to the useable square footage to determine potential gross and
effective income, subtracted operating expenses, and calculated the net operating
incomes. Meyer divided the net operating income by the calculated capitalization rate to
determine the value of the Property. Tallgrass argued the County's valuation
methodology was a valuation by summation, which was a single-property appraisal that
violated USPAP Standards. COTA disagreed, holding "nothing in the record suggests
that the County's valuation is premised on an appraisal approach expressly prohibited by
USPAP." COTA subsequently reached its final valuation by utilizing Keller's expense
rate analysis with Meyer's income approach.


       Tallgrass argues COTA's ruling and failure to adhere to USPAP Standards
constitutes an error as a matter of law. While Tallgrass agrees Meyer's expense rate
analysis was mistaken, Tallgrass argues COTA erred in adopting Keller's analysis.
According to Tallgrass, Keller failed to account for property-specific expenses such as
full-time management, an integrated telephone system, two elevators, and a conference

                                            19
room when determining his expense rate. Tallgrass argues Dillon's analysis, on the other
hand, gave due consideration to property-specific expenses in determining market
expense rates for the Property.


       In fair market value cases where the mass appraisal system is used to assess the
value of real property, as it was here, Kansas law dictates that Standard 6 of the USPAP
be applied to the resulting appraisal, not Standards 1 and 2. See In re Equalization Appeal
of Johnson County Appraiser, 47 Kan. App. 2d 1074, Syl. ¶¶ 10-11, 283 P.3d 823 (2012).
Standard 6 governs mass appraisal practice and states that an appraiser must employ
"generally accepted methods and techniques necessary to produce and communicate
credible appraisals." USPAP Standard 6, p. 29.


       Additionally, we note PVD Directive No. 92-006 indicates the County is not held
to Standard 1, even though Tallgrass argues Standard 1-4(c) applies. Standard 1 applies
to single-property appraisals, not mass appraisals. Here, COTA found this was a mass
appraisal process governed by Standard 6, not Standard 1. We find it unnecessary to
discuss Standard 1 or 1-4(c) as they are separate and distinguished standards from the
mass appraisal process under Standard 6.


       Tallgrass states the value of the whole should not be estimated by adding together
individual values of component parts. Tallgrass emphasized the County's valuation
methods did just that; therefore, Tallgrass claims COTA erred in relying on the County's
methodology, as it did not comply with USPAP Standards.


       We have found two cases discussing the issue of valuation by summation with any
depth in Kansas: Jensen and In re Dillon Stores. Jensen involved the Board of Tax
Appeals' (BOTA) approval of the county conducting a separate sales comparison
approach on each fourplex built on a single parcel containing thirty 30 units, then adding
up the individual value of each fourplex to get the value of the entire parcel. The Court of

                                            20
Appeals panel rejected this assessment as being violative of USPAP Standards Rule 1-
4(e), noting that Standards Rule 6-5(d), which governs mass appraisals, also prohibits
such a valuation. The panel determined these Standard Rules furthered its conclusion that
"the practice [of aggregated sales approaches] is simply not permissible in any appraisal
context." 32 Kan. App. 2d at 736. The panel further rejected the county's argument that
BOTA referenced alternate cost and income approaches to support its finding, as the
panel emphasized BOTA's final decision relied exclusively on the sales comparison as its
best estimate of fair market value. 32 Kan. App. 2d at 736.


       Similarly, in In re Dillon Stores, a panel of this court again rejected summation
valuations. The subject property consisted of 10 separate but contiguous buildings located
on an 84-acre site. The county valued each building separately and summed the values to
reach its final valuation. The panel held there was "no question" the county's valuation
violated USPAP Standards Rule 1-4(e) because the county segmented the property,
valued each segment individually, and added the values to get the final valuation. 42 Kan.
App. 2d at 891. On appeal, the county argued it had complied with the USPAP by
assessing the value for its highest and best use, "which required an appraisal of the
property in separate parcels." The panel disagreed, pointing out that "USPAP's Statement
on Appraisal Standards No. 10 (E)(3) clearly demonstrates that highest and best use of a
property intended to be divided or subject to division may not be achieved by the
summation approach." In re Dillon Stores, 42 Kan. App. 2d at 891.


       In both In re Dillon Stores and Jensen, the properties were valued by aggregating
the values of separate structures on a large parcel of land. See In re Dillon Stores, 42
Kan. App. 2d at 883-84; Jensen, 32 Kan. App. 2d at 731-34. USPAP's Statement on
Appraisal Standards No. 10 (E)(3) (2001), which the panel in In re Dillon Stores relied
upon, warns against summation of multiple unit values in determining the value of an
entire property. USPAP Statement on Appraisals Standards No. 10(E)(3), p. 108 is now
retired and not applicable. Here, the County reached its valuation of a single, multi-tenant

                                             21
property through calculating the three different types of tenant use in the Property. The
County correctly argues the USPAP Standards and the caselaw in Kansas regarding
valuation by summation focus on the prohibition of using individual buildings as
component values. With this understanding, the USPAP standards allow an appraiser to
calculate the value of a single structure through a total valuation of the structure's
different uses.


        Here, it was not wrong to consider the different uses of a single property because
different tenant finishes result in different rental rates, costs, expenses and values. If one
considers only the cheapest rental income to determine value, then the fair market value
would be too low. Likewise, if one considered only the highest rental income to
determine value, the fair market value would be too high. There must be a balanced
valuation approach in compliance with USPAP Standard 6 for mass appraisals and that is
accomplished by looking at all the ways in which the property is used and designed to be
used.


        We find USPAP Standards Rule 6-5(d) applies only when multiple structures are
valued separately to reach an aggregate valuation of an entire property. Under this
interpretation, COTA did not err in utilizing a combination of Meyer's and Keller's
appraisals to reach a reasonable fair market value for the Property.


        Tallgrass argues a panel of this court held USPAP Standards Rule 6-5(a)(v) (1992)
provides that when "necessary for credible assignment results, the appraiser must assess
value by potential earnings, including rentals, expenses, interest rates, capitalization
rates, and vacancy data." In re Tax Appeal of Brocato, 46 Kan. App. 2d 722, 730, 277
P.3d 1135 (2011). An analysis of Brocato reveals the panel actually quoted the 2008
USPAP Standards, not the 1992 USPAP Standards. Per Kansas statute, we must apply the
1992 USPAP Standards. There is no USPAP Standard Rule 6-5(a)(v) (1992). Thus,
Tallgrass' reliance on Brocato to support property-specific expenses fails.

                                              22
         Kansas Law Standards


         This second standard requires that we consider Kansas law. Under K.S.A. 2013
Supp. 79-503a, an appraisal of real property for ad valorem tax purposes must conform to
generally accepted appraisal procedures which are consistent with the definition of fair
market value. Tallgrass argues Meyer violated this statute by relying on old leases
without adjusting the rates to current market or eliminating the cost of excess tenant
improvement. Tallgrass cites to In re Equalization Appeal of Prieb Properties, 47 Kan.
App. 2d 122, 132-33, 275 P.3d 56 (2012), where a panel of this court rejected a county's
argument that rates from a built-to-suit lease reflect market rates at any time during the
lease.


         Instead, Tallgrass argues market rent should be determined by analyzing the
current real estate market and the effective rent, which the Appraisal Institute's textbook,
The Appraisal of Real Estate, p. 454 (13th ed. 2008), defines as the rental rate after
adjusting for "free rent, excessive tenant improvements, moving allowances, lease
buyouts, cash allowances, and other leasing incentives." Because COTA adopted the
County's rental rates, Tallgrass argues COTA erroneously relied on an unadjusted and
untimely market rental rate, contrary to K.S.A. 2013 Supp. 79-503a.


         According to Tallgrass, Kansas law also prohibits a use valuation except for
agricultural land. Tallgrass supports its claim with Board of Douglas County Comm'rs v.
Cashatt, 23 Kan. App. 2d 532, 545-46, 933 P.2d 167 (1997), where a panel of this court
held that when the highest and best use of a property is commercial, COTA's valuation of
the property through its actual residential use is contrary to law. Here, Tallgrass claims
the County based its income approach on the actual use of the property, contrary to
Kansas law.




                                             23
         In Cashatt, another panel of this court concluded that residential land must be
valued at fair market value even if it resulted in some residential land being valued higher
than others due to its suitability for commercial use. Doing so would not result in unequal
or nonuniform taxation. 23 Kan. App. 2d at 545. The panel agreed with the county's
valuation of a home as a commercial property because it would be the property's highest
and best use. See 23 Kan. App. 2d at 537, 539-40. Thus, focusing only on the present use
of the property for valuation without regard for fair market value failed to account for all
the factors in K.S.A. 2013 Supp. 79-503a. See 23 Kan. App. 2d at 545. Here, each of the
relevant factors listed in K.S.A. 2013 Supp. 79-503a were considered; therefore, neither
the County nor COTA deviated from USPAP Standards or the law.


         Tallgrass claims that Meyer relied on leases that had been in place for more than
10 years is unfounded in the record. The older leases Meyer considered were owner
leases that were removed from his consideration, in keeping with COTA's 2009 order.
Meyer considered both current nonowner leases and leases on comparable properties.
Dillon's appraisal considered only property-specific lease rates and asking rates of vacant
space.


         Under Article 11, § 12 of the Kansas Constitution, agricultural property is the only
classification of property in Kansas that is given a property tax value based on the use
value. Kan. Const. art. 11, § 12; see Cashatt, 23 Kan. App. 2d at 540. "'"Use Value" can
have more than one meaning; however, it is generally conceded, as it relates to
agricultural land, that "Use Value" represents a value based on the net income that the
land is capable of producing, assuming typical management practices.'" In re Tax Protest
of Ann W. Smith Trust, 272 Kan. 1396, 1408, 39 P.3d 66 (2002). Here, there is no
evidence the County valued the Property at what it was "capable" of producing. Every
tenant rental rate was calculated and evaluated at what the County determined to be fair
market value, in keeping with the requirements of K.S.A. 2013 Supp. 79-503a. Tallgrass
fails to point to any specific lease or calculation which would be contrary to K.S.A. 2013

                                              24
Supp. 79-503a. Thus, Tallgrass has failed to meet its burden. See K.S.A. 2013 Supp. 77-
621(a)(1). COTA did not base its valuation on an unconstitutional "use value" appraisal
method, nor did it rely on untimely and unadjusted lease rates as market rates, contrary to
K.S.A. 2013 Supp. 79-503a.


Were COTA's Findings of Fact Supported by Substantial Evidence?


       COTA held an income approach using the County's inputs with Keller's operating
expense rates was the best indicator of value for the Property. Tallgrass argues COTA's
order does not contain detailed findings which explain its rationale for selecting the
County's income approach methodology and claims the County's methodology and inputs
are not supported by and are contrary to the substantial evidence of the case. We disagree
and hold that COTA's decision is supported in light of the record as a whole.


       Standard of Review


       As amended, the KJRA now defines substantial evidence "in light of the record as
a whole" to include the evidence both supporting and detracting from an agency's finding.
Courts must now determine whether the evidence supporting the agency's factual findings
is substantial when considered in light of all the evidence. K.S.A. 2013 Supp. 77-621(d);
see Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010). In reviewing
evidence in light of the record as a whole, the court shall not reweigh the evidence or
engage in de novo review. K.S.A. 2013 Supp. 77-621(d).


       Were COTA's Findings Supported by Substantial Evidence in Light of the Record
       as a Whole?


       The income capitalization approach analyzes a property's capacity to generate
future benefits and capitalizes that net income stream into an indication of present value.

                                             25
The Appraisal of Real Estate, p. 445. The accuracy of the approach depends upon the
accuracy of the inputs such as size, rental income, vacancy, collection, operating
expenses, and cap rates. Tallgrass correctly argues that if one or more inputs are
incorrectly calculated, the resulting value will be in error.


              Square feet calculation


       Tallgrass argues Meyer based his findings on incorrect assumptions of how the
tenants used the office space. COTA adopted Meyer's inputs without adjustment and
determined several tenants were using medical office space when Tallgrass claims they
should have been considered at a regular office rate. To support its claim, Tallgrass points
to the testimony of one of the owners and treasurer of Tallgrass, who gave
uncontroverted testimony demonstrating these tenants were not medical providers. Based
on this testimony, Tallgrass calculated that COTA overvalued 11,388 square feet of non-
medical space at a rental rate difference of $2 per square foot. Thus, Tallgrass urges the
panel to recalculate the net operating income with 38,643 square feet of medical office
space, 23,527 square feet of office space, and 12,533 square feet of surgical space, for a
total square footage of 74,703.


       The County concedes COTA made a mathematical error in allocating the square
footage between office, medical, and surgical space. The County agrees with Tallgrass'
adjustment to the square footage of office, medical, and surgical space except for
Tallgrass' inclusion of 122 square feet in office space for MC Concessions, which Meyer
did not use in his indication of value. Thus, the County asks the panel to remand the case
with instructions to recalculate the fair market value with the office and medical square
footage the parties now agree is correct or, in the alternative, to recalculate the fair
market value with the corrected numbers.




                                              26
       With the exception of MC Concessions, the parties agree on how the Property
rental area should be calculated and valued, pursuant to the rest of COTA's holding.
However, when reviewing the County's calculation of the square footage of the Property,
the County erred in its total calculation of square footage. The County posited the
Property had 74,703 square feet of usable space based on the rent rolls. COTA relied on
this number in its ruling, as did Tallgrass in its appellate brief. Upon further review, the
total square footage, excluding MC Concessions, only adds to 74,508 square feet.


       The parties' agreement on how the rental area should be calculated indicates
COTA made a mathematical error in failing to adjust the rental area to match its ruling,
not an error in interpreting the law itself. The parties also failed to notice that the
County's calculation of total usable area was slightly off until Tallgrass indicated as much
in its reply brief. Because both miscalculations are mathematical in nature, not indicative
of a misinterpretation of law or the evidence, we must remand back to COTA with
instructions to recalculate the 2011 valuation.


       In calculating the final valuation, Tallgrass argues MC Concessions should be
included in the total square footage calculation, as this addition makes the actual number
from the rent roll closer to what COTA relied upon. Despite Tallgrass' claim, Meyer
clearly testified MC Concessions was not considered in his appraisal. Because COTA
relied on Meyer's appraisal and we cannot reweigh evidence, MC Concessions should not
be considered in the calculation on remand.


       On remand, COTA shall utilize the lease rate previously determined for each of
the three types of spaces for office, medical, and surgical. COTA shall recalculate the
value of the property by correctly allocating the total square feet of the building of 74,508
square feet based on the agreed-upon space allocation between office, medical, and
surgical spaces. Again, the space used by MC Concessions shall not be considered, and
by our calculations, is not in the square foot total of 74,508.

                                               27
               Capitalization Rate


       Tallgrass next argues COTA erred in adopting the County's lower capitalization
rate. The capitalization rate was a battle of the experts and a question of credibility for the
factfinder, COTA. Meyer used a capitalization rate of 9%, even though the study Meyer
used showed a class A office of larger than 20,000 square feet should have a
capitalization rate of 9.25%. Further, the sales Dillon showed in his analysis
demonstrated the only tax rate in Topeka of less than 9.5% came from a dental office of
under 4,000 square feet. Tallgrass argues the larger properties had capitalization rates of
9.64% and 9.54%, the median for all of Dillon's comparison properties was 9.59%, and
the average was 9.8%. Thus, Tallgrass claims there was no evidence to support the
County's use of a 9% capitalization rate.


       When considered in light of all evidence, there is substantial evidence to support
COTA's decision to adopt the County's capitalization rate. While Tallgrass is correct that
class A investment properties over 20,000 square feet were given a capitalization rate of
9.25% in the Shawnee County benchmark study, COTA agreed with the County's
determination that the Property was an A+ investment class property. The same
benchmark study advocated a capitalization rate of 8.75% for such properties, which
Meyer increased by .25% to account for the Property's size. Further, COTA noted
Tallgrass' expert did not adjust his proposed capitalization rate for comparability; after
making such an adjustment, COTA determined Dillon's appraisal supported a 9%
capitalization rate.


       Tallgrass also fails to show any statutory or caselaw authority to support the
rejection of the County's capitalization rate. Thus, Tallgrass has again failed to meet its
burden to demonstrate the invalidity of COTA's ruling. K.S.A. 2013 Supp. 77-621(a)(1).
Because there is substantial evidence when viewed in light of the record as a whole to


                                              28
support COTA's ruling, and because this court cannot reweigh evidence, COTA did not
err in selecting a 9% capitalization rate. See K.S.A. 2013 Supp. 77-621(d).


Did COTA Act in an Arbitrary, Capricious, and Unreasonable Manner by Failing to
Decide Whether Tallgrass Had Been Subjected to Intentional and Systematic Excessive
Valuations?


       Tallgrass argues COTA failed to rule on whether the Property has been subjected
to intentional and systematic excessive valuations by the County and argues it was, in
fact, subjected to such valuations. We will first consider our standard of review and then
address Tallgrass' claims. Given the record presented below we find no arbitrary,
capricious, or unreasonable acts by COTA.


       Standard of Review


       A rebuttable presumption of validity attaches to all actions of an administrative
agency. The burden of proving arbitrary and capricious conduct lies with the party
challenging the agency's actions. Jones v. Kansas State University, 279 Kan. 128, 140,
106 P.3d 10 (2005).


       Did COTA Act Arbitrarily and Capriciously in Failing to Rule on Whether the
       County Subjected Tallgrass to Intentional and Systematic Excessive Valuations?


       Under K.S.A. 2013 Supp. 77-621(c)(3), the Court of Appeals shall grant relief if
COTA has not decided an issue requiring resolution. The arbitrary and capricious test of
K.S.A. 2013 Supp. 77-621(c)(8) relates to whether a particular action should have been
taken or was justified, such as the reasonableness of an agency's exercise of discretion in
reaching a determination or whether the agency's action was without foundation in fact.
Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 569, 232 P.3d 856 (2010).

                                            29
       Tallgrass claims COTA erred by failing to rule on its excessive valuation claim,
but Tallgrass fails to provide a record citation showing where it raised such a claim
before COTA and fails to explain how COTA erred in failing to address a claim not
raised before it. A point raised incidentally in a brief and not supported by the record is
deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645,
294 P.3d 287 (2013). Thus, Tallgrass' claim is not properly before us, and we decline to
address it. However, we may still address Tallgrass' underlying claim that COTA's
decision was unconstitutional. See K.S.A. 2013 Supp. 77-621(c)(1).


       Did the County Systematically and Intentionally Discriminate Against Tallgrass?


       Uniform and equal taxation is guaranteed under the Kansas Constitution, Article
11. Tallgrass argues this right was violated by the County through its consistent valuation
of the Property above fair market value. Tallgrass claims it was forced to expend time,
effort, and money to obtain its guaranteed right to fair market taxation guaranteed by the
Kansas Constitution, similar to the facts of the United States Supreme Court case
Allegheny Pittsburgh Coal v. Webster County, 488 U.S. 336, 109 S. Ct. 633, 102 L. Ed.
2d 688 (1989). However, Tallgrass fails to explain how the facts of Allegheny apply to
the case at hand.


       In Allegheny, the Court found systematic and intentional discrimination against a
coal company in finding the coal company's property had been assessed at 35 times that
of comparable neighboring property for 6 years with no basis for the discrepancy. 488
U.S. at 341. Additionally, the Court found no constitutional basis for challenge in the
county's approach to valuation, even when two different methods were used to assess
property in the same class. 488 U.S. at 342.


       The Court, in Allegheny, considered the valuation of the coal company
intentionally discriminatory because it was assessed at many times the rate of a

                                               30
comparable neighboring property over an extended period of time. 488 U.S. at 341-42.
Here, Tallgrass merely complains that it has been forced to challenge the County's
valuation for multiple years without demonstrating a difference between how the County
has valued the Property in relation to other comparable properties in Shawnee County.


       "Mere excessiveness of an assessment or errors in judgment or mistakes in making
unequal assessments will not invalidate an assessment, but the inequality or lack of
uniformity, if knowingly high or intentionally or fraudulently made, will entitle the
taxpayer to relief." Addington v. Board of County Commissioners, 191 Kan. 528, 532,
382 P.2d 315 (1963). Here, Tallgrass fails to show any indicia of bad faith, arbitrary, or
oppressive action by the County. When "the only evidence of excessiveness is in dispute
and evidence offered to establish a base for comparison in attempting to show lack of
uniformity is found to be inadequate and insufficient by the trier of facts, an assessment,
made within statutory confines, will not be invalidated by judicial intervention." Cities
Service Oil Co. v. Murphy, 202 Kan. 282, 294, 447 P.2d 791 (1968).


       Tallgrass does not show how its market valuation is excessive in relation to
comparable properties, and the only evidence of its excessive market valuation is in
dispute. Tallgrass has further failed to sustain its burden of proof to show that its property
has been valued excessively. See Northern Natural Gas Co. v. Dwyer, 208 Kan. 337,
368, 492 P.2d 147 (1971). Because Tallgrass' only claim of excessive valuation is based
on evidence in dispute, Tallgrass fails to demonstrate indicia of bad faith or intentional
action on the part of the County. Tallgrass has failed to sustain its burden of proof in
demonstrating that the Property has been systematically and intentionally valued
excessively.




                                             31
                                        CONCLUSION


       As the appealing party, Tallgrass had the burden to show the acts of COTA were
not supported by the record. The record reflects this is a difficult property to appraise
under a mass appraisal with the 1992 USPAP Standards. Tallgrass argued for the
application of the rollover provision of K.S.A. 2013 Supp. 79-1460(a)(2), but it failed to
recognize the rollover provision is only for that tax year and the next tax year. There is no
double-year rollover just because three tax year appeals are pending when the first appeal
is answered invoking K.S.A. 2013 Supp. 79-1460(a)(2) for the next tax year. The COTA-
determined method for the fair market valuation of the property is supported by
substantial competent evidence and will reflect a reasonable fair market value upon
recalculation pursuant to the directions in this opinion.


       Recalculating the fair market value will require COTA to utilize the total square
feet of the building at 74,508, properly allocated as the parties have agreed, between the
three uses of office, medical, and surgical space. COTA shall use the rental rates COTA
has previously determined for each type of use.


       Affirmed in part, reversed in part, and remanded with instructions to recalculate
the rental area based on the agreed-to rent rolls from the County's appraisal but excluding
MC Concessions from the total area of 74,508 square feet, basing tenant usage as the
parties have agreed, and using all other valuation inputs and expenses as originally
adopted by COTA.


       Affirmed in part, reversed in part, and remanded with directions.




                                             32
