                                                          I attest to the accuracy and
                                                           integrity of this document
                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 14:08:01 2012.08.22
       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-082

Filing Date: July 3, 2012

Docket No. 31,207

AMREP SOUTHWEST INC.,
a New Mexico corporation, and
OUTER RIM INVESTMENTS, INC.,
a New Mexico corporation,

       Protestants -Appellants,

v.

SANDOVAL COUNTY ASSESSOR,

       Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
George P. Eichwald, District Judge

Lastrapes, Spangler & Pacheco, PA
Matthew M. Spangler
Rio Rancho, NM

for Appellants

County of Sandoval
Natalia Sanchez Downey, Assistant County Attorney
Bernalillo, NM

for Appellee

                                         OPINION

SUTIN, Judge.

{1}     Appellant corporations protested the value of their property for taxation purposes for
the 2009 tax year. At the protest hearing, in conformity with its longstanding interpretation
of statutory and administrative codes, the Sandoval County Valuation Protests Board (the
Board) refused to consider Appellants’ comparable 2009 sales evidence. The Board relied

                                              1
exclusively on comparable 2008 sales. The district court affirmed the Board’s decision.
This appeal followed. We too hold that the Board did not err.

BACKGROUND

{2}     AMREP Southwest Inc. and its subsidiary, Outer Rim Investments, Inc., (AMREP)
owned approximately 19,541 parcels of vacant property in Sandoval County, New Mexico.
In March 2009, the Sandoval County Assessor delivered to AMREP notices of property
value for taxation purposes for the 2009 tax year, with taxes due in two equal installments
on November 10, 2009, and April 10, 2010. See NMSA 1978, § 7-38-38(A) (1987) (stating
the tax payment due dates). AMREP protested the valuations, claiming that the assessed
values of the properties were greater than their fair market values. See NMSA 1978, § 7-38-
25(D) (1997) (stating that “[t]he county valuation protests board shall hear and decide
protests of determinations made by county assessors”).

{3}    The protest hearing took place on August 31 through September 4, and on September
21, 2009, before the Board. AMREP presented two types of evidence in support of its
proposed valuation figures: (1) certain characteristics of the properties, including
topographical issues that affected the value of some of the vacant lots; and (2) an analysis
of comparable sales that occurred in 2009. As to the first type of evidence, the Board was
persuaded that a number of parcels had been overvalued, and the Board adjusted the
assessor’s valuation determinations accordingly. Those adjustments are not at issue in this
appeal. At issue here is the Board’s refusal to adjust valuations based on comparable 2009
sales.

{4}     In regard to its refusal to consider AMREP’s 2009 sales data to adjust the assessor’s
valuations, the Board explained that based upon its “consistent[]” and “longstanding
interpretation” of relevant statutory and administrative code provisions, properties must be
valued using only data available on January 1, 2009. The particular statutory and
administrative code provisions cited by the Board included NMSA 1978, Section 7-36-
15(B)(1) (2008). This section provides that

       the value of property for property taxation purposes shall be its market value
       as determined by application of the sales of comparable property . . . . In
       using any of the methods of valuation authorized by this subsection, the
       valuation authority:

       . . . shall apply generally accepted appraisal techniques[.]

NMSA 1978, Section 7-38-7 (1997) provides that “[a]ll property subject to valuation for
property taxation purposes shall be valued as of January 1 of each tax year[.]” Additionally,
Regulation 3.6.7.14(A) of the Administrative Code provides that the taxable status of
property is fixed as of “January 1 of each year[.]” See id. (stating that “January 1 of each


                                             2
year is the date which determines the tax status of all property subject to valuation for
property taxation purposes”).

{5}     The Board also noted “parallels contained in [Regulation 3.6.5.23(C)(2) of the
Administrative Code], which generally establishes the data . . . to be used in determining the
‘current and correct’ value of [residential] property . . . . [and] requires the use of ‘market
value of the year prior to the current tax year’ for property not recently purchased.” The
Board explained that “[t]his regulation recognizes that the best indicator of value on January
1 is the composite value for the prior year.”

{6}      Thus, the Board did not rely on the data from 2009 sales offered by AMREP. The
district court affirmed the Board’s decision. On appeal to this Court, AMREP requests that
we reverse the district court and remand the matter with instructions to vacate the Board’s
decision. AMREP asserts that the Board’s interpretation of its governing statutes and
administrative code provisions is contrary to law and that the Board acted arbitrarily and
denied it due process because the Board failed to consider the comparable 2009 sales data.

DISCUSSION

{7}    As did the district court, we review the whole record to determine whether the
Board’s decision was “arbitrary, capricious, or an abuse of discretion; not supported by
substantial evidence in the record; or, otherwise not in accordance with law.” Rio Grande
Chapter of Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61
P.3d 806; see Rule 1-074(R) NMRA. Additionally, we review de novo the legal question
of whether the Board misinterpreted and misapplied its statutory and administrative
governing provisions. See Lobato v. State Env’t Dep’t, 2012-NMSC-002, ¶ 6, 267 P.3d 65.
Likewise, we review de novo the constitutional question of whether AMREP was deprived
of procedural due process. Albuquerque Bernalillo Cnty. Water Util. Auth. v. N.M. Pub.
Regulation Comm’n, 2010-NMSC-013, ¶ 19, 148 N.M. 21, 229 P.3d 494.

{8}     AMREP’s contentions of error derive from the premise that the New Mexico
Property Tax Code, NMSA 1978, §§ 7-35-1 to -38-93 (1973, as amended through 2012),
does not expressly require that the comparable sales used for property valuations can only
consist of data known as of January 1 of the tax year. Thus, according to AMREP, the
Board’s “longstanding interpretation” of Section 7-38-7 and related administrative code
provisions to mean that properties must be valued using only sales available on January 1
was contrary to law and was arbitrary. AMREP supports its position by arguing that
“generally accepted appraisal techniques” required the use of relevant post-January 1 sales
in making a valuation determination.

{9}      We are guided by three rules of statutory construction. Smith v. Bernalillo Cnty.,
2005-NMSC-012, ¶ 18, 137 N.M. 280, 110 P.3d 496. First, we look to the plain language
of a statute as a primary indicator of legislative intent. Id. Second, provided that the agency
has not misapplied or failed to abide by its governing provisions, we “give persuasive weight

                                              3
to long-standing administrative constructions of statutes by the agency charged with
administering them.” Id. (internal quotation marks and citation omitted); see State ex rel.
Castillo Corp. v. N.M. State Tax Comm’n, 79 N.M. 357, 360, 362, 443 P.2d 850, 853, 855
(1968) (stating that the appellate courts will not give persuasive weight to an agency’s
longstanding misapplication or misinterpretation of law). And third, so as to give effect to
all relevant provisions, they are read together. Smith, 2005-NMSC-012, ¶ 18. The rules of
statutory construction also apply to interpreting sections of the administrative code. PC
Carter Co. v. Miller, 2011-NMCA-052, ¶ 11, 149 N.M. 660, 253 P.3d 950.

{10} Neither party argues that the applicable statutes or administrative code provisions are
ambiguous. We therefore will not address any question of ambiguity. The parties simply
interpret what they apparently believe is plain language, either, as the Board contends,
unaffected by Section 7-36-15(B)(1) or, as AMREP contends, to be read together with that
section. The Board interprets “as of January 1” to mean “available” as of January 1,
allowing no consideration of tax-year sales in valuation analysis. AMREP interprets “as of
January 1” to mean “accurate” as of January 1, allowing consideration of relevant tax-year
sales. Contrary to AMREP’s due process argument that the Board refused to receive the
evidence of comparable 2009 sales, the Board received the evidence but gave it no weight
whatsoever given the Board’s restrictive view of Section 7-38-7.

{11} AMREP argues that the 2009 sales were obviously relevant on the question of
property values as of January 1, 2009, and that use of relevant evidence of that value
comported with the requirement that the assessor employ generally accepted appraisal
techniques. AMREP’s expert appraiser testified that with the major decline in the national
economy that occurred in the third quarter of 2008, insufficient sales occurred leading up to
January 1, 2009, from which AMREP could reasonably calculate the value estimates. This
lack of adequate data from late 2008 resulted in their attempt to use 2009 sales to establish
these values.

{12 } It is noteworthy that the Board appears to have been somewhat sympathetic with
AMREP’s arguments. As pointed out by AMREP, the Board stated:

       38.     [AMREP’s] expert witness . . . assigned lower values than the
       [a]ssessor[] for each unit based on an analysis of comparable sales trends that
       included sales for the 2009 tax year. All parties seemed to recognize that
       2007 or 2008 was a high water mark for values in Rio Rancho Estates, and
       that 2009 values are down significantly.

       39.     [AMREP’s expert’s] analysis would appear to comply, at least in part,
       with generally accepted appraisal techniques, as required by the applicable
       statute and regulation [to the extent that i]t is a generally accepted appraisal
       technique that recent comparable sales are preferable[.]




                                              4
        40.     However[,] this is a case in which good appraisal practice seems to
        conflict with governing regulation.

(Footnote and citations omitted.) The Board nevertheless determined that it would hold fast
with its consistent interpretation of Section 7-38-7 and the administrative code provisions
“to mean that properties must be valued using only data available on January 1 of the tax
year.” The Board’s primary rationales supporting its hold-fast position were:

        43.    Attempting to value property as of the date of hearing, whenever that
        may be, sets up a moving target that directly conflicts with the goals of
        consistency, certainty[,] and administrability contained in the Property Tax
        Code.

        44.     We also note parallels contained in [Regulation] 3.6.5.23(C), which
        generally establishes the data . . . to be used in determining the “current and
        correct” value of a property (although it contains an apparent oversight in not
        including non-residential properties that are assessed on a one-year appraisal
        cycle, as in this case). That regulation requires the use of “market value of
        the year prior to the current tax year” for property not recently purchased.
        This regulation recognizes that the best indicator of value on January 1 is the
        composite value for the prior year.

        ....

        46.     [AMREP’s expert] witness testified that the asserted values were not
        supportable on pre-2009 evidence alone, and we therefore find that
        [AMREP] has not overcome the presumption of correctness in favor of the
        [a]ssessor’s valuation on this basis.

{13} AMREP asserts that “[t]his is not a case in which good appraisal practice conflicts
with the [relevant statutory and administrative provisions] . . ., it is a case in which the Board
has historically misinterpreted the plain language of [those provisions] and continues to
perpetuate its misinterpretation.” In AMREP’s view, the Property Tax Code requires “only
that the property’s value is accurate as of January 1, 2009, by the use of generally accepted
appraisal techniques.” While AMREP’s position tends to make sound valuation sense, we
will not interpret Sections 7-36-15(B)(1) and 7-38-7 as requiring the Board to include
valuation-relevant, post-January 1 comparable sales in its decision.

{14} The statutory and administrative code provisions at issue, read together so as to give
effect to their meaning, support the Board’s application of its “longstanding interpretation”
of the provisions to the circumstances in this case. In addition to other relevant provisions
noted by the Board, part of the valuation process requires the assessor to mail valuation
notices to property owners by April 1 of each tax year. Section 7-38-20(A). The Legislature
could reasonably have intended the valuation scheme to have consistency and to be efficient

                                                5
and effective through a cut-off date for valuation data. By adhering to a January 1
evidentiary cut-off date, the assessor has a reliable, consistent, workable valuation process,
pursuant to which there is time to prepare and mail valuation notices by April 1. This serves
to reduce the burden on assessors to timely formulate valuations of thousands of properties
for their required time-limited notices of value to be mailed for tax purposes by April 1 of
each year. A cut-off date also eliminates the substantial amount of further valuation work
that would be required in order to meet “moving targets” presented by protests based on
later-developed evidence of comparable tax-year sales.

{15} Nothing in the law suggests that protests boards are required to consider comparable
tax-year sales in determining whether to adjust the assessor’s valuation. In re Protest of
Miller, 88 N.M. 492, 496-97, 542 P.2d 1182, 1186-87 (Ct. App. 1975), rev’d on other
grounds, 89 N.M. 547, 555 P.2d 142 (1976), cited by AMREP to support its argument that
the Board acted arbitrarily and denied AMREP due process, is inapplicable. In Miller, this
Court reversed the decisions of certain county protests boards because the boards had
reached a decision without considering relevant evidence presented at the hearing, thereby
rendering the decisions arbitrary. Id. at 494, 497, 542 P.2d at 1184, 1187. Unlike Miller,
here the relevancy of the evidence is immaterial.

{16} Further, for tax law consistency, efficiency, and effectiveness, the Legislature could
well have intended, as a policy matter, to preclude up-and-down value manipulation and
regulation by adding comparable tax-year sales. With a January 1 evidentiary cut-off date,
the assessor is able to reasonably anticipate the evidence that may be presented to rebut the
presumption of correctness of the valuation, and the assessor is better equipped to defend the
valuation. Nothing in the law suggests that assessors are to gather comparable tax-year sales
data either for valuation notices or to defend protests.

{17} AMREP’s view of the valuation scheme results in what would appear to be an
unacceptable imbalance in the valuation process. In years in which relevant comparable tax-
year sales show a significant increase in property value, once the assessor provides notice
of value, the assessor presumably cannot adjust the valuation upward to reflect a higher
value; whereas, in years in which relevant comparable tax-year sales show a significant
decrease in value, those who protest may obtain a reduced tax-year valuation. We doubt that
the Legislature intended this imparity in the enactment of the statutory property tax
provisions or that the State Taxation and Revenue Department intended this in the adoption
of the administrative code provisions relating to valuation of real property.

{18} In our view, the Board appropriately refused to consider AMREP’s 2009 sales data.
The refusal was based on a policy-driven purposeful cut-off date for sales data. If our view
is mistaken, we assume the Legislature will correct it. We hold that the Board’s
interpretation of the statutory and administrative code provisions was reasonable and that,
with respect to comparable sales, the Legislature intended assessors and protests boards to
consider only the data available on January 1 of the tax year of the valuation notice. The


                                              6
Board did not act contrary to law, it did not act arbitrarily, and it did not deny AMREP
procedural due process.

CONCLUSION

{19}   We affirm.

{20}   IT IS SO ORDERED.

                                           ____________________________________
                                           JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
CELIA FOY CASTILLO, Chief Judge

____________________________________
RODERICK T. KENNEDY, Judge

Topic Index for Amrep Southwest, Inc. v. Sandoval County Assessor, Docket No. 31,207

APPEAL AND ERROR
Standard of Review

GOVERNMENT
Counties

STATUTES
Interpretation
Legislative Intent
Rules of Construction

TAXATION
Property Tax
Valuation




                                           7
