ROBERTSON, Presiding Judge.
Delaney's, Inc., and Springdale Stores, Inc. (hereinafter "the Taxpayers"), appeal from a judgment of the Mobile County Circuit Court holding that 11 parcels of real property owned by the Taxpayers in the City of Mobile were not entitled to current-use tax status for tax years beginning on October 1, 1990. We reverse and remand.
This case has previously been before this court, and the Alabama Supreme Court has reviewed a mandamus petition arising out of the case. State v. Delaney's, Inc., 668 So.2d 768 (Ala.Civ.App.1995) ("Delaney's I"); Ex parte Roberts, 682 So.2d 44 (Ala. 1996) (issuing writ of mandamus directing the trial court to vacate its order denying the state's request for a jury trial). Much of the pertinent factual background and procedural history of the case was summarized in Delaney's I:
"The Taxpayers are related corporations that together own the 11 parcels of real property at issue in this case. The property is located in Mobile County near the intersection of Interstate Highway 65 and Airport Boulevard. At various times during the tax years 1985 through 1989, the Taxpayers filed applications for current use valuation on these 11 parcels of property with the Mobile County tax assessor, all of which were granted. According to the Taxpayers, the property was being used as timberland. On April 1, 1989, Freda Roberts assumed the duties of the newly created office of revenue commissioner of Mobile County. The revenue commissioner's office undertook a review of the property in Mobile County that was being taxed on the basis of current use valuation. The parcels owned by the Taxpayers were included in the property reviewed. After requesting information from the Taxpayers and having the property inspected and appraised, the revenue commissioner determined that
668 So.2d at 769-70 (footnotes omitted). This court reversed the summary judgment and remanded the cause for further proceedings, concluding (1) that the doctrine of res judicata did not apply to the Taxing Authorities' determinations, made during previous tax years, concerning whether the Taxpayers' parcels were entitled to current use treatment; and (2) that a genuine issue of fact concerning whether the use of the Taxpayers' parcels had
After the Supreme Court directed the trial court to vacate its order denying the State's request for a jury trial, the case went to trial. The trial court denied the motions for a judgment as a matter of law ("JML") filed by the State and by the Taxpayers. The jury returned a verdict in favor of the State on the issue whether the Taxpayers' parcels were used for the growing and sale of timber and forest products, and the trial court entered a judgment directing the Taxpayers to pay additional taxes in the amount of $134,278.01. The Taxpayers' subsequent motion for a new trial, as well as their renewed JML motion, were denied.
The principal contention made by the Taxpayers is that during the trial the State did not adduce substantial evidence indicating that the parcels were being used for purposes other than the growth and sale of timber and forest products. If their contention is correct, then the trial court erred in denying the Taxpayers' preverdict and post-verdict JML motions. We review the trial court's determination with respect to these motions under the following standard:
"`The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now, pre-verdict and post-verdict motions for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court's ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-movant.'"
Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)). In other words, we must determine whether the State produced substantial evidence in support of its claim that the parcels of property at issue were not being used for the growing and sale of forest products at those times relevant to the tax status of the parcels during each of the years in question (i.e., 1991-94 and 1996-97).
I. Current-use taxation
Except as otherwise provided by law, real property in Alabama is to be appraised at its fair and reasonable market value, taking into consideration all elements or factors bearing upon such value. Section 40-7-15, Ala.Code 1975. However, § 40-7-25.1, Ala.Code 1975, constitutes an exception to this general rule. It provides that ad-valorem-taxing authorities must base their appraisals of agricultural and forest property "on its current use on October 1 in any taxable year and not on its fair and reasonable market value." Under that section, "current use value" is the value of eligible taxable property based upon the use being made of the property on October 1 of any taxable year, and "no consideration shall be taken of the prospective value such property might have if it were put to some other possible use." Section 40-7-25.1, Ala.Code 1975 (emphasis added). This exception to fair-marketvalue taxation is termed "current-use" taxation.
"`(a) On and after October 1, 1978, all taxable property within this state, not exempt by law, shall be divided into the following classes for the purposes of ad valorem taxation:
"`Class I. All property of utilities used in the business of such utilities.
"`Class II. All property not otherwise classified.
"`Class III. All agricultural, forest and single-family owner-occupied residential property, and historic buildings and sites.
"`Class IV. All private passenger automobiles and motor trucks of the type commonly known as "pickups" or "pickup trucks" owned and operated by an individual for personal or private use and not for hire, rent or compensation.
"`(b) With respect to ad valorem taxes levied by the state, all taxable property shall be forever taxed at the same rate. On and after October 1, 1978, such property shall be assessed for ad valorem tax purposes according to the classes thereof as herein defined at the following ratios of assessed value to the fair and reasonable market value (except as otherwise provided in subsection (j) hereof) of such property:
"`Class I. 30 per centum.
"`Class II. 20 per centum.
"`Class III. 10 per centum.
"`Class IV. 15 per centum.
"`(j) Notwithstanding any other provision of this section, on and after October 1, 1978, taxable property defined in subsection (a) hereof as Class III property shall, upon application by the owner of such property, be assessed at the ratio of assessed value to the current use value of such taxable property and not the fair and reasonable market value of such property. The legislature may enact laws uniformly applicable to the state and all counties, municipalities and other taxing authorities establishing criteria and procedures for the determination of the current use value of any eligible taxable property and procedures for qualifying such property for assessment
"`Section 4. Current use value. For ad valorem tax years beginning on and after October 1, 1978, with respect to taxable property defined... as Class III property and upon request by the owner of such property as hereinafter provided, the assessor shall base his appraisal of the value of such property on its current use on October 1 in any taxable year and not on its fair and reasonable market value. As used in this Act, "current use value" shall be deemed to be the value of eligible taxable property based on the use being made of that property on October 1 of any taxable year; provided, that no consideration shall be taken of the prospective value such property might have if it were put to some other possible use.'"
433 So.2d at 439 (footnotes omitted). Act Number 135 of the Second Extraordinary Session of the 1978 Legislature, as amended, has since been codified at §§ 40-7-25.1, Ala.Code 1975. Eagerton, 433 So.2d at 438 n. 1.
Alabama's adoption of a currentuse-taxation statute followed the enactment of similar statutes in various other states that had begun to feel the effects of rapid urban and suburban growth during the 1950s and 1960s. Current-use-taxation statutes such as § 40-7-25.1 encourage the preservation of noncommercial real property by insuring against the conversion of such land to more intensive uses as a result of higher property-tax assessments. Rustici v. Town of Stonington, 174 Conn. 10, 13, 381 A.2d 532, 534 (1977). By enacting § 40-7-25.1, the legislature addressed what one court has labeled the "self-fulfilling prophecy" of fair-market-value taxation with respect to agricultural land unfortunate enough to be located near an expanding city:
Sierra Club v. Hayward, 28 Cal.3d 840, 850, 623 P.2d 180, 184, 171 Cal.Rptr. 619, 623-24 (1981) (citations omitted). This purpose was specifically recognized by the United States Court of Appeals for the Eleventh Circuit as a rational basis for the disparities that may, from time to time, arise from current-use-taxation statutes:
"The district court recognized that `Alabama is particularly concerned about the preservation of its agricultural and forest property and seeks through its property tax structure to preserve such
Weissinger v. White, 733 F.2d 802, 806-07 (11th Cir.1984) (footnote omitted). With these principles in mind, we turn to the question whether the trial court correctly denied the Taxpayers' JML motions.
II. Were the Taxpayers' parcels "Class III" property?
As stated above, § 40-7-25.1 provides that Class III property is to be taxed based upon its current-use value and not its fair market value "upon request by the owner of such property." Thus, in order to conclude that the 11 parcels of property at issue are, as the Taxpayers contend, subject to current-use taxation, we must first determine whether the parcels are in fact Class III property.
Under Alabama law, Class III property includes "[a]ll agricultural, forest and single-family owner-occupied residential property, and historic buildings and sites." Ala. Const. of 1901, amend. 373, subsec. (a); see also § 40-8-1(a), Ala.Code 1975. "Forest property" is defined as real property used for "the growing and sale of timber and forest products" or any other "horticultural use." Section 40-8-1(b)(1), Ala.Code 1975; see also § 40-7-25.1(b) (defining "forest" property as "real property used for the growing and sale of timber and forest products").
The 11 parcels of property at issue are not occupied by buildings, although they are located close to a large interstate highway (thus giving rise to the commonly used name for the property, the "Interstate Block"). The Taxpayers presented evidence indicating that the Interstate Block was being used for growing stands of pine, oak, and popcorn trees, averaging 20 to 25 years of age, that are not yet merchantable or ready to be harvested, and that nothing else was located on the property other than a few billboard advertisements. In addition, portions of the Interstate Block had been planted with pine seedlings in 1983 and again in 1992. Moreover, the chief appraiser of the revenue commissioner's office admitted that no commercial development had occurred on the property during the preceding 40 years, and the State's forester testified that the Interstate Block was being managed in a manner consistent with good forest management practices.
In contrast, the State did not present substantial evidence indicating that in 1991, the first relevant tax year, the property was not being used for the growing and sale of timber products—the revenue commissioner herself admitted that the property looked "like a thicket" of trees and stated that the incidental use of the property to display billboards should not affect the tax classification of the property. Moreover, the 11 parcels had been granted current-use tax status for the years 1985 through 1989, and no evidence was presented at trial to indicate that the use of
III. "Current use"
Because the property at issue was Class III property, the ad valorem tax on the land is to be calculated with reference to "its current use on October 1 in any taxable year and not ... its fair and reasonable market value." This provision affords a window wherein the State may reevaluate a parcel's tax status in light of a change in the use of the parcel that occurs on or before October 1 of each year. In other words, if a Class III parcel has qualified for current-use taxation in one tax year (e.g., fiscal year 1999, which extends from October 1, 1998, to September 30, 1999), but is subsequently used, on or before October 1, 1999, in a manner inconsistent with its Class III status, the state may determine that the current use of the property is not within the parameters of Class III property and may tax the parcel according to the general rule, i.e., based upon its fair and reasonable market value. As we said in Delaney's I, "Common sense dictates that tax assessors must have the ability to correct any errors that exist in the assessment process, including the ability to revoke current use valuation if the use of the property no longer conforms to the appropriate criteria for allowing current use valuation." 668 So.2d at 774.
However, while we recognize that the State has the power to correct prospectively its determination during the immediately preceding year that the property is entitled to current-use treatment, the basis of that correction must, pursuant to § 40-7-25.1(a), arise from a nonconforming use of the property that occurs on or before October 1 of that year. This requirement follows logically from the Legislature's mandate that when an application for current-use treatment has been granted by a tax assessor or a revenue commissioner, the owner of the property shall not be required to reapply for current-use treatment in subsequent years. See § 40-7-25.2(e), Ala.Code 1975. Thus, to warrant a change in the next year's ad valorem taxation of a parcel that has been granted current-use treatment during a particular year, §§ 40-7-25.1(a) and 40-7-25.2(e), when read together, require that "the use being made of that property on October 1 of any taxable year" be different from the use for which current-use treatment has been granted with respect to the preceding year.
The evidence at trial was undisputed that the property has remained unoccupied and forested since 1991 and that no change in the use of the property has occurred since October 1, 1990. While the State adduced evidence indicating that, in previous tax years, the property had occasionally been used to store parked automobiles, that the property had been platted, and that streets, gutters, and utilities had been installed on the property, it was undisputed that these uses, to the extent that they were inconsistent with the Taxpayer's Class III uses of the land, had all occurred before 1990. Thus, while the State undisputably
While we recognize that "current-use" taxation has its critics (e.g., Comment, Alabama's Property Tax, 36 Ala. L.Rev. 147 (1984)), we are also committed to the proposition that "a taxpayer may resort to any legal method available to it in an effort to diminish the amount of its tax liability." West Point Pepperell, Inc. v. State Dep't of Revenue, 624 So.2d 579, 582 (Ala.Civ.App. 1992), cert. quashed, 624 So.2d 582 (Ala. 1993). Unless and until the statutes governing taxation based upon the current use of Class III property are altered by the elected legislature of this state so as to require fair-market-value treatment of such property, both the taxing authorities and the courts of this state are bound to apply them as they are written. Based on the facts in this case, imposing fair-market-value taxation upon the parcels at issue is a prime example of forced commercialization by taxation, the very evil that § 40-7-25.1 was designed to prevent.
The trial court erred in denying a judgment as a matter of law in favor of the Taxpayers. Its judgment is therefore reversed, and on remand the trial court is instructed to enter a judgment directing the revenue commissioner to afford the Interstate Block current-use treatment with respect to the ad valorem taxes due for the years 1991-94 and 1996-97, and to recalculate those taxes pursuant to subsections (c) and (d) of § 40-7-25.1, Ala.Code 1975.
REVERSED AND REMANDED WITH INSTRUCTIONS.
YATES, MONROE, CRAWLEY, and THOMPSON, JJ., concur.