RESULTS OF A SURVEY EVALUATING ABUSES OF AGRICULTURAL
CLASSIFIED USE ASSESSMENTS IN FLORIDA
W. Arden Colette*
Staff Paper 242
Staff Papers are circulated without formal review by
the Food and Resource Economics Department. Content
is the sole responsibility of the author.
*The author is a former Associate Professor of the
Food and Resource Economics Department, University
Food and Resource Economics Department
Institute of Food and Agricultural Science
University of Florida
Gainesville, Florida 32611
RESULTS OF A SURVEY EVALUATING ABUSES OF AGRICULTURAL
CLASSIFIED USE ASSESSMENTS IN FLORIDA
Forty-nine County Property Appraisers responded to a
survey on abuses of agricultural classified use assessment.
Overall the estimated abuse levels were very low. Forty
percent of those responding indicated no abuse, while 60
percent indicated abuses on less than three percent of
their agricultural parcels. Abuse levels increased as
the relative importance of agriculture in the county as
measured by the proportion of total taxable value represented
by agriculture decreased. Abuse levels also increased as
the ratio of just value to classified use value increased.
Although case law recognizes current physical use of the
land as the primary criterian and does not consider "bona
fide commercial agricultural use" as a necessary condition
for agricultural classification, most property appraisers
associate abuses with parcels that fail one or more tests
for a primary use as bona fide commercial agriculture. The
primary suggestion by the majority of respondents called
for legislative actions to redefine qualifying agricultural
use and delimit preferential assessment to "bona fide
commercial agricultural use."
RESULTS OF A SURVEY EVALUATING ABUSES OF AGRICULTURAL
CLASSIFIED USE ASSESSMENTS IN FLORIDA
Florida statutes specify that all real property must be
assessed at 100% of its value. Two appraisal methods, the
market value or comparable sales method and the income
capitalization method, are commonly used to establish the
value of real property. The comparable sales method
estimates the value of the property on the basis of what
it would bring in an "arms length" sale between a willing
buyer and a willing seller. The income capitalization
method estimates the value of the property on the basis of
the expected stream of net income and the expected rate of
return on the investment.
Under normal conditions where the primary use of the
land is agricultural production the two methods will produce
similar results. However, in the case of real property in
Florida a very large speculative component has been introduced
into the sales value of agricultural land and a situation
has developed where the value of agricultural land computed
by the market method is much higher than the value computed
on the basis of the ability of the land to generate income.
This difference in estimated value is the basis for the
establishment of a dual appraisal system by Article VII of
the Florida Constitution. Article VII, Section 4(a) of the
Florida Constitution states "Agricultural land may be
classified by general law and assessed solely on the basis of
character or use." Therefore, the "classified use value"
of agricultural land is the value of that land in its
present use in agriculture and reflects the value derived
from the income it will produce. This value is ordinarily
calculated using the capitalization of net income method. The
"just value" on the other hand reflects the net sales price
received from an "arms length" market transaction. The just
value is ordinarily calculated using the comparable sales
An indication of the impact of speculation on the value
of agricultural land can be seen by comparing the classified
use value and the just value of agricultural land. This
amounts to comparing the ability of the land to generate
income versus its sales value. According to the 1979 tax
rolls 10 counties or 14.9% of the counties in the state had
ratios of just value to classified use value greater than
five to one, Table 1. Fifty-two percent, 35 counties, had
ratios greater than three to one and 83.6%, or 56 of the
67 counties had ratios greater than two to one.
This very large difference in assessed value has
encouraged more and more individuals to apply for agricultural
classified use assessment. In addition to the increased
load of applications, the outcomes of several court cases
TABLE 1. Ratio of Just Value to Classified Use Value for
Agricultural Land by County, Florida, 1979.
County Ratio Ranking County Ratio Ranking
has made it more difficult for the property appraiser to
determine "bona fide commercial agricultural use" and
differentiate between those parcels that should receive
agricultural classification and those parcels that should
not. This has led to a concern among property appraisers,
legislators and industry leaders that the original intent of
the agricultural classified use assessment is being violated
and the preferential assessment privileges are being abused.
Importance of Agriculture in Establishing the County Tax Base
The importance of agricultural land as a component of
total taxable value varies from county to county. The
relative importance depends upon the amount of agriculture
in the county relative to the amount of urbanization and
industrialization. The wide range of this variation is shown
by the extremes. In Lafayette County 82.5% of total taxable
value is represented by the classified use value of agri-
cultural land, Table 2. On the other extreme, in Monroe
County agricultural land accounts for less than one-fiftieth
of one percent of total taxable value. Thirteen counties
are still predominantly agricultural with agricultural land
accounting for more than one-half of their total taxable
value. The impact of urbanization in the state is indicated
by the fact that agricultural land value represents less
than 10% of the total taxable value in 32 of the counties
TABLE 2. Classified Use Value of Agricultural Land as a
Percentage of Total Taxable Value of Real Property,
by County, Florida, 1979.
County Percent Ranking County Percent Ranking
in Florida. This represents 47.8% of the counties in the
Classification and Assessment of Agricultural Land
The classification and assessment of agricultural land
is provided for in Chapter 193.461 of the Florida Statutes.
The statutes specify that all land in a county must be
classified for assessment purposes on an annual basis as
either agricultural or nonagricultural. Land will, not be
classified agricultural unless a return is filed on or before
March 1 of each year. The taxpayer may be required to
furnish the property appraiser"such information as may
reasonably be required to establish that said lands were
actually used for a bona fide agricultural purpose."
The statutes further provide that only lands which are
used primarily for bona fide agricultural purposes shall be
classified agricultural. "Bona fide agricultural purposes"
is further defined to mean good faith commercial agricultural
use of the land. The following factors were to be taken into
consideration in determining "whether the use of the land for
agricultural purposes is bona fide:"
"1. The length of time the land has been so utilized;
2. Whether the use has been continuous;
3. The purchase price paid;
4. Size, as it relates to specific agricultural use;
5. Whether an indicated effort has been made to
care sufficiently and adequately for the land
in accordance with accepted commercial agricul-
tural practices, .;
6. Whether such land is under lease and, if so, the
effective length, terms, and conditions of the
7. Such other factors as may from time to time become
The statutes also provided for reclassification as nonagri-
cultural upon diversion to nonagricultural use, obtaining
nonagricultural zoning, and the filing of a subdivision plat.
The Board of County Commissioners also had the authority to
reclassify lands to nonagricultural when there was "contiguous
urban or metropolitan development" and the Board found that
"the continued use of such lands for agricultural purposes
(would) act as a deterrent to the timely and orderly expansion
of the community" FSs 193.461(4)(b).
Sale of land for a purchase price of three or more times
the agricultural assessment placed on the land created a
presumption that the land was not used primarily for bona
fide agricultural purposes. Provisions for rebutting this
presumption were provided in Chapter 12D-5.02 of the Rules
of the State of Florida.
Since the statutes were passed and the rules of the
Department of Revenue were approved by the Florida Governor
and Cabinet court decisions have limited the application of
many of the factors and considerations used to determine
agricultural classification. The burden of case law has
eliminated size, profit, purchase price, accepted agri-
cultural practices, primary use, zoning, platting and bona
fide commercial agricultural use as criteria for establishing
agricultural classification. The prevailing criterian being
applied appears to be current physical use of the land.
Abuses of Agricultural Classification
The elimination of the criteria used to determine bona
fide commercial agricultural use has made it possible for
parcels which did not qualify under the original intent of
the legislation to now receive agricultural classification
and qualify for preferential assessment. Preferential assess-
ment is a procedure through which society uses the police
power of taxation to encourage a specified activity. In the
case of classified use assessment of agricultural land, society
expressed a desire to encourage agricultural production and
preserve Florida's agricultural lands in production. The
awarding of preferential assessment to parcels and uses that
are not bina fide agricultural uses is considered an abuse
of the preferential assessment. This type of abuse results
in an unintended transfer of the tax burden from one individual
or group to another.
Publicity surrounding alleged abuses of the preferential
assessment or "Greenbelt law" has been so pervasive that
legislators, business leaders and civic leaders have begun
questioning the desirability of continuing the current
system of preferential assessment. Although dramatic examples
of abuses have been publicized there has been no information
available which would indicate the true magnitude of the
Survey of County Property Appraisers
Since county property appraisers are the constitutional
officers charged with determining the agricultural classi-
fication and assessment of land, a survey was conducted among
the property appraisers in order to ascertain the magnitude
of the problem. The designation of an abuse is a subjective
opinion comparing an observation of fact or circumstance
with a perception of the intent of the original legislation.
Since the county property appraisers work with the appraisal
process it was decided that they would have the most reliable
subjective evaluation of the existence and magnitude of abuses.
In November 1981 a survey form was sent to the county
property appraiser in each of the 67 counties in Florida. A
follow-up survey was sent out in December 1981. This was
followed by a second follow-up mail survey in February 1982
with a telephone follow-up in March 1982. Responses were
received from 49 of the 67 counties. This is a response rate
TABLE 3. Counties Responding to the County Property Appraiser
of 73.5%. A list of the counties responding to the survey
is included in Table 3. All sections of the state were
included in the response. The geographical distribution
of the respondents is shown in Figure 1.
The respondent counties were categorized on the basis
of the importance of agricultural land in their total tax
base and on the ratio of just value to classified use value
of agricultural land. Three categories were established to
reflect the relative importance of agricultural land in the
county. Category (1) one included counties where more than
half of the total taxable value was represented by agri-
cultural land. Category (2) two included counties where
agricultural land represents between 25% and 50% of total
taxable value and the Category (3) three included counties
where agricultural represents less than 25% of total taxable
Counties were also divided into three groups on the
basis of the ratio of just value to classified use value.
Counties with ratios greater than 5:1 were included in
Group (1) one. Counties with ratios between 3:1 and 5:1
were included in Group (2) two. Counties with ratios less
than 3:1 were included in Group (3) three.
The distribution of counties by category and group is
shown in Figure 2. No counties with agricultural land making
up more than 25% of the total taxable value had ratios of
just value to classified use value greater than 5:1. Only
FIGURE 1. Counties Responding to the
County Property Appraisers
TO MONROe COUNTY
* j -t<
FIGURE 2. Counties Responding to County Property Appraiser
Survey, by Importance of Agricultural Land Value
and by Ratio of Just Value to Classified Use
Agricultural Ratio of Just Value : Classified Use Value
Land Value as ... ......
a Percent of Greater Between Less Than
Value Than 5:1 3:1 and 5:1 3:1
Greater Than Dixie Holmes
50% Hamilton Liberty
Between Sumter Gadsden
25% and 50% Jackson
Alachua Charlotte Brevard
Bay Clay Collier
Broward Dade Highlands
Citrus Escambia Indian River
Less Than Duval Gulf Marion
Leon Osceola Martin
25% Putnam Palm Beach Monroe
Sarasota Pasco Okaloosa
Wakulla Santa Rosa
two of the ten counties with ratios greater than 5:1 had
agricultural land values representing more than 4% of total
taxable value. These two counties were Putnam county where
agricultural land represented 6.5% of taxable value and
Franklin county where agricultural land represented 17%
of total taxable value.
Estimate of Abuse
In the survey the property appraisers were asked to
estimate what proportion of the agricultural parcels in
their county could be considered abuses of the intent of
the original legislation and what proportion of the total
agricultural land value these parcels would represent.
The responses of the county appraisers to the question,
what proportion of the parcels should not have agricultural
classification, are summarized in Table 4.
Forty percent of the responses estimated no abuses.
Sixty percent of the counties listed abuses of less than
three percent and 84 percent of the counties indicated less
than 10 percent of their agricultural parcels represented
abuses. Only three counties, or 12 percent of the
respondents, indicated abuse levels above 10 percent.
Further analysis of the responses indicates that the
level of abuse varies as the proportion of the total taxable
value represented by agricultural land value changes and as
the ratio of just value to classified use value changes,
Table 4. Distribution of Estimated Percent of Agricultural
Parcels Currently Receiving Preferential
Assessment That Should Not Have Agricultural
of Parcels Number Percent
Representing of of Cumulative
Abuses Responses Responses Percentages
0 10 40 40
Less than 1 1 4 44
1 3 4 16 60
3 5 1 4 64
6 10 5 20 84
11 20 1 4 88
21 30 1 4 92
31 50 1 4 96
More than 50 ia 4 100
or unknown 24
aOne county reported abuses on all four of their ag parcels.
Table 5. The level of abuse appears to increase as agri-
cultural land value becomes less important, i.e. a smaller
proportion of total taxable value. The level of abuse
increases as the ratio of just value to classified use value
increases. Counties with agricultural land value making
up more than one-half of their total taxable value and with
ratios of just value to classified use value of less than
3:1 estimated abuses at about one-tenth of one percent. The
range of estimates varied from zero to two-tenths of one
percent. At the other extreme were counties with agricultural
land values comprising less than 25 percent of total taxable
value and ratios of just value to classified use value
greater than 5:1. The average of the estimated abuse levels
was 19 percent of the parcels. The range of estimated abuses
was from zero to 40 percent.
A similar pattern is observed when analysing the
estimated percentage of agricultural land value attributable
to abuses. Ten counties, representing 43.5 percent of the
counties responding to the question, indicated that no abuses
of the greenbelt law were identifiable, Table 6. Approximately
74 percent of the respondents indicated less than three
percent of their agricultural land value represented abuses.
Only three counties indicated abuse levels greater than
The level of estimated abuse increased as the relative
importance of the agricultural land value as a proportion of
TABLE 5. Average Estimate of Percent of Parcels Representing
Abuses and Range of Estimated Abuse Levels, by
Importance of Agricultural Land Value, and by Ratio
of Just Value to Classified Use Value
Agricultural Ratio of Just Value : Classified Use Value
Land Value as
a Percent of Greater Between Less
Total Taxable Than 3:1 and 5:1 Than Average
Value 5:1 (Percent) 3:1 (Range)
Greater 3 0.1 2
50% (0 10) (0 .2) (0 10)
Between 2.5 1.0 1.4
50% (0 5) (0 2) (0 5)
Less Than 19 8 4 14
25% 0 40 (0 20) (0 10) (0 40)
Average 19 5 2.5 5
(Range) (0 40) (0 20) (0 10) (0 40)
total taxable value decreased and as the ratio of just
value to classified use value increased, Table 7. Counties
where agricultural land value comprised more than fifty
percent of total taxable value and which had ratios of just
value to classified value less than 3:1 indicated no abuses.
On the other extreme, counties with ratios of just value to
classified use value greater than 5:1 indicated higher
levels of abuse. The average estimate of abuse in this
group was 14 percent. The range of estimates was from zero
to 40 percent.
A fairly consistent pattern emerges from the data. On
a statewide basis the level of abuses is very low. Rural
counties where agricultural land value represents the major
source of taxable value and counties that have maintained
lower ratios of just value to classified use value do not
have perceived problems with abuses of the agricultural
classification. On the other hand those highly urbanized
counties where agriculture represents a small proportion of
the total tax base and where ratios of just value to
classified use value exceed 5:1 have significant problems
with parcels not meeting the original test of bona fide
agricultural use receiving preferential assessment.
TABLE 6. Distribution of Estimated Percent of Agricultural
Land Value Attributable to Parcels Currently
Receiving Preferential Assessment That Should
Not Have Agricultural Classification.
Percent of Number Percent
Land Value of of Cumulative
to Abuses Responses Responses Percentage
0 10 43.5 43.5
Less than 1 3 13.0 56.5
1 3 4 17.4 73.9
3 5 1 4.3 78.2
6 10 1 4.3 82.5
11 20 1 4.3 86.8
21 30 1 4.3 91.1
31 50 1 4.3 95.4
More than 50 1a 4.3 99.7
or unknown 26
alone county estimates that
parcels represent abuses.
all four of their agricultural
TABLE 7. Average Percent of Agricultural Value Represented
by Abuses and Range of Estimated Abuse Levels,
by Importance of Agricultural Land Value and by
Ratio of Just Value to Classified Use Value.
Agricultural Ratio of Just Value : Classified Use Value
Land Value as
a Percent of Greater Between Less
Total Taxable Than Than Average
Value 5:1 3:1 and 5:1 3:1 (Range)
Greater 3 0 2.5
50% (0 10) (0 0) (0 10)
Between 0.5 0.7 0.7
50% (0 1) (0 2) (0 2)
Less 14 7 1.2 7
25% (0 40) (0 25) (0 5) (0 40)
Average 14 4 0.9 3.7
(Range) (0 40) (0 25) (0 5) (0 40)
Court Cases Involving Agricultural Classification
The current criteria and procedures for determining
agricultural classification are the result of the outcome of
many court decisions. The final interpretation and meaning
of a statute is not known until the case law is developed.
In the case of agricultural classification the case law was
overridden and superceded almost every provision of the
original statute that could be used to deny an application.
The court decision identified most often by the county
property appraisers as having an impact on agricultural
appraisals was Roden v. K & K Land Management, Inc.
Copies of court rulings in four cases: Roden v. K & K
Land Management; Straughn v. Tuck; Sciturro v. Bass; and
CF Mining Corp. v. Stewart are included in the Appendix.
A fifth important case, Fogg v. Broward County, is still
being considered in the courts.
An excellent review of Roden v. K & K Land Management,
Inc. by James H. Burgess, Jr. is contained in the Florida
State University Law Review Vol. 7:571.
Characteristics of Parcels Identified as Abuses
Under current case law the "use" of the land is the
primary consideration in determining agricultural classifi-
cation. The identification of an abuse, in most cases, is
a subjective evaluation of the factual situation compared
to the property appraiser's interpretation of the original
intent of the legislature.
Although case law does not consider "bona fide commercial
agricultural use" as a necessary condition for qualifying for
agricultural classification, most parcels identified as
abuses fail one or more of the tests for "bona fide commercial
The property appraisers identified those characteristics
of parcels which posed the most problems in determining
agricultural classification. The characteristics listed most
often were directly related to the suitability of the parcel
for commercial agricultural use, Table 8. The size of the
parcel in relation to a possible bona fide agricultural use
was listed as a problem by thirty-one appraisers. This
usually involved acreages that are too small to graze an animal
throughout the year or are inconsistent with the implementation
of accepted commercial agricultural practices. Size problems
were usually associated with 5 and 10 acre tracts with a few
counties indicating problem acreages up to 40 acres.
The "bona fide agricultural" of the land and agricultural
as the "primary use" were the second most often listed
problems. These were associated with primary uses of
residence and/or hobby farming on the small parcels and
speculation or development on large parcels. These concerns
were bolstered by the inability of the parcels to produce
income, be operated at a profit or provide a reasonable
return on the investment.
TABLE 8. Characteristics of Parcels and Uses That
County Property Appraisers Associated With
Abuses of Agricultural Classification.
Characteristic Number of Responses
Bona fide agriculture 11
Primary use 11
Sale price 4
Suggestions for Changes
Twenty-three appraisers submitted suggestions for changes
or improvements in the laws or Department of Revenue regula-
tions. Redefinition and delineation of agriculture use was
suggested more than twice as often as any other alternative,
Table 9. These suggestions were aimed at delimiting the
preferential assessment to bona fide agricultural use and
eliminating parcels where speculation, development, residen-
tial living or recreation were the primary use of the land.
Size limitations, application of acceptable agricultural
practices, reasonable expectation of return, and guidelines
for determining primary use were included.
Suggestions that would place a penalty on diversion of
use from agriculture to development or restrict the rate of
development included recapture provisions, land use covenants
and transferable development rights. Six respondents favored
recapture, three favored land use covenants and one suggested
transferable development rights.
Other suggestions included changing to a fractional
assessment system, revising the review and appeal procedures
and placing a residence requirement on the owner in order to
qualify for preferential assessment.
TABLE 9. Summary of Suggestions for Improvements.
Suggestion Number of Responses
in the statutes 13
Recaptive provisions 6
Land use covenant 3
Fractional assessment 3
Revise appeal or
review procedure 2
Residence requirement 2
Development rights 1
Agricultural leaders, business leaders, legislators,
and the news media all have expressed concern over abuses
of the agricultural classification and preferential assess-
ment. In an effort to ascertain the magnitude of the
problem a survey was conducted among the County Property
Appraisers for the 67 Florida counties. Responses were
obtained from 49 counties providing a 73.5 percent response
Overall the indicated level of abuse is quite low.
Forty percent of the respondents to the question indicated
no abuses in their counties. Sixty percent indicated abuses
on less than three percent of their parcels and 84 percent
estimated less than 10 percent of their agricultural parcels
represented abuses. Only three indicated abuse levels
greater than 10 percent. The level of abuse appears to be
closely tied to the characteristics of the agriculture and
development in the county. Counties where the value of
agricultural land represents more than one-half the total
taxable value and where the ratio of just value to classified
use value is less than 3:1 have very low levels of abuse.
Abuse levels increase as agriculture becomes less important
in the county and as the ratio of just value to classified
use value in the county increases.
Counties which have experienced heavy urbanization and
development pressure have the most problems with perceived
abuses. Case law has focused on current physical use of the
land as the primary consideration in determine agricultural
classification. Most of the provisions of the Florida
Statutes requiring "bona fide commercial agricultural use"
as the primary use have been made inoperative by court
decisions. Individuals have been able to qualify for
preferential assessment on acreages whose primary use was
privacy or personal recreation with minimal agricultural
input. Businesses have been able to qualify for preferential
assessment on large parcels where the primary use was
speculation, development or subdivision.
The relationship between size, accepted cultural practices,
"bona fide commercial agricultural use" and determination
of primary use are the problems property appraisers are the
most concerned about. The absence of a clear definition of
bona fide agricultural use and guidelines for determining
primary use place the property appraiser in the position where
he cannot comply with his interpretation of the original
intent of the law.
Most of the property appraisers responding to the survey
favored legislative action to implement definitions and
guidelines that would delimit the application of preferential
assessment to bona fide commercial agricultural use. A
smaller group favored establishment of a recapture provision,
land use covenant or transferable development right system.
Court Findings Supplied by County Property Appraisers
Roden v. K & K Land Management
Straughn v. Tuck
Sciturro v. Bass
CF Mining Corp. v. Stewart
Fogg v. Broward County
NOT FINAL UNTIL TIME EXPIRES TO
IF FILED, DETERMINED.
FILE REHEARING MOTION, AND,
IN THE SUPREME COURT OF FLORIDA
JULY TERM, A. D. 1978
JAMES L. RODEN, ETC., ET AL.,
: CASE NO. 51,954
K & K LAND MANAGEMENT, INC.
: DCA Case No. 76-1129
Opinion filed July 20, 1978
Writ of Certiorari to the District Court of Appeal, Second
Michael D. Martin of Martin and Martin, Lakeland, Florida, for
James L. Roden; Larry DeFrances, Ad Valorem Tax Counsel,
Tallahassee, Florida; and Zollie Maynard, Assistant Attorney
General, Tallahassee, Florida, for Department of Revenue,
R. Lee Bennett of Lowndes, Peirsol, Drosdick and Doster, Orlando,
Florida, for Respondent.
C. A. Boswell and M. David Alexander of Boswell, Boswell and
Conner, Bartow, Florida, for CF Mining Corporation, Amicus Curiae.
Martha W. Barnett of Holland and Knight, Lakeland, Florida, for
First Mississippi Corporation, Amicus Curiae.
The decision of the District Court of Appeal in this
cause, Straughn v. K & K Land Management, Inc., 347 So. 2d 724
(Fla. 2d DCA 1977), conflicts with the decision in First
National Bank of Hollywood v. Markham, 342 So. 2d 1016 (Fla..
4th DCA 1977). We have jurisdiction of the petition for
certiorari. Article V, Section 3(b)(3), Florida Constitution.
The issue in conflict is whether more than just agri-
cultural use is required to establish for purpose of tax
assessment that land may be classified agricultural and be
entitled, therefore, to prefer ntial tax treatment. In
Straughn v. Tuck, 354 So. 2d 368 (Fla. 1978), we reviewed the
constitutionality of Section 193.461(3), Florida Statutes.
The statute mandates that to gain "agricultural" classification
land must be "actually used for a bona fide agricultural
purpose," Section 193.461(3)(a), which means "good faith
commercial agricultural use of the land." Section 193.461(3) (b).
In the course of the opinion upholding the statute the following
was stated, at 370: "'use' is still the guidepost in
classifying land, although other specifically enumerated factors
relative to use may also be considered. Agricultural use is
now and has always been the test." We adhere to this view. As
we intimated in Tuck the factors listed in subsection (b) of
Section 193.461(3) are to be considered in making the deter-
mination of good faith agricultural use but none is determin-
ative. We disapprove of Markham to the extent it conflicts with
Tuck. This resolves the conflict between Markham and this
A problem not present in Markham and Tuck is present in
this case. Sale of land for a purchase price three or more
times greater than its agricultural assessment creates a
presumption that the land is not used for good faith agricul-
tural purposes. Section 193.461(3), Florida Statutes. The
presumption may be overcome "(u)pon a showing of special
circumstances by the landowner demonstrating that the land
is to be continued in bona fide agriculture." In this case
the District Court upheld the trial court's determination
that there existed special circumstances sufficient to rebut
the presumption. As the Department of Revenue has done before,
it stresses that commercial success is a necessary circum-
stance for rebuttal. We reject this notion. As we stated in
Straughn v. K & K Land Management, 326 So. 2d 421 (Fla. 1976),
"special circumstances" may be drawn from the factors for
consideration in the classification process listed in Section
193.461(3)(b). The presence of all or any one factor in
particular is not necessary for the presumption's rebuttal.
In this case K & K Land Management purchased approximately
350 acres of producing citrus grove for six times the agri-
cultural assessment. Twenty-five of the acres were developed
into an amusement park, but the remainder of the grove was
continued to be used for citrus production. The issue was
whether the presumption of non-agricultural use in Section
193.461(4) (c) was overcome as to the acreage continued for
citrus production. On the record before us, we cannot say the
trial court found incorrectly that the presumption had been
rebutted and that respondent was entitled to agricultural
The decision of the District Court is affirmed. First
National Bank of Hollywood v. Markham, 342 So. 2d 1016 (Fla.
4th DCA 1977), is disapproved.
It is so ordered.
ENGLAND, C.J., SUNDBERG and HATCHETT, J.J., Concur
ALDERMAN, J., Concurs in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING PETITION AND,
IF FILED, DETERMINED.
IN THE SUPREME COURT OF FLORIDA
JULY TERM, A. D., 1977
J. ED STRAUGHN, ETC., ET AL., *
APPELLANTS, CASE NO. 50,152
VS. Circuit Court
Case No. 73-1611-CA
HARLAN TUCK and FLORENCE P. TUCK, *
HIS WIFE, *
Opinion filed December 8, 1977.
An Appeal from the Circuit Court in and for Seminole County,
Volie A. Williams,.Jr., Judge.
Robert L. Shevin, Attorney General, and Caroline C. Mueller,
Assistant Attorney General, Tallahassee, Florida; Robert J.
Pierce of Freeman and Woolfolk, Altamonte Springs, Florida;
and Joe Horn Mount, County Attorney, Sanford, Florida, for
Harlan Tuck of Giles, Hedrick and Robinson, Orlando, Florida,
Appellees own a 20 acre tract of unimproved land, zoned
agricultural, but not so classified for tax purposes. In an
action for declaratory judgment and injunctive relief, appellees
sought to have their property reclassified and taxed agricul-
tural for the years 1973 and 1974. Final judgment was entered
in their favor, based on a finding that their land was denied
agricultural classification pursuant to an unconstitutional
statute, Section 193.461, Florida Statutes (1973) and was
assessed without due regard to the dictates of Section 193.011,
Florida Statutes (1973). Because the trial court initially
and directly ruled on the validity of a state statute we have
jurisdiction. Article V, Section 3(b)(l). While we agree
with the trial court that appellees' land was not assessed in
conformity with Section 193.011, we cannot agree that Section
193.461(3) is unconstitutional, either on its face or as
applied to these appellees, and reverse the trial court's
judgment to the extent that it so holds.
The Legislature was given authority to grant special
tax treatment to agricultural land pursuant to Article VII,
Section 4, Florida Constitution (1968).
Section 4. Taxation; Assessments--
By general law a regulation shall be prescribed
which shall secure a just valuation of all
property for ad valorem taxation, provided:
(1) agricultural land or land used exclusively
for non-commercial recreational purposes may be
classified by general law and assessed solely
on the basis of character or use. (Emphasis added)
It should be noted that the Constitution authorizes, but does
not require the Legislature to provide preferential valuation
of agricultural land, i.e., the Constitution is not self-
executing. The Legislature has acted upon this authority,
however, several times.1 Our present statute reads in
iChapter 69-55, Laws of Florida, 1969
Chapter 72-181, Laws of Florida, 1972
Chapter 74-234, Laws of Florida, 1974
pertinent part as follows:
(1) The (property appraiser) shall, on an annual
basis, classify for assessment purposes all lands
within the county as either agricultural or
(3)(b) Subject to the restrictions set out in
this section, only lands which are used primarily
for bona fide agricultural purposes shall be
classified agricultural. "Bona fide agricultural
purposes" means good faith commercial agricultural
use of the land. Section 193.461, Florida
These sections were, in all significant respects, identical
in the 1973 statute which governs in this case.
Appellees argue, and the trial court held, that sub-
section (3) (b) is unconstitutional "insofar as, but only
insofar as it purports to redefine and limit the concept of
agricultural land as it existed in 1967 and 1968 and became
fixed in the Florida Constitution." It is their contention
that the Legislature improperly defined "agricultural land"
by requiring commercial agricultural use of such land since
the new Constitution was adopted by the people with a broader
concept in mind.
Appellees suggest that in 1967 and 1968 it was the
nature of the land that was determinative, not the use to which
the land was put. We cannot agree. Clearly, in order to
qualify for preferential agricultural classification prior to
1968 one had to prove agricultural "use." Florida's original
"Greenbelt Law," Chapter 59-226, Laws of Florida (1959)
extended preferential treatment to lands "used exclusively
for agricultural purposes ." and all subsequent enactments
have been consistent, at least with reference to the use
requirement. In the leading case on this subject, the Fourth
District Court of Appeal unequivocally stated:
The favorable tax treatment provide by this statute
is predicated on land use, that is, physical
activity conducted on the land. (Footnotes
omitted.) Under the terms of this statute, as
we understand them, if the land is physically used
for agricultural purposes, it must be accorded
agricultural zoning, provided the use is primarily
for bona fide agricultural purposes. Hausman v.
Rudkin, 268 So.2d 407 (Fla. 4th DCA 1972).
In accord see Smith v. Parrish, 262 So.2d 237 (Fla. 1st DCA
1972) and Smith v. Ring, 250 So.2d 913 (Fla. 1st DCA 1971).
In 1972, Section 193.461 was substantially modified
by Chapter 72-181, Laws of Florida (1972). However, as
evidenced by subsection (3) (b) of the statute, "use" is still
the guidepost in classifying land, although other specifically
enumerated factors relative to use may also be considered.
Agricultural use is now and has always been the test.
"Commercial agricultural use" simply adds another factor,2. i.e.,
In determining whether the use of the land for
agricultural purposes is bona fide, the following factors may
be taken into consideration:
(1) The length of time the land has been so utilized;
(2) Whether the use has been continuous;
(3) The purchase price paid;
(4) Size, as it relates to specific agricultural.use;
(5) Whether an indicated effort has been made to care suf-
ficiently and adequately for the land in accordance with
accepted commercial agricultural practices, including, without
limitation, fertilizing, liming, tilling, mowing, reforesting,
and other accepted agricultural practices;
(6) Whether such land is under lease and, if so, the effec-
tive length, terms, and conditions of the lease; and
(7) Such other factors as may from time to time become
applicable. Section 193.461, Florida Statutes (1975).
profit or profit motive, which may be considered by the tax
assessor in determining whether or not a claimed agricultural
use is bona fide. It does not, as appellees suggest, limit
agricultural classification to commercially profitable
agricultural operations. In Walden v. Tuten, 347 So.2d 129
(Fla. 2nd DCA 1977), the Second District Court of Appeal
addressed this issue and held:
We think, therefore, that profit motive is a
relevant consideration in determining whether
a given agricultural use is in fact a bona
fide "commercial" use. Such a motive would
certainly be one of the "other factors as
may become applicable" within the
contemplation of subsection (7) of the afore
quoted factors listed under subsection (3)(b)
of Section 193.461, supra.
For the reasons expressed above, we find Section 193.461
(3)(b) constitutionally sound.
Tax assessors are constitutional officers and as such
their actions are clothed with the presumption of correctness.
One asserting error on the part of the tax assessor must show
by "proof" that every reasonable hypothesis has been excluded
which would support the tax assessor. Powell v. Kelly, 223
So.2d 305 (Fla. 1969). Appellees have failed to meet this
burden. Appellees' land is in its natural, unimproved state.
There is ample evidence upon which the tax assessor could have
found that the land was not being used for an agricultural
As to appellees' second point, relative to assessment
under Section 193.011, Florida Statutes (1973), we must agree
that the tax assessor failed to consider all factors enumerated
in the statute in arriving at a just valuation of appellees'
property. Section 193.011 provides as follows:
In arriving at just valuation as required under
Sec. 4, Art. VII of the State Constitution, the
tax assessor shall take into consideration the
(1) The present cash value of the property;
(2) The highest and best use to which the
property can be expected to be put in the
immediate future and the present use of the property;
(3) The location of said property;
(4) The quantity or size of said property;
(5) The cost of said property and the present
replacement value of any improvements thereon;
(6) The condition of said property;
(7) The income from said property; and
(8) The net proceeds of the sale of the property
as received by the seller, after deduction of all
of the usual and reasonable fees and costs of the
sale, including the costs and expenses of financing.
Under decisions of this Court a tax assessor must consider each
factor enumerated in the statute, although he may assign to
each factor such weight as he deems proper. Failure to
consider any element listed necessitates the setting aside of
his evaluation. Lanier v. Walt Disney World, 316 So.2d 59
(Fla. 4th DCA 1975).
More specifically, the tax assessor in this case failed
to consider the "present use" of appellees' property, in
determining the "highest and best use" to which the property
could be expected to be put in the "immediate future." Section
193.011(2). Rather, he valued it by subjective standards,
using speculative factors, assuming there would be a zoning
change and the land converted to a more intensive use. Within
the general area of the appellees' land large tracts of similar
land were being sold far above any realistic agricultural land
values for development of multi-family projects and other
commercial enterprises. By his own admission, the assessor
did not consider whether these comparable sales were contin-
gent on zoning changes. Most were. The uses under the
statute must be immediate, not speculative, and not predicated
on conversion to higher or better uses. Lanier v. Overstreet,
175 So.2d 521 (Fla. 1965). Present use and immediate future
use are strongly influenced by zoning and zoning must,
therefore, be considered by the assessor in his determination
of just valuation. Lanier v. Walt Disney World Co., supra.
Accordingly, we reverse in part and affirm in part and
remand to the trial court for action consistent with the
opinions expressed herein.
It is so ordered.
OVERTON, C.J., ADKINS, BOYD, ENGLAND, SUNDBERG and KARL, JJ., Concur
IN THE CIRCUIT COURT FOR
ST. LUCIE COUNTY, FLORIDA
CASE NO. 78-561-CA
JOSEPH J. SCITURRO, as
JAMES W. BASS, et al.,
AMENDED FINAL JUDGMENT
THIS CAUSE having come on for Rehearing subsequent to
Final Judgment, and the court having heard argument of counsel
and their stipulation and being otherwise freely advised in
the premises, the Final Judgment herein, issued on the 21st
day of February, 1980, is hereby amended and modified as
1. The granting of the agricultural classification
shall be contingent upon the plaintiff furnishing sufficient
proof that the requested agricultural classification is
allowed under the current zoning regulations of St. Lucie
2. Except as specifically modified above, the Final
Judgment is hereby confirmed.
DONE AND ORDERED at Fort Pierce, St. Lucie County,
Florida, this 24th day of June, 1980, Nunc Pro Tunc as of
February 21, 1980.
IN THE CIRCUIT COURT FOR
ST. LUCIE COUNTY, FLORIDA
CASE NO. 78-561-CA
JOSEPH J. SCITURRO, as
JAMES W. BASS, et al.,
THIS CAUSE having come on for trial on the 16th day
of January, 1980, the Court having heard argument of counsel
and testimony of Witnesses and being otherwise fully advised
in the premises, it is upon consideration ORDERED AND
ADJUDGED as follows:
1. That the north portion of plaintiff's property
which is the subject of this suit shall be re-classified to
entitle plaintiff to an agricultural classification thereon.
2. That the defendants herein shall re-evaluate the
property based upon an agricultural classification.
3. That the plaintiff shall furnish an accurate survey
to the defendants in order that defendants may determine
the correct acreage of the north portion of plaintiff's
4. That the costs of this action are hereby assessed
against the defendants, as set forth below:
Roger Poitras-, Clerk, filing fee $ 27.00
C. L. Norvell, Sheriff, service 40.00
James Bass, witness fee 5.00
John Brooks, witness fee 5.00
Florida Court Reporters, attendance
and transcript of deposition of
James Bass taken 5/14/79 92.00
Omo & Associates, attendance at trial
and partial transcript 129.90
5. The Court hereby retains jurisdiction of this cause
in the event that there is any dispute between plaintiff and
defendants as to the value of plaintiff's property based upon
the new agricultural classification of the property.
ORDERED at Fort Pierce, St. Lucie County, Florida,
this 21st day of February A. D. 1980.
Copies furnished to:
R. N. Koblegard, III, Esq.
Devitt J. Adams, Esq.
Gaylord A. Wood, Jr., Esq.
IN THE CIRCUIT COURT FOR
ST. LUCIE COUNTY, FLORIDA
CASE NO. 78-561 CA
JOSEPH J. SCITURRO, as
JAMES W. BASS, as St. Lucie County
Property Appraiser; DANIEL N. KNOWLES,
JR., as St. Lucie County Tax Collector;
ST. LUCIE COUNTY BOARD OF TAX
ADJUSTMENT; and FLORIDA DEPARTMENT OF
COMES NOW the plaintiff, JOSEPH J. SCITURRO, as Trustee,
and sues the defendants, and alleges as follows:
1. Plaintiff is a resident of St. Lucie County,
2. Defendants are James W. Bass, Property Appraiser for
St. Lucie County,.Daniel N. Knowles, Jr., Tax Collector for
St. Lucie County, St. Lucie County Board of Tax Adjustment,
and the Florida Department of Revenue, all of whom are persons
or entities required to be joined as defendants under Section
194.181 and 195.002, Florida Statutes.
3. Jurisdiction and venue of this action are placed
in this Court by Section 194.171, Florida Statutes.
4. This action is filed to contest the validity of
the 1978 tax assessment of certain real property owned by the
plaintiff in St. Lucie County. The tax parcel number of the
property is 3403-502-0218.000/8, and the legal description is
That part of Lots 203, 204, 205, and 207 lying
East of Drainage Ditch No. 71 and all of Lots
208 and 209, less that part of Lot 208 as
described in that certain deed recorded in
0. R. Book 279, Page 2123 of the Public Records
of St. Lucie County, Florida, all of the above-
described property being a part of WHITE CITY
SUBDIVISION lying in Section 9, Township 36
South, Range 40 East, according to Sheen's
Survey as per Plat thereof recorded in Plat
Book 1, Page 23, Public Records of St. Lucie
5. The assessment roll on which the property is listed
was certified pursuant to Section 193.122, Florida Statutes,
on October 24, 1978.
6. In accordance with applicable constitutional (Section
13, Article VII, Florida Constitution) and statutory (Section
194.171, Florida Statutes) requirements, the plaintiff has
paid the amount of 1978 real property tax which he admits is
legal and due. The amount of real property tax which the
plaintiff admits is legal and due is $253.41 and the fair
value of the property on which that amount is based is
7. A certificate evidencing receipt for payment of
taxes in the above amounts less a three (3%) percent discount
for December payment is attached hereto as Exhibit A.
8. Plaintiff contests the assessment of the property
based on a non-agricultural valuation, and the consequent levy
of real property taxes, in the following amounts:
Non-Agricultural Assessment Real Property Taxes Levied
A copy of the tax notice reflecting the above assess-
ment and levy is attached hereto as Exhibit B.
9. As of January 1, 1978 and all other relevant times,
the property was being used exclusively for agricultural
10. The plaintiff acquired the property, consisting
of thirteen (13) acres, on May 26, 1972, at a price of
approximately $1,300.00 per acre.
11. Since the plaintiff acquired the property, it has
been used exclusively for agricultural pursuits.
12. Prior to March 1, 1978, plaintiff filed a petition
as to the property pursuant to Section 193.052 and 193.461,
Florida Statutes, requesting an agricultural classification
on the property.
13. On or about September 7, 1978, plaintiff received
a notice of denial of application for classification of
agricultural lands for ad valorem tax purposes by the County
14. Pursuant to Section 193.461(2), Florida Statutes,
plaintiff timely filed a petition with the St. Lucie County
Board of Tax Adjustment for review of the St. Lucie County
Property Appraiser's denial of plaintiff's petition.
15. The defendant Board denied the relief requested
in plaintiff's petition in a Record of Decision and Notice
of Board of Tax Adjustment dated September 7, 1978, a copy
of said Record and Notice is attached hereto as Exhibit C.
16. The taxes imposed on the property for 1978 in
excess of those paid by the plaintiff are illegal and void
for the following reasons:
a. Section 193.461, Florida Statutes, violates
Article VII, Section 4 of the Florida Constitution, which
provides that agriculturalrl lands may be classified
by general law and assessed solely on the basis of character
and use." (Emphasis supplied.)
b. Section 193.461, Florida Statutes, violates
plaintiff's rights to equal protection of the laws as
guaranteed by the federal and state constitutions in that
it establishes a classification which discriminates unreas-
onably against a property owner who attempts to conduct a
bona fide agricultural operation on .property that has not
previously been classified as agricultural.
c. Section 193.461, Florida Statutes, denies due
process as guaranteed by the federal and state constitutions
because it is arbitrary and not reasonably related to any
valid legislative purpose.
WHEREFORE, plaintiff prays that the Court:
a. Declare that Section 193.461 and 193.122, Florida
Statues, are unconstitutional and void;
b. Determine that the additional tax levied on the
plaintiff because of the reclassification of its property
as non-agricultural is invalid as based on a void assessment,
or in the alternative, that it is invalid as based on a void
determination by the Department of Revenue;
c. Declare that plaintiff has no additional real
property tax liability-on the property for 1978;
-d. Enter a decree setting aside the levy of additional
1978 real property tax on the property in the amount of
$1,438.83 and enjoining any collection thereof;
e. Enjoin the sale of the property for taxes pending
the outcome of this litigation;
f. Assess costs against defendants, pursuant to
Section 194.192, Florida Statutes, and award 'plaintiff his
reasonable attorneys' fees; and
g. Grant such other and further relief as the Court
may deem necessary and proper.
DATED this 20 th day of December, A. D. 1978.
JOSEPH J. SCITURRO, As Trustee
STATE OF FLORIDA )
COUNTY OF ST. LUCIE )
BEFORE ME, the undersigned authority, this day person-
ally appeared JOSEPH J. SCITURRO, who upon first being duly
sworn by me, deposes and says that he has read the foregoing
complaint, that the statements contained therein are true
and correct to the best of his knowledge and belief and that
he has executed same for the purposes expressed therein.
JOSEPH J. SCITURRO, As Trustee
WITNESS my hand and official seal in the State and County
aforesaid this 20th day of December, A. D. 1978.
My commission expires: 11-18-79
FEE, KOBLEGARD & TEEL, P.A.
Attorneys for Plaintiff
Post Office Box 1000
Fort Pierce, Florida 33450
R. N. KOBLEGARD, III
SUPREME COURT OF FLORIDA
TUESDAY, OCTOBER 31, 1978
CF MINING CORP., etc.,
REID STEWART, etc., et al.,
CASE NO. 54,753
District Court of Appeal,
This cause having heretofore been submitted to the
Court on jurisdictional briefs and portions of the record
deemed necessary to reflect jurisdiction under Fla. R. App.
P. 9.120, and it appearing to the Court that it is without
jurisdiction, it is ordered that certiorari is denied.
No Motion for Rehearing will be entertained by the
Court. See Fla. R. App. P.9.330(d).
ENGLAND, C.J., ADKINS, BOYD, HATCHET and ALDERMAN, JJ., concur
NOT FINAL UNTIL TIME EXPIRES TO
IF FILED, DETERMINED.
CF MINING CORPORATION, A
REID STEWART, as Property
Appraiser of Hardee County,
Florida; PROPERTY APPRAISAL
ADJUSTMENT BOARD OF HARDEE
COUNTY, FLORIDA; CURTIS
EZELLE, as Tax Collector of
Hardee County, Florida; and
J. ED STRAUGHN, as Executive
Director of the Department
of Revenue of the State of
Opinion filed April 21, 1978.
Appeal from the Circuit Court
Green, Jr., Judge.
FILE REHEARING PETITION AND,
IN THE DISTRICT COURT OF APPEAL
JANUARY TERM, A. D. 1978
CASE NO. 77-1182
for Hardee County; Oliver L.
M. David Alexander of Boswell, Boswell &
Conner, Bartow, for
Brooks P. Hoyt of Stichter, Staff, Hoyt, Riedel & Fogarty,
Tampa, for Appellee/Stewart; R. Earl Collins and John W. Burton
of Burton, Patarini & Collins, Wauchula, for Appellee/Property
Appraisal Adjustment Board of Hardee County and Curtis Ezelle;
and Daniel C. Brown, Assistant Attorney General, Tallahassee,
for Appellee/Department of Revenue.
IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT
IN AND FOR HARDEE COUNTY, FLORIDA
CF MINING CORPORATION, a )
REID STEWART, as Property )
Appraiser of Hardee County, )
Florida; PROPERTY APPRAISAL ) CASE NO. CA-G-76-387
ADJUSTMENT BOARD OF HARDEE )
COUNTY, FLORIDA; CURTIS EZELLE, )
as Tax Collector of Hardee )
County, Florida; and J. ED )
STRAUGHN, as Executive Director )
of the Department of Revenue )
of the State of Florida, )
The issues for judicial determination are whether Reid
Stewart, Property Appraiser of Hardee County, properly denied
agricultural assessment to the Plaintiff, and whether the
assessed value of the Plaintiff's property was computed
correctly, for the 1976 tax year. Of course, if the Plaintiff
is entitled to agricultural assessment, the basis upon which
Mr. Stewart appraised the property would be of no consequence.
The facts are not complicated. The Plaintiff purchased
the subject property on December 1, 1975, for the sum of
$101,547,592.00. The tract is approximately 20,000 acres in
size. The avowed intended use of the land by the Plaintiff
was to commence phosphate mining operations as soon as possible.
The Plaintiff promptly constructed several monitoring devices
on the land and began the assembly of two dragline machines.
The former owners had utilized the property for bona fide
agricultural purposes for many years. The sellers were
granted a lease-back, so that they could continue their
agricultural operations without interruption for, at least,
the period material to this action.
The purchase price was approximately $5,000.00 per
acre, many times more than the original agricultural assessment
of $86.00 per acre. The lease retained by the sellers was
not regarded as substantially renumerative in light of the
return which the land was required to produce in order to
justify the price paid.
The property surrounding Plaintiff's tract is generally
assessed agricultural. The Plaintiff requested, and received,
a divided assessment for the land surface and minerals
contained beneath the land surface. (See 193.481(2) Florida
Reid Stewart, Property Appraiser of Hardee County,
denied the Plaintiff's request for agricultural assessment.
He determined that the purchase price was three or more times
the agricultural assessment, and then concluded the Plaintiff
did not overcome the presumption that its land was not used
primarily for bona fide commercial agricultural purposes.
(193.461(4)(c) Florida Statutes).
Mr. Stewart assessed the property at $2,245.00 per acre.
This figure was the total of the assessed surface value,
amounting to $350.00, and the sub-surface mineral value of
$1,895.00 per acre. These figures were arrived at by a careful
review of similar land sales within the recent past. This
averaging method placed the Plaintiffs in a relatively favored
position, as compared to recent similarly situated purchasers
who obtained their land for the price of $2,245.00 per acre
or less. The Court can only conclude that the assessment
procedures applied by Mr. Stewart were appropriate under the
Mr. Stewart was correct in determining that the primary
commercial use of the land was not bona fide agricultural in
nature. He was correct in determining that the Plaintiff
failed to overcome the presumption provided for in Section
193.461(4)(c), Florida Statutes.
Our Republican Governmental Trichotomy can only function
well if each branch respects the area of responsibility assigned
by law to the remaining branches. The determination of Reid
Stewart, as Property Appraiser of Hardee County, must be
presumed correct, even if his decision is "fairly debatable".
The Board of Adjustment denied the Plaintiff's application for
relief, thereby confirming the decision of Mr. Stewart. The
matter is before the Court de novo. It is the Plaintiff's
burden to overcome the presumption of correctness accorded the
decision of Mr. Stewart.
It is apparent from the record that Reid Stewart is an
experienced, intelligent and determined County Property
Appraiser. These conclusions were arrived at from his testi-
mony regarding his background, tenure in office, and the work
he performed in making the subject appraisal.
The only conclusion possible under the facts of this
case, are that the mining operations commenced by the Plaintiff
established that the agricultural operations of the lessee
were entirely subordinate. There simply was not a good faith,
commercial agricultural use, as suggested in the case of
Waldon vs. Tuten, (Fla. DCA 2d, June 8, 1977).
The Court carefully considered the case of Waldon vs.
Tuten (Fla. DCA 2d, June 8, 1977), and the more recent case
of Straughn vs. K & K Land Management, Inc., (Fla. DCA 2d,
June 15, 1977). These cases are distinguishable.
1. The land has been used solely for agricultural
purposes since before 1935, until it was sold on December 1,
2. This agricultural use has been continuous.
3. The purchase price on December 1, 1975, was
$101,547,592.00, or approximately $5,000.00 per acre.
4. The tract of land is approximately 20,000 acres in
size. It is suitable for agricultural use.
5. There is evidence that the land is now fenced, and
with certain exceptions, being properly tended by the lessee.
6. The land is under lease, the term being for ten (10)
years, with the right of cancellation extended to either party
upon six (6) months notice at any time. The consideration was
payment, by the lessee, of taxes for the year, 1976, and other
years during the life of the agreement. The lease also contains
a provision for purchase of a public liability insurance policy
by the lessee.
7. The Plaintiff paid many times more for the subject
land than the previously assessed valuation. The Plaintiff
promptly instituted preparatory acts necessary for obtaining
the required governmental permit, and began other programs as
a prelude to actual mining operations.
It is, therefore,
ORDERED AND ADJUDGED that the relief sought by the
Plaintiff be and the same is hereby denied, and the Plaintiff
shall go without day.
DONE AND ORDERED in Chambers at Bartow, Polk County,
Florida, this 27th day of June, 1977.
OLIVER L. GREEN, JR., CIRCUIT JUDGE
R. Earl Collins, Esq., P.O. Box 426, Wauchula, FL 33873
John W. Burton, Esq, P.O. 426, Wauchula, FL 33873
Thomas M. Gallen, Esq, 701 llth Street West, Bradenton, FL 33505
Brooks P. Hoyt, Esq, P.O. Box 2798, Tampa, FL 33601
Caroline C. Mueller, Esq, Department of Legal Affairs, The
Capitol, Tallahassee, FL 32304
C. A. Boswell, Jr., Esq, P.O. Box 1578, Bartow, FL 33830
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JANUARY TERM 1981
E. C. FOGG, III, ALAN S. FOGG, NOT FINAL UNTIL TIME EXPIRES
and ELIZABETH LANE FOGG, TO FILE REHEARING PETITION
AND, IF FILED, DISPOSED OF.
BROWARD COUNTY, a political sub-
division of the State of Florida,
Opinion filed April 8, 1981
Appeal from the Circuit Court for Broward
County; Lamar Warren, Judge.
Alan S. Goldi Dexter W. Lehtinen, and
Clifford A. Schulman of Greenberg, Traurig,
Askew, Hoffman, Lipoff, Quentel & Wolff,
P.A., Miami, for appellants.
Gaylord A. Wood, Jr., Fort Lauderdale, for
Harry A. Stewart, General Counsel, John
Franklin Wade, Assistant General Counsel,
and Alexander Cocalis, Deputy General Counsel,
Fort Lauderdale for appellee, Broward County.
Jim Smith, Attorney General, and William D.
Townsend, and E. Wilson Krump, Assistant
Attorneys General, Tallahassee, for appellee,
Department of Revenue,
This case involves the tax status of approximately 270
acres of land in the Town of Miramar, Broward County, Florida.
The basic issue is whether the land in question should be
classified as agricultural for ad valorem tax purposes pursuant
to Section 193.461, Florida Statutes (1973).
Appellants, E. C. Fogg, III, Alan S. Fogg, and Eliza-
beth Lane Fogg, appeal from a final judgment entered in favor
of appellees, Broward County, the Broward County Property
Appraiser, and other public entities. This final judgment
denied appellants' requested agricultural classification. We
reverse and remand.
Appellants brought two actions for declaratory judgment
and injunctive relief seeking to have their property classified
and taxed as agricultural land for the years 1974 and 1975.
The trial court upheld the denial of the agricultural classifi-
cation by a detailed order and final judgment filed December 26,
1978 and appellants/landowners appeal urging numerous errors.
The appellee, property appraiser, contends the property was not
used for bona fide agricultural purposes, but was instead being
held for and used in the active process of development as a
high density residential community and that the property is thus
appropriately taxed at its fair market value rather than at the
lower agricultural assessment.
The facts surrounding the property are disputed. Depending
upon interpretation and resolution of conflicts, the property
may be viewed as a family farm or in the alternative as a devel-
opment tract for single family residences to be built. Appellants
assert the property was purchased in 1943 for $75,000. There
were initially 500 acres purchased which were in turn divided
into three parcels; "Pembroke" (180 acres), "Fogg", (270 acres),
and the third "Contiguous" parcel (31 acres). Prior to 1974,
all three parcels were classified as agricultural land and
taxed as such. On January 1, 1974, the Tax Assessor reassessed
the property, continuing to classify "Pembroke" and "Contiguous"
as agricultural but reclassifying the "Fogg" parcel as non-ag-
As indicated, conflict exists in the possible interpre-
tation of the evidence. The appellees contend the property
was actually acquired in a corporate dissolution occurring in
1971, whereby appellants became responsible for $580,000 in
mortgage indebtedness against the property. Appellees contend
that appellants made the decision to sell the property in 1972,
and since that time have engaged -in only incidental agricultural
use while in the process of selling the property and fully
cooperating in its development. These activities included
contracts for sale, applications of rezoning, hearings before
the City Council, an application for approval of the University
Park project to the South Florida Regional Planning Council,
engineering studies, approvals of solid waste plans and the
approval of bonds to be issued for improvements by the Hollywood
Reclamation District. The appellee, property appraiser, argues
the property is more aptly described as the "College Park
Planned Unit Development" rather than the "Family Farm."
In any event, agricultural pursuits were clearly being
carried out on the property at all times in question. Cattle
were being grazed by a tenant of the owner under a lease which
required the tenant to keep livestock on the property. The
lease was cancelable on 90 days' notice from the owner. In
addition, private owner horses were boarded by the owner
plaintiffs on approximately 100 acres which was not leased.
Simply put, the property was being used agriculturally while
the paper, permit and financial work was being done to turn
it into a planned unit development.
The trial involved the application of Section 193.461
(3)(b), (4)(a)(3) and (4)(c). These statutes provide in
relevant part as follows:
193.461 Agricultural lands; classification
and assessment. --
(3) (b) Subject to the restrictions set out
in this section, only lands which are used pri-
marily for bona fide agricultural purposes shall
be classified agricultural. "Bona fide agri-
cultural purposes" means good faith commercial
agricultural use of the land. In determining
whether the use of the land for agricultural
purposes is bona fide, the following factors
may be taken into consideration.
1. The length of time the land has been so
2. Whether the use has been continuous;
3. The purchase price paid;
4. Size, as it relates to specific agri-
5. Whether an indicated effort has been
made to care sufficiently and adequately for
the land in accordance with accepted commercial
agricultural practices, including, without
limitation, fertilizing, liming, tilling, mowing,
reforesting, and other accepted agricultural
6. Whether such land is under lease and, if
so, the effective length, terms and conditions
of the lease; and
7. Such other factors as may from time to
time become applicable.
(4)(a) The assessor shall reclassify the
following lands as nonagricultural:
3. Land that has been zoned to a nonagri-
cultural use at the request of the owner subsequent
to the enactment of this law; or
(c) Sale of land for a purchase price
which is three or more times the agricultural
assessment placed on the land shall create a
presumption that such land is not used primarily
for bona fide agricultural purposes. Upon a
showing of special circumstances by the landowner
demonstrating that the land is to be continued
in bona fide agriculture, this presumption may
The final judgment discusses these various statutes
and concludes the case is primarily governed by Section 193.461
(4)(c), Florida Statutes (1972 Supp.). The court found that
a sale at more than three times the value of the agricultural
assessment had occurred. As a result of this statute, the
court relied upon the presumption provided therein and concluded
the landowners had not shown the special circumstances required
under the statute to consider the property as agricultural.
The final judgment also holds that a rezoning to a
non-agricultural use had occurred. As a result, Section 193.461
(4)(a)3, Florida Statutes (1972 Supp.), was found applicable,
but the judgment is not couched in terms of reliance upon
this statute which is mandatory in nature.
The final judgment also concludes that the property was
not used for "bona fide agricultural purposes" with the
statutory definition of "good faith commercial agricultural
use of the land." The latter finding appears to be an indepen-
dent factual determination which is not based on either the
sale statute or the rezoning statute.
The tension between real estate development and
continued agricultural use of land for tax purposes has
promoted substantial litigation in the growing geography and
case law of Florida. Although presented in slightly different
factual contexts, the prevailing question is whether property
soon to be used in non-agricultural development may be maintained
as agricultural land and so taxed until the first shovel is
actually turned in non-agricultural pursuit. We start by
surveying the cases on the subject.
In Straughn v. Tuck, 354 So.2d 368 (Fla. 1978), the
Supreme Court considered the constitutionality of Section
193.461(3), Florida Statutes (1973). The Court concluded that
the statute was constitutional and that "use is still the guide
post in classifying land" for agricultural purposes under the
taxing statutes. The Court concluded as follows:
Agricultural use is now and has always been
the test. "Commercial agricultural use" simply
adds another factor, i.e., profit or profit
motive, which may be considered by the tax
assessor in determining whether or not a claimed
agricultural use is bona fide. It does not, as
appellees suggest, limit agricultural classifi-
cation to commercially profitable agricultural
Shortly after the Tuck decision, the Supreme Court
decided Roden v. K & K Land Management, 368 So.2d 588 (Fla. 1978).
There, K & K Land Management bought approximately 350 acres of
producing citrus groves for six times the agricultural assess-
ment. Twenty-five acres of highway frontage contained in the
350 acres were developed into an amusement park. The remainder
of the grove was used for continued citrus production. The
issue before the trial court was whether the taxpayer had
overcome the presumption on non-agricultural use established
by the sale statute, Section 193.461(4)(c), Florida Statute.
(1979). The trial court concluded the property should be
classified agricultural and so taxed. On review, the Court
again stressed that agricultural use was the crucial consider-
ation and that profit or profit motive was not a necessity.
The decision in First National Bank of Hollywood v. Markham,
342 So.2d 1016 (Fla. 4th DCA 1977), holding that commercial
agriculture meant profitable agriculture was disapproved. In
Fisher v. Schooley, 371 So.2d 496 (Fla. 2d DCA 1979), the
Second District Court of Appeal considered a situation where
property was bought at more than three times its agricultural
assessment for purposes of shopping center development. Before
the sale and as a condition thereof, the zoning on the property
was changed from "agricultural" to "commercial." The zoning
change occurred in 1971 prior to the effective date of
Section 193.461(4)(a)3, Florida Statutes (1972 Supp.). After
the rezoning and purchase,, the new owner attempted to develop
the property as a shopping center. The services of a land
planner were engaged and market, population and traffic studies
and surveys were done. Tentative commitments from prospective
tenants of the planned shopping center were solicited. Early
loan commitments were secured and financial preparation was
done. The owner had every intention of devoting the property
to future development as a shopping center as soon as possible.
While engaged in these processes, the land was actually used
for the growing of vegetables. Both before and after the
sale, the property was leased to the same vegetable farmer
who grew crops on it. In short, the property was being used
for agriculture while the paperwork was being done to build
a shopping center on it. The court held the proper classifi-
cation to be agricultural and concluded actual use was the
determinative factor rather than future motive or expectancy.
To the same effect is Department of Revenue v. Goembel,
382 So.2d 783 (Fla. 5th DCA 1980). The land in question there
was bought for more than three times its agricultural assessment
and in an attempt to establish an agricultural classification,
the owner showed continued agricultural use as a citrus grove
at a minimal profit. Once again, it was held that commercial
success was not required for an agricultural classification
and that use as a grove while fully engaged in paper attempts
at future development did not require a non-agricultural
A different line of cases is present in Bass v. General
Development Corporation, 374 So.2d 479 (Fla. 1979), and Harbor
Ventures, Inc. v. Hutches, 366 So.2d 1173 (Fla. 1979). In
Bass the real estate was under a cattle grazing lease and was
exclusively devoted to agricultural activity. The landowner
filed a subdivision plat for a portion of the land and relying
upon Section 193.461(4)(a)4, Florida Statutes (1975), the
property appraiser reclassified it as non-agricultural. The
Supreme Court considered the case and found Section 193.461
(4)(a)4, Florida Statutes (1975), to be unconstitutional in
that it created an irrebuttable presumption of non-agricul-
tural use based upon the mere recording of a subdivion plat.
The Court found that the recording of a subdivion plat had
no real or substantial relationship to the actual use of the
land. In Bass the platting statute was the sole basis for
reclassification of the property as non-agricultural and the
statute was held unconstitutional. In Harbor Ventures, Inc.
v. Hutches, supra, the Court declined to decide a constitu-
tional attack on Section 193.461(4) (a) 3, Florida Statutes
(1973), the zoning subsection which requires reclassification
as non-agricultural when land "has been zoned to a non-agri-
cultural use at the request of the owner...."
We now apply the above precedents in reviewing the
present judgment. With all respect for the trial court, we
conclude the sale statute, Section 193.461(4) (c), Florida
Statutes (1972 Supp.), was improperly applied. The judgment
makes it clear that although various contracts were signed
on the property, no closing ever occurred and legal title
never actually passed from the present owners to the various
prospective purchasers who intended to develop the property.
The owners, who have not yet sold the property, are the
contesting taxpayers here and the sale statute applies as
against a purchaser of the property. See Bass v. General
Development Corporation, supra, and Roden v. K & K Land
Management, Inc., supra. Appellees argue that a contract
purchase holds equitable title and that a "sufficient sale"
occurred under the facts of this case to invoke the presumption
under the sale statute. We disagree and hold that Section
193.461(4)(c), Florida Statutes (1972 Supp.), applies only to
a completed sale of realty. The effective transfer of legal
title is thus a necessity before the new owner has the burden
of showing "special circumstances" warranting an .agricultural
classification. The practicality and necessity of this ruling
is demonstrated by the facts in this case. At least four
presumably binding contracts were signed by appellants but
each contract expired without a closing. We do not believe
the Legislature intended to bar land from an agricultural
classification for tax purposes upon the mere signing of a
contract to sell it. The statute uses the words "sale of land
for a purchase price" and we hold this language means a
completed sale rather than the signing of a contract for a
future sale. We believe this limited and more narrow construc-
tion of the statute is consistent with the legislative purpose.
The trial court thus erred in employing the presumption
established by the sale statute before a sale actually took
We next consider the rezoning statute, Section 193.461
(4)(a) 3, Florida Statutes (1972 Supp.), which the trial court
also found applicable. The court concluded that the property
had been rezoned from "agricultural" to "planned unit develop-
ment" (PUD). This PUD classification was residential in
nature. The City of Miramar clearly granted the rezoning
request and did in fact rezone the property "P" on the City's
zoning records. Appellants urge the rezoning was subject
to various conditions including the dedication of contain land
for public recreational purposes and compliance with future
recommendations of city officials and all manner of future
city ordinances and other uncertain future requirements.
Appellants thus contend the trial court erred in concluding that
the property had been rezoned because numerous steps and other
conditions were necessary before the property could actually
be used, that is, before buildings could actually be constructed
upon it. The question of whether the property was actually
rezoned was a mixed one of fact and law. The trial court
determined it based upon the statute and from the conflicting
evidence presented. Abundant evidence appears in the record
supporting the trial court's conclusion that the property was
in fact rezoned and we are not prepared to reverse this
factual or legal conclusion. Affirmance of the finding of
rezoning, unfortunately, does not answer the question. The
statute speaks in terms of land zoned to a "non-agricultural
use." The statute is not clear as to whether this means that
agriculture is barred from being carried on or whether it
means that agriculture and other non-agricultural pursuits may
be simultaneously carried on. Hypothetically, if property
is rezoned from "agricultural" to a single family residence
classification and the new zoning is strictly enforced, then
the agricultural use must cease. In the instant case, the
City's ordinance on PUD zoning clearly does not contemplate
agricultural use within the residences, professional offices
and open spaces required in the PUD zone. Notwithstanding
the terminology of the PUD ordinance, other documentation in
the record shows that the City of Miramar herein condoned
the continued agricultural use on the property in question
at least pending its actual use as a residential development
under the PUD zoning. Thus, although perhaps the cows should
have gone, they were allowed by the City to stay for at least
the two years in question.
This leads us to a constitutional question regarding the
rezoning statute. Although not raised before the trial court,
Bass v. General Development Corporation, supra, is urged by
appellants in support of an argument that the rezoning statute
is unconstitutional for the same reasons as the platting
statute. By analogy, appellants argue that if platting has
nothing to do with actual use then zoning should be similarly
considered and the zoning statute is equally unconstitutional.
Obviously, if "non-agricultural" means that agriculture is
actually barred and may not be carried on, then the statute
appears reasonable. On the other hand, if a change to
"non-agricultural" zoning does not interfere with actual
existing agricultural pursuits on the land, then the reasoning
of Bass v. General Development Corporation, supra, would appear
applicable. Since these issues were not presented or tried
before the Circuit Court, we decline to answer the constitutional
question which appellants now urge. We conclude that the
rezoning here did not have any effect on the actual use of
the property in agriculture and that the change in zoning from
one designation where agriculture was permitted to another
designation where agriculture was also permitted did not
require the reclassification of the property as non-agricultural
as a matter of law pursuant to the statutory rezoning provisions.
The third finding of the trial court was that the
property in question was simply not used for bona fide
agricultural purposes because it was not in good faith commercial
agricultural use. We conclude that this finding cannot stand
in view of the trial court's erroneous reliance upon both the
sale statute and the rezoning statute. Since the trial court
improperly employed these two statutory provisions, the further
factual conclusion as to lack of good faith commercial agricul-
tural use must fall. We conclude that the property in question
was actually being used at all times in question in agriculture.
Although the property had been rezoned, the rezoning did not
disturb its agricultural use. Although contracts had been
signed for the sale of the property, it had not been actually
sold. Under the statutes and the precedents construing them,
actual use remains the test and we conclude that the owners
herein were entitled to the agricultural classification for
the years in question. We, therefore, reverse the judgment
herein and remand for further proceedings consistent with this
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
DOWNEY and GLICKSTEIN, JJ., concur.