An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA 02-1124


Filed: 19 August 2003

from the decision of the         North Carolina Property
New Hanover County Board         Tax Commission
of Equalization and Review        01 PTC 154
concerning real property
taxation for tax year 2001.

    Appeal by Respondent from the final decision entered 1 March 2002 by the North Carolina Property Tax Commission. Heard in the Court of Appeals 14 May 2003.

    Craig Alan Wenger, Taxpayer-Appellee, pro se.

    Assistant County Attorney E. Holt Moore, III, for Respondent- Appellant New Hanover County.

    HUDSON, Judge.

    The subject property here adjoins the lot upon which Taxpayer resides. Taxpayer owns both lots. Because Taxpayer's residence has no municipal or county sewer service, he installed a private septic system upon the subject property. Effective 1 January 2001, New Hanover County reappraised all property within its jurisdiction and applied the schedule of values, rules, and standards adopted by the County Board for the reappraisal. As a result of the 2001 reappraisal, the County Tax Assessor assessed the subject property at a value of $200,000. After Taxpayer informed the Tax Assessor of the septic easement, the Tax Assessor reduced the value to $99,999.    Taxpayer appealed to the New Hanover County Board of Equalization and Review, which affirmed the decision of the Tax Assessor. Taxpayer then appealed to the Tax Commission. On 1 March 2002, the Commission entered a final decision in which it found that Taxpayer met his burden of showing that the County used an arbitrary method of appraisal of the subject property and that the County assigned a value to the subject property that substantially exceeded the true value in money of the property. The Commission then ruled that the true value in money of the property as of 1 January 2001 was $75,000. From the final decision of the Tax Commission, the County appeals.    
    We review final decisions of the Property Tax Commission under the “whole record” test pursuant to G.S. § 105-345.2, which provides that we may reverse or modify a decision if appellant's substantial rights have been prejudiced because the Commission's findings, conclusions, inferences, or decisions are:
        (1) In violation of constitutional provisions; or

        (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 andthe 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). Regarding 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, 442 S.E.2d 542, 545 (1994) (internal citations and quotation marks omitted).
    Here, the testimony at the hearing before the Commission showed that the New Hanover County taxing authority assigned a value of $200,000 to any property on the waterway in that area that was “buildable” regardless of size or other attributes of the lot, such as height above sea level and the presence of wetlands on the property. The evidence also showed that the County would then allow for a fifty-percent reduction in value if the lot was not buildable.
    We believe this method of valuation, whereby the County simply values every lot on the waterway by the same formula without taking into account the size of the lot or other relevant attributes that may affect its value, is arbitrary and the Commission correctly sofound.
    Although Taxpayer did not tender himself as an expert, and was not so accepted, he is a real estate agent who conducts business in the general area where the subject property is located, and as part of his job he routinely values real estate. Through his testimony, Taxpayer introduced evidence of comparable sales in the vicinity of the subject property that tended to show that buildable lots in that area sold for much less than $200,000. As the Commission was free to accept this evidence and weigh its credibility, and as we cannot substitute our opinion of credibility for that of the Commission, we conclude that the Commission acted properly when it found that the value assigned by the County substantially exceeded the true value in money of the subject property.
    Based upon our thorough review, we hold that the whole record reveals that Taxpayer has duly met his burden of showing that the valuation method employed was arbitrary, and that the appraised value of the property substantially exceeded the true value in money of the property.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

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