                                 FIRST DIVISION
                                  DOYLE, C. J.,
                              ANDREWS and RAY, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                        March 7, 2017




In the Court of Appeals of Georgia
 A16A1856. CHEROKEE COUNTY                          BOARD          OF     TAX DO-071
     ASSESSORS v. MASON.

      DOYLE, Chief Judge.

      This appeal arises from the trial court’s determination that Milford Mason was

entitled to a renewal beginning in 2013 of a ten-year Conservation Use Valuation

Assessment (“CUVA”), pursuant to OCGA § 48-5-7.4,1 by the Cherokee County

Board of Tax Assessors (“the Board”) as to certain real property. For the reasons that

follow, we affirm.

      “[A]nyone seeking [a tax] exemption must carry the burden of proof to show

entitlement, and the exemption statute is strictly construed against the person

claiming the exemption. Other than such burden to prove the exemption, the [Board]

      1
      The portions of this Code section applicable to this case have not been
amended since the time Mason filed his application in 2013.
has the burden of proof by a preponderance of evidence that its assessment is

correct.”2 A tax payer may appeal a decision of the Board to the Board of

Equalization,3 and from there to the superior court, which performs a de novo appeal

of a decision of the Board of Equalization.4 On appeal from a superior court, this

Court accepts the superior court’s findings of fact unless clearly erroneous but applies

a de novo standard of review to the court’s application of the law to those facts as

well as to its legal conclusions.5

              [C]ourts should construe a statute to give sensible and intelligent
      effect to all of its provisions and should refrain, whenever possible, from
      construing the statute in a way that renders any part of it meaningless.
      A court’s duty is to reconcile, if possible, any potential conflicts
      between different sections of the same statute, so as to make them
      consistent and harmonious. In construing language in any one part of a
      statute, a court should consider the entire scheme of the statute and
      attempt to gather the legislative intent from the statute as a whole. We




      2
       (Citations omitted). Lamad Ministries v. Dougherty County Bd. of Tax
Assessors, 268 Ga. App. 798, 801 (1) (602 SE2d 845) (2004).
      3
          See OCGA § 48-5-311 (e) (1) (i).
      4
          See OCGA § 48-5-311 (g) (3).
      5
          See Lamad Ministries, 268 Ga. App. at 806 n.3.

                                           2
      apply the same principles of construction to administrative rules and
      regulations.6


      Pursuant to OCGA § 48-5-7.4 (a) (1) , a “‘bona fide conservation use property’

means . . . [n]ot more than 2,000 acres of tangible real property of a single person, the

primary purpose of which is any good faith production, including but not limited to

subsistence farming or commercial production, from or on the land of agricultural

products or timber. . . .”7 If a property owner obtains the status of a bona fide

conservation use property, the result is a substantial reduction of the property tax

assessment.8

      In order to determine whether a property qualifies as a bona fide conservation

use property, the legislature has set forth a non-exhaustive list of factors that a board

or court may consider, including:

      (i) The nature of the terrain; (ii) The density of the marketable product
      on the land; (iii) The past usage of the land; (iv) The economic
      merchantability of the agricultural product; and (v) The utilization or


      6
      (Punctuation omitted.) Terrell County Bd. of Tax Assessors v. Goolsby, 324
Ga. App. 535, 539 (2) (a) (751 SE2d 158) (2013).
      7
          See also Ga. Comp. R. & Regs. r. 560-11-6-.02 (d), (e).
      8
          See Goolsby, 324 Ga. App. at 536.

                                           3
       nonutilization of recognized care, cultivation, harvesting, and like
       practices applicable to the product involved and any implemented plans
       thereof[.]9


       This is the second appearance of this case before this Court. On November 17,

2015, this Court issued an unpublished opinion10 addressing the trial court’s

November 19, 2014 order, which order also determined that Mason was entitled to

the renewal of the CUVA.11 In that opinion, this Court vacated the trial court’s 2014

order, holding that “the trial court erred in applying OCGA § 48-5-7.4 (a) (1) to the

extent that [(1) the trial court found that] the Board was not able to consider Mason’s

management of the timber on the Property as evidence that he was not engaged in the

‘good faith production’ of timber,” and (2) the trial court determined that “the

Property would automatically qualify for a renewal of the CUVA exemption because

there was no testimony that the usage of the Property changed between the prior



       9
           OCGA § 48-5-7.4 (a) (1) (D). See also Ga. Comp. R. & Regs. r. 560-11-6-.02
(d) (3).
       10
        Georgia Court of Appeals Rule 33 (b) (“An unreported opinion is neither a
physical nor binding precedent but establishes the law of the case as provided by
OCGA § 9-11-60 (h).”).
       11
        See Cherokee County Bd. of Tax Assessors v. Mason, Case No. A15A1086
(Nov. 17, 2015) (unpublished).

                                           4
awards of the CUVA exemption to Mason’s property and his 2013 application.”12

This Court remanded the case to the trial court for further consideration of the case

based on the factors set forth in OCGA § 48-5-7.4 (a) (1) (D).

      At the hearing prior to the first appeal, Mason testified that he originally

applied for and obtained a CUVA in 1993 and reapplied for and was again granted

a CUVA in 2003.13 Mason testified that the majority of the tract was wooded with

poplar, and he had harvested the wood approximately 10-12 years ago, earning

$14,000.14 Mason provided a number of pictures showing examples of the density of

the poplar trees across most of the property, and he testified that he provided some

of those photographs or similar photographs to the Board. Mason testified that about

four or five years earlier he started row farming less than one acre of the property,

selling the excess produce; he testified that the sales did not really generate a profit.



      12
           Id. at *8-*11.
      13
         In 1993, the property consisted of more than ten acres. Although the Board
contends otherwise in its brief, when Mason filed for a CUVA in 2003, the property
was listed as being under ten acres. Mason notified the Board of an ownership change
in 2010, and the previously applied CUVA remained in effect.
      14
           Mason did not provide supporting documentation for this sale, but he
testified that he provided his accountant at the time with the documents and believed
he had reported the income to the IRS.

                                           5
Along with his 2013 CUVA application, Mason attached copies of the Schedule F he

had filed with his federal tax returns from 2011 and 2012.

      On cross-examination, Mason admitted that he had a rental home on the tract.

On an aerial photograph provided by the Board, Mason indicated the rental home’s

location, which showed the house was on the tract at issue; he testified that the home

had been on the property the entire time he had owned it—approximately 25 years.

Mason’s rental income from the house was $600 per month from the current tenant.

When asked on cross-examination, Mason admitted that he had no timber or forestry

management plan, he was unaware if anyone from the office ever inspected the

property, and he was never contacted about an inspection.

      Trey Stephens from the Tax Assessors Office testified at the hearing, and he

testified that he inspected the property in September 2013, after the Board denied the

CUVA and prior to Mason’s appeal of the denial to the Board of Equalization.

Stephens stated that another employee did an initial inspection of the property before

the May 2013 denial of Mason’s application, but that individual did not appear at the

hearing. Stephens also stated that he did not see any photographs appended to

Mason’s CUVA renewal application, but he did submit a copy of his Schedule F.

Stephens testified that he saw the garden and trees “seemingly incidental or unkept

                                          6
with underbrush and undergrowth.” Stephens testified that it did not appear to him

that Mason was cultivating timber because of the “substantial undergrowth” and no

“logging road or access road,” but he admitted he was not a certified forester.

      On remand, the trial court held a hearing on March 16, 2016, which consisted

only of argument between the parties without further introduction of evidence.

Thereafter, the court entered an order on April 6, 2016, again finding that the property

qualified as a bone fide conservation use property and ordering the Board to apply the

CUVA to the property. The Board now appeals the April 6 order, arguing specifically

that the trial court erred by (1) finding that despite Mason’s lack of management of

the timber his efforts qualify as “good faith production of agricultural products or

timber”; (2) finding that photographs of standing timber are sufficient to provide

proof of a bona fide conservation use; (3) finding that the Board did not conduct a

visual inspection of the property prior to denying Mason’s application; and (4)

finding that timber production was the primary use of the property.

      “The court is the trier of fact in a bench trial, and its findings will be upheld on

appeal if there is any evidence to support them. The plain legal error standard of




                                           7
review applies where the appellate court determines that the issue was of law, not

fact.”15

       1. The Board argues that the trial court erred by finding that Mason’s actions

constituted “good faith production, including but not limited to subsistence farming

or commercial production, from or on the land of agricultural products or timber,”

pursuant to OCGA § 48-5-7.4.

       In this case, Mason testified that he previously had harvested poplar trees, and

he intentionally left younger trees at that time so that they could mature and be

harvested later. There is no statutory requirement that Mason have a specific timber

management plan or that he do continuous active management of the poplar stands.

Mason provided visual evidence of the type and density of the stands, and the aerial

photograph of the tract shows tree coverage over almost all of the nine plus

undeveloped acres. Mason also testified that he would have reported earnings from

the harvesting to the IRS, and he filed a Schedule F based on his row farming the two

years prior to reapplying for the CUVA.16 While the Board contends that the trial

       15
        (Citation and punctuation omitted.) Simmons v. Bd. of Tax Assessors of
Effingham County, 268 Ga. App. 411 (1) (602 SE2d 213) (2004).
       16
        Obviously, his current Schedule F would not contain income from timber
because he did not sell timber that year.

                                           8
court impermissibly shifted the burden to it, the trial court simply made a credibility

determination, accepting Mason’s account of his past harvesting and intent to harvest

poplar in the future. These findings were not clearly erroneous based on the record

before the court.17 OCGA § 48-5-7.4 (a) does not require intelligent or profitable

timbering to meet the standard of “good faith production,” instead it requires a

showing that the individual is using the designated land to produce timber, crops, or

other agricultural products, even if the result is at the level of substance farming. And,

as noted above, the factors to be considered are non-exhaustive, and the plain

language of the statute does not require that each and every item be met in order to

qualify.18 Accordingly, because the trial court’s application of the law was correct and

its findings of fact were not clearly erroneous, this enumeration is without merit.

      2. The Board also argues that the trial court erred by finding that Mason’s

photographs of standing timber were sufficient to provide proof of a bona fide

conservation use and that the trial court erred by finding that it did not conduct a

visual inspection of the property as required by OCGA § 48-5-7.4 (b) (2) prior to

denying Mason’s application.

      17
           See Lamad Ministries, 268 Ga. App. at 806 n.3.
      18
           Cf. Goolsby, 324 Ga. App. at 539 (2) (a).

                                            9
       With regard to tracts of land under ten acres, OCGA § 48-5-7.4 (b) (2) requires

that

       [t]he owner . . . shall be required by the tax assessor to submit additional
       relevant records regarding proof of bona fide conservation use for
       qualified property that on or after the effective date of this paragraph is
       either first made subject to a covenant or is subject to a renewal of a
       previous covenant. If the owner of the subject property provides proof
       that such owner has filed with the [IRS] a Schedule E, reporting farm
       related income or loss, or a Schedule F, with Form 1040, or, if
       applicable, a Form 4835, pertaining to such property, the provisions of
       this paragraph, requiring additional relevant records regarding proof of
       bona fide conservation use, shall not apply to such property. Prior to a
       denial of eligibility under this paragraph, the tax assessor shall conduct
       and provide proof of a visual on-site inspection of the property;
       Reasonable notice shall be provided to the property owner before being
       allowed a visual, on-site inspection of the property by the tax assessor.


       (a) Photographic evidence. Pretermitting whether the trial court erred by

making any finding regarding Mason’s presentation of photographs in order to meet

the requirement of OCGA § 48-5-7.4 (b) (2), the Board admitted at the hearing that

Mason presented an IRS Schedule F with his application, and such evidence of filing

this Schedule with the IRS in relation to the property specifically excludes application

of the additional records portion of OCGA § 48-5-7.4 (b) (2).


                                           10
      (b) Failure to conduct a visual inspection. OCGA § 48-5-7.4 (b) (2) requires

that prior to denial of a CUVA application for property under ten acres, “the tax

assessor shall conduct and provide proof of a visual on-site inspection of the

property[, and r]easonable notice shall be provided to the property owner before

being allowed a visual, on-site inspection of the property by the tax assessor.”

      The record shows that Mason testified that he was not contacted by anyone

from the Board to inspect the property prior to the denial of his application, and

although Stephens testified that another Board employee made an inspection, no such

report by that employee was presented at the hearing, the employee that allegedly

conducted the inspection did not testify at the hearing, and there was no testimony

from Stephens regarding whether the other employee contacted Mason prior to

conducting an inspection or the nature of the employee’s inspection. Accordingly, the

trial court did not err by finding that the Board was prohibited from applying OCGA

§ 48-5-7.4 (b) (2) because it failed to conduct an on-site inspection.

      4. Finally, the Board argues that the trial court erred by finding that timber

production was the primary use of the property because of the rental house. But at the

hearing, the attorney for the tax assessor’s office did not dispute that the acres

immediately around the house are subtracted from the remainder of the tract as per

                                         11
the statute.19 There is no evidence that Mason rented out any portion of the tract aside

from the excluded residential portion; therefore, the trial court did not err by finding

that his rental of the residence did not prohibit his qualification for the CUVA.20

      Judgment affirmed. Andrews and Ray, JJ., concur.




      19
         See OCGA § 48-5-7.4 (a) (1) (B) (“Such property excludes the entire value
of any residence and its underlying property” equal to “the minimum lot size required
for residential construction by local zoning ordinances or two acres, whichever is
less.”).
      20
           Cf. Goolsby, 324 Ga. App. at 538-539 (2) (a).

                                          12
