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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: NORTH WILKESBORO SPEEDWAY, INC.
NO. COA 02-660
Filed: 1 July 2003
1. Taxation_valuation of property_weight assigned conflicting evidence
The Property Tax Commission's findings concerning the value of a race track were
supported by sufficient evidence. Although the taxpayer introduced evidence that the property
had a lower value, the Commission assigned greater weight to the County's independent
appraiser and its decision was not arbitrary or capricious.
2. Taxation_property tax commissioner_knowledge of case_failure to recuse
A property tax commissioner's failure to recuse herself from a hearing was not error even
though the taxpayer contended that certain questions and comments by the commissioner
exhibited a bias against the taxpayer. The mere fact that a decision-maker enters a hearing with
knowledge of the subject does not necessarily lead to the conclusion that the decision-maker is
closed to the evidence. All of the commissioners in this case repeatedly asked questions through
both sessions of the hearing in a diligent attempt to understand the facts and opinions presented
3. Taxation_property tax commission hearing_procedure_evidence presented after
motion to dismiss denied
The County waived its right to appeal the property tax commission's denial of its motion
to dismiss by presenting evidence. Although the Rules of Civil Procedure do not apply strictly in
proceedings before these commissions, the Administrative Code does not set out a procedure for
motions to dismiss, the principles of sound trial management apply, and there is no reason to
depart from the usual approach. Furthermore, the Commission has broad discretionary power to
Appeal by taxpayer from final decision entered by the North
Carolina Property Tax Commission on 18 January 2002. Heard in the
Court of Appeals 13 March 2003.
McElwee Firm, P.L.L.C., by John M. Logsdon, for the taxpayer-
Vannoy, Colvard, Triplett, & Vannoy, P.L.L.C., by Anthony R.
Triplett, for appellee Wilkes County.
North Wilkesboro Speedway, Inc. (Taxpayer or Speedway), a
North Carolina corporation, owns real property (the Property)located in Wilkes County, North Carolina. Located on the Property
is a race track facility. Prior to 1995, NASCAR sponsored two
annual races at North Wilkesboro Speedway as part of its Winston
Cup Series. In 1995, New Hampshire International Speedway, Inc.,
and Speedway Motorsports, Inc., each acquired fifty percent of the
shares of North Wilkesboro Speedway, Inc. Before these entities
purchased the Speedway, NASCAR assured them that the Winston Cup
race dates used by the Speedway could be moved to other race
tracks. After the transfer of ownership, one race date was moved
to Texas Motor Speedway and the other race date was moved to New
Hampshire International Speedway. The last NASCAR-sanctioned race
held at the Speedway was on 29 September 1996.
The Property consists of a 43.2 acre tract adjoining, but
without direct access to, U.S. Highway 421. Improvements to the
Property include a five-eighths mile oval paved race track with a
pit and garage area; bleachers, grandstands and towers with private
viewing suites; and various other structures, including restrooms
and concession stands.
In 1998, Wilkes County (the County) performed a county-wide
tax reappraisal, and assigned a value of $8,580,400 to the
Property. In early 1999, taxpayer requested an appraisal review.
On 12 May 1999, the Tax Administrator's office advised taxpayer
that it had inspected and reviewed the Property and recommended an
increase in valuation to $9,560,300. Taxpayer requested a hearing
on this valuation before the Wilkes County Board of Equalization
and Review (the Board). After a hearing at which taxpayer
presented an appraisal and testimony of an independent appraiser,the Board upheld the $9,560,300 valuation. From that decision,
taxpayer appealed to the Property Tax Commission.
On 26 October 2001, the Property Tax Commission held a hearing
on the Taxpayer's appeal. Taxpayer presented evidence through the
testimony and appraisal report of its independent appraiser, Harvey
P. Jeffers, and through the director of real estate for Speedway
Motorsports, Inc., Robert E. Rourke. Mr. Jeffers appraised the
Property at $2,800,000, concluding that its best and highest use is
as a local (non-NASCAR) race track.
The County offered the testimony of its tax supervisor,
Alexander Hamilton, and its independent appraiser, Arthur W.
McElhannon. Hamilton testified that the County based its valuation
of the Property on an appraisal using the cost approach, and
assigned to the property a value of $9,560,300. McElhannon, on the
other hand, appraised the Property using both the cost approach and
the income approach. McElhannon concluded that the highest and
best use of the Property is as a racing test and practice facility,
and that the value of the Property was $7,125,000.
On 18 January 2002, the Commission issued a final decision
concluding that the County had employed an arbitrary and capricious
method when it appraised the Property and that the value assigned
to the Property substantially exceeded the true value in money of
the Property. The Commission ordered the County to revise its tax
records to reflect a value of $7,125,000.
Taxpayer first argues that the findings and conclusions of the
Commission regarding the income approach to valuation are arbitraryand capricious and not supported by the evidence. We disagree.
We review final decisions of the Property Tax Commission under
the whole record test as governed by G.S. § 105-345.2, which
provides that a decision may be reversed or modified if appellant's
substantial rights have been prejudiced because the Commission's
findings, conclusions, inferences, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of statutory authority or
jurisdiction of the Commission; or
(3) Made upon unlawful proceedings; or
(4) Affected by other errors of law; or
(5) Unsupported by competent, material and
substantial evidence in view of the entire
record as submitted; or
(6) Arbitrary or capricious.
G.S. . 105-345.2(b) (2001).
The 'whole record' test is not a tool of judicial intrusion;
instead, it merely gives a reviewing court the capability to
determine whether an administrative decision has a rational basis
in the evidence. In re Owens, 132 N.C. App. 281, 286, 511 S.E.2d
319, 323 (1999), appeal after remand, 144 N.C. App. 349, 547 S.E.2d
827 (2001), disc. review denied, 354 N.C. 361, 556 S.E.2d 575
(2001). Under the whole record test, we must determine whether
the [Commission's] findings are supported by substantial evidence
contained in the whole record. Whiteco Outdoor Adver. v. Johnston
County Bd. of Adjust., 132 N.C. App. 465, 468, 513 S.E.2d 70, 73
(1999). Substantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion. Id. Our courts have long held that it is the function of the
administrative agency to determine the weight and sufficiency of
the evidence and the credibility of the witnesses, to draw
inferences from the facts, and to appraise conflicting and
circumstantial evidence. In re McElwee, 304 N.C. 68, 87, 283
S.E.2d 115, 126-27 (1981). As the reviewing court, [w]e cannot
substitute our judgment for that of the agency when the evidence is
conflicting. Id. at 87, 283 S.E.2d at 127. Thus, we may not
weigh the evidence presented to the [Commission] and substitute
[our] evaluation of the evidence for that of the [Commission]. In
re Amp, 287 N.C. 547, 562, 215 S.E.2d 752, 761 (1975).
The whole record test does not permit the
reviewing court to substitute its judgment for
the agency's as between two reasonably
conflicting views; however, it does require
the court to take into account both the
evidence justifying the agency's decision and
the contradictory evidence from which a
different result could be reached.
Floyd v. N.C. Dept. of Commerce, 99 N.C. App. 125, 128, 392 S.E.2d
660, 662 (1990), disc. review denied, 327 N.C. 482, 357 S.E.2d 217
(1990) (citations omitted). As to the credibility of the
witnesses, this Court has noted that:
Credibility determinations and the probative
value of particular testimony are for the
administrative body to determine, and it may
accept or reject in whole or part the
testimony of any witness. Moreover, even
though the ALJ has made a recommended
decision, credibility determinations, as well
as conflicts in the evidence, are for the
agency to determine.
Oates v. N.C. Dept. of Correction, 114 N.C. App. 597, 601, 442S.E.2d 542, 545 (1994) (internal citations and quotation marks
We note initially that taxpayer has brought forth arguments
concerning only exceptions 1, 2, 3, 4, 5, and 7. Thus, the
exception 6 is deemed abandoned. N.C. R. App. P. 10(a).
 Taxpayer first argues that the Commission's findings of
fact numbers 9, 14, and 19 are not supported by the evidence. The
enumerated findings of fact read as follows:
9. A typical fee paid by Winston Cup race
teams for practice sessions on NASCAR-
sanctioned tracks would be $5,000 per day plus
additional expenses for emergency medical
personnel. The fee for practice sessions on
non-sanctioned tracks, such as the subject
property, by Winston Cup race teams, would
range between $3,000 and $3,5000 per day.
14. The highest and best use of the subject
property, which represents a former NASCAR-
sanctioned Winston Cup racetrack, is the use
as a practice and test facility. The numerous
race teams located within the proximity of the
subject property would contract for use of
this facility to perform practice and test
19. The true value in money of the subject
property as of January 1, 1999, was
After a review of the whole record, we find that there is
sufficient evidence to support these findings of fact. As to
finding number 9, Mr. McElhannon, explained both in his testimony
before the Commission and in his appraisal report that he arrived
at the $3,500 figure based upon his interviews with various NASCAR
Mr. Jerry Freeze, team manager for Petty
Enterprises, . . . indicates typical fees on
Winston Cup Series tracks for practicesessions at $5,000 per day with an additional
expense to the team for emergency medical
personnel to be on standby. This fee was also
confirmed with Mr. Bob Bahre [owner of New
Hampshire International Speedway] who
indicates practice sessions at his New
Hampshire Speedway are also $5,000 per day.
Based on additional interviews with other race
team managers, such as Mike Brown with Bill
Davis Racing, Richard Yates with Robert Yates
Racing, and Steve Hmeil with Dale Earnhardt,
Inc., (DEI), this is a typical fee for Winston
Cup teams on NASCAR-sanctioned tracks. Mr.
Mike Brown with Bill Davis Racing indicated
that their team would probably be reluctant to
pay the $5,000 per day for non-Winston Cup-
sanctioned tracks, but would be more inclined
to pay between $3,000 and $3,500 per day.
In addition, Mr. McElhannon testified before the Commission
the majority of people that . . . that I
interviewed said that they would be reluctant
to pay the $5,000 a day since it wasn't a
sanctioned track. So, I've heard $3,800 a day
for Charlotte and I've heard $1,700 a day for
Bristol. I'm going based on information of
people who would be using this, on what they'd
be willing to pay.
Mr. McElhannon also testified that there are more than eighty-
five race teams within a 100-mile radius of the Speedway and that
there is an ongoing demand by these race teams to use the Speedway
as a practice and test facility. The race teams in close proximity
to the Speedway include the Winston Cup Series, Busch Grand
National Division Series, Craftsman Truck Series, NASCAR Late Model
Stocks, SMART Modifieds, Late Model Super Trucks, Limited Late
Model Super Sport, Mini Stocks, Super Mini Stocks, Legends, Street
Stocks, Six Cylinders, U Cars, Goodys-Series, Hooters Pro Cup, and
numerous other classifications. Based upon demand and the number
of race teams in close proximity to the Speedway, Mr. McElhannonconcluded that the maximally productive use of the subject
facility is for a test and practice track. This evidence supports
finding 14 as well as others that appellant does not challenge.
Based upon the projected income from the use of this facility
as a practice and test facility, combined with the value of other
structures located on the Property, Mr. McElhannon valued the
Property at $7,125,000, the value the Commission settled on in
Although taxpayer introduced evidence that tended to show that
the Property had a much lower value, it is clear that the
Commission assigned greater weight to the County's expert
appraisal. As [c]redibility determinations and the probative
value of particular testimony are for the administrative body to
determine, Oates, 114 N.C. App. at 601, 442 S.E.2d at 545, we
cannot say that the Commission erred in adopting the position of
certain experts over that of others. In re Appeal of Westinghouse
Electric Corp., 93 N.C. App. 710, 716, 379 S.E.2d 37, 40 (1989).
Thus, we conclude that the substantial evidence in the record is
sufficient to support the Commission's findings of fact. In light
of this conclusion, we also hold that the Commission's decision was
neither arbitrary nor capricious, as the Commission reasonably
concluded from the evidence that the market value of the Property
 Taxpayer next argues that the participation of
Commissioner Linda Absher in the consideration of the evidence and
the Final Decision prejudiced taxpayer because Commissioner
Absher exhibited a bias for the County and against taxpayer duringthe hearing and that it was error for her not to recuse herself
upon taxpayer's motion to do so. We disagree.
This Court has held that there is a presumption of honesty
and integrity in those serving as adjudicator on a quasi-judicial
tribunal. Taborn v. Hammonds, 83 N.C. App. 461, 472, 350 S.E.2d
880, 887 (1986)(citations and quotation marks omitted), appeal
after remand, 91 N.C. App. 302, 371 S.E.2d 736 (1988), reversed,
324 N.C. 546, 380 S.E.2d 513 (1989). A party claiming bias or
prejudice may move for recusal and in such event has the burden of
demonstrating objectively that grounds for disqualification
actually exist. JWL Invs., Inc. v. Guilford County Bd. of
Adjust., 133 N.C. App. 426, 430, 515 S.E.2d 715, 718 (1999)
(citation and quotation marks omitted), disc. review denied, 351
N.C. 357, 540 S.E.2d 349 (1999). Bias has been defined as
a predisposition to decide a cause or an issue
in a certain way, which does not leave the
mind perfectly open to conviction. Bias can
refer to preconceptions about facts, policy or
law; a person, group or object; or a personal
interest in the outcome of some determination.
However, in order to prove bias, it must be
shown that the decision-maker has made some
sort of commitment, due to bias, to decide the
case in a particular way.
Smith v. Richmond County Bd. of Education, 150 N.C. App. 291, 299,
563 S.E.2d 258, 265-66 (2002)(citation and quotation marks
omitted), disc. review denied, 356 N.C. 678, ___ S.E.2d ___ (2003).
There is a critical distinction between disqualifying bias against
a particular party and permissible pre-hearing knowledge about the
party's case. Farber v. North Carolina Psychology Board, 153 N.C.
App. 1, 9,569 S.E.2d 287, 294 (2002), cert. denied, 356 N.C. 612,
574 S.E.2d 679 (2003). The mere fact that a decision-maker entersa hearing with knowledge of the subject matter does not necessarily
lead to the conclusion that the decision-maker is close-minded to
the evidence and set as to the final decision. In re Application
of the City of Raleigh, 107 N.C. App. 505, 514, 421 S.E.2d 179, 184
(1992). In Smith, we noted that
Our Supreme Court has recognized that prior
knowledge and discussion of the facts related
to a given adjudicatory hearing are
inevitable aspects of the multi-faceted roles
which Board members play. As long as Board
members are able to set aside their prior
knowledge and preconceptions concerning the
matters at issue, and to base their
considerations solely upon the evidence
presented during the hearing, constitutionally
impermissible bias does not exist.
Smith, 150 N.C. App. at 299, 563 S.E.2d at 266 (citation and
quotation marks omitted).
Here, taxpayer refers to certain questions posed and comments
made by Commissioner Absher during the hearing. After a thorough
review, we are persuaded that the record as a whole shows no
impermissible bias on the part of Commissioner Absher, or on the
part of any of the other commissioners. We note that all of the
commissioners repeatedly asked questions throughout both sessions
of the hearing in a diligent attempt to understand the facts and
opinions being presented to them. This assignment of error is
without merit and is overruled.
 The County has filed a cross-appeal assigning as error the
Commission's denial of its motion to dismiss made at the close of
taxpayer's evidence. Specifically, the County argues that the
appeal before the Commission should have been dismissed becausetaxpayer failed to carry its burden of showing that the County
employed an arbitrary or illegal method of appraising the Property,
that a reappraisal of the Property for the year 1999 was not
permitted under G.S. § 105-287, and that the County misapplied its
schedule of values in reappraising the Property. We disagree.
Although the North Carolina Administrative Code specifically
states that Rules of Civil Procedure do not strictly apply to
proceedings before the Commission, see
17 N.C.A.C. 11.0209 (2002),
our courts have long held that, by presenting evidence, a party
waives its right to appeal the denial of a motion to dismiss.
Hamilton v. Hamilton
, 93 N.C. App. 639, 642, 379 S.E.2d 93, 94
(1989) (citing 9 C. Wright & A. Miller, Federal Practice and
Procedure, sec. 237, p. 221 (1971)). Those provisions of the
Administrative Code that do apply, however, do not set forth a
procedure for motions in general, or motions to dismiss in
particular. Thus, we are left to analogize. We see no reason to
depart from the usual approach here, even though the Rules of Civil
Procedure do not apply, because by analogy, the same principles of
sound trial management do.
Here, the County moved to dismiss taxpayer's appeal at the
close of taxpayer's evidence. The Commission denied the motion,
and the County proceeded to present evidence. Thus, we agree that
the County has waived its right to appeal the denial of its motion
Even if we were to conclude
that the County did not waive its
right to appeal the denial of its motion, the Commission has broad
discretionary power to examine documents and witnesses. G.S. .105-290 provides that Upon its own motion or upon the request of
any party to an appeal, the Property Tax Commission . . . shall
examine witnesses under oath . . ., and examine the documents of
any person if there is ground for believing that information
contained in such documents is pertinent to the decision of any
appeal pending before the Commission, regardless of whether such
person is a party to the proceeding before the Commission. G.S.
. 105-290(d) (2001). The Commission was, thus, empowered to hear
the testimony of the County's tax supervisor and independent
appraiser, as well as examine any documents they may have compiled
or relied upon in forming their opinions.
Judges McGEE and STEELMAN concur.
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