• TABLE OF CONTENTS
HIDE
 Front Cover
 Title Page
 Abstract
 Introduction
 Importance of agriculture in establishing...
 Classification and assessment of...
 Abuses of agricultural classif...
 Survey of county property...
 Estimate of abuse
 Characteristics of parcels identified...
 Suggestions for changes
 Summary
 Court findings supplied by county...






Group Title: Staff paper - Food and Resource Economics Department - 242
Title: Results of a survey evaluating abuses of agricultural classified use assessments in Florida
CITATION PAGE IMAGE ZOOMABLE PAGE TEXT
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Permanent Link: http://ufdc.ufl.edu/UF00056201/00001
 Material Information
Title: Results of a survey evaluating abuses of agricultural classified use assessments in Florida
Series Title: Staff paper
Physical Description: 70 p. : ; 28 cm.
Language: English
Creator: Colette, W. Arden
Publisher: Food and Resource Economics Dept., Institute of Food and Agricultural Sciences, University of Florida
Place of Publication: Gainesville
Publication Date: 1983
 Subjects
Subject: Land value taxation -- Florida   ( lcsh )
Tax assessment -- Florida   ( lcsh )
Agriculture -- Taxation -- Florida   ( lcsh )
Genre: government publication (state, provincial, terriorial, dependent)   ( marcgt )
non-fiction   ( marcgt )
 Notes
Statement of Responsibility: by W. Arden Colette.
General Note: "May 1983."
Funding: Staff paper (University of Florida. Food and Resource Economics Dept.) :
 Record Information
Bibliographic ID: UF00056201
Volume ID: VID00001
Source Institution: Marston Science Library, George A. Smathers Libraries, University of Florida
Holding Location: Florida Agricultural Experiment Station, Florida Cooperative Extension Service, Florida Department of Agriculture and Consumer Services, and the Engineering and Industrial Experiment Station; Institute for Food and Agricultural Services (IFAS), University of Florida
Rights Management: All rights reserved, Board of Trustees of the University of Florida
Resource Identifier: aleph - 001670098
oclc - 22467363
notis - AHY1937

Table of Contents
    Front Cover
        Front Cover
    Title Page
        Page i
    Abstract
        Page ii
    Introduction
        Page 1
        Page 2
        Page 3
    Importance of agriculture in establishing the county tax base
        Page 4
        Page 5
    Classification and assessment of agricultural land
        Page 6
        Page 7
    Abuses of agricultural classification
        Page 8
    Survey of county property appraisers
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
    Estimate of abuse
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
    Characteristics of parcels identified as abuse
        Page 21
        Page 22
        Page 23
    Suggestions for changes
        Page 24
        Page 25
    Summary
        Page 26
        Page 27
    Court findings supplied by county property appraisers
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
        Page 39
        Page 40
        Page 41
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Full Text























RESULTS OF A SURVEY EVALUATING ABUSES OF AGRICULTURAL
CLASSIFIED USE ASSESSMENTS IN FLORIDA

by

W. Arden Colette*


Staff Paper 242


May 1983


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
of Florida.



Food and Resource Economics Department
Institute of Food and Agricultural Science
University of Florida
Gainesville, Florida 32611













ABSTRACT


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









2

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

method.

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


Alachua
Baker
Bay
Bradford
Brevard
Broward
Calhoun
Charlotte
Citrus
Clay
Collier
Columbia
Dade
DeSoto
Dixie
Duval
Escambia
Flagler
Franklin
Gadsden
Gilchrist
Glades
Gulf
Hamilton
Hardee
Hendry
Hernando
Highlands
Hillsborough
Holmes
Indian River
Jackson
Jefferson
Lafayette


8.75
4.48
12.57
2.73
2.97
7.52
2.53
3.75
9.21
3.83
2.82
2.39
4.51
3.46
3.36
5.88
4.64
3.92
7.14
2.30
4.15
4.12
3.08
4.23
2.27
2.89
3.74
1.54
4.14
2.44
2.33
2.16
2.50
1.77


Lake
Lee
Leon
Levy
Liberty
Madison
Manatee
Marion
Martin
Monroe
Nassau
Okaloosa
Okeechobee
Orange
Osceola
Palm Beach
Pasco
Pinellas
Polk
Putnam
St. Johns
St. Lucie
Santa Rosa
Sarasota
Seminole
Sumter
Suwanee
Taylor
Union
Volusia
Wakulla
Walton
Washington


1.41
4.87
5.60
2.11
1.61
1.29
3.38
2.71
2.32
1.60
2.13
1.57
2.29
5.32
3.22
3.47
3.17
3.52
1.51
5.82
2.93
2.04
1.32
8.59
3.67
3.36
3.65
1.91
3.53
2.80
3.15
1.51
2.78









4

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


Alachua
Baker
Bay
Bradford
Brevard
Broward
Calhoun
Charlotte
Citrus
Clay
Collier
Columbia
Dade
DeSoto
Dixie
Duval
Escambia
Flagler
Franklin
Gadsden
Gilchrist
Glades
Gulf
Hamilton
Hardee
Hendry
Hernando
Highlands
Hillsborough
Holmes
Indian River
Jackson
Jefferson
Lafayette


3.1
61.1
3.5
30.1
2.1
.35
62.0
2.1
2.0
5.1
1.8
24.7
.8.
46.7
62.6
.66
2.7
9.1
17.0
30.8
54.5
50.1
24.1
51.2
29.2
39.7
6.2
22.1
3.2
67.5
10.1
43.8
68.6
82.5


Lake
Lee
Leon
Levy
Liberty
Madison
Manatee
Marion
Martin
Monroe
Nassau
Okaloosa
Okeechobee
Orange
Osceola
Palm Beach
Pasco
Pinellas
Polk
Putnam
St. Johns
St. Lucie
Santa Rosa
Sarasota
Seminole
Sumter
Suwanee
Taylor
Union
Volusia
Wakulla
Walton
Washington


28.5
.99
3.9
35.5
53.2
69.1
4.8
11.9
8.1
.02
14.6
3.7
33.9
1.9
18.5
3.4
6.6
.14
9.1
6.5
6.3
10.8
5.2
.72
1.8
29.5
45.2
57.8
72.5
3.3
23.9
28.1
43.8








6

in Florida. This represents 47.8% of the counties in the

state.



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;









7

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

lease; and

7. Such other factors as may from time to time become

applicable."

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









8

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.









9

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

problem.



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
Survey.


Alachua
Baker
Bay
Brevard
Broward
Calhoun
Charlotte
Citrus
Clay
Collier
Dade
Dixie
Duval
Escambia
Gadsden
Gilchrist
Gulf


Hamilton
Hardee
Highlands
Holmes
Indian River
Jackson
Lafayette
Lake
Leon
Liberty
Madison
Marion
Martin
Monroe
Okalooka
Okeechobee


Osceola
Pzlm Beach
P sco
Polk
Putnam
Santa Rosa
Sarasota
Seminole
St. Johns
St. Lucie
Sumter
Suwanee
Taylor
Union
Volusia
Wakulla


__ _









11

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

value.

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
Survey. 02


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
Value.



Agricultural Ratio of Just Value : Classified Use Value
Land Value as ... ......
a Percent of Greater Between Less Than
Total Taxable
Value Than 5:1 3:1 and 5:1 3:1

Baker Calhoun
Greater Than Dixie Holmes
Gilchrist Lafayette
50% Hamilton Liberty
Union Madison
Taylor


Between Sumter Gadsden
Suwanee Hardee
Jackson
25% and 50% Jackson
Lake
Okeechobee


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
Seminole Polk
Wakulla Santa Rosa
St. Johns
St. Lucie
Volusia









14

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
Classification.


Percent
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


No response
or unknown 24

49

aOne county reported abuses on all four of their ag parcels.









16

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

10 percent.

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
Than
50% (0 10) (0 .2) (0 10)


Between 2.5 1.0 1.4
25% and
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)









18

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
Agricultural
Land Value of of Cumulative
Attributed
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

23

No response
or unknown 26

49


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)

(Percent)

Greater 3 0 2.5
Than
50% (0 10) (0 0) (0 10)


Between 0.5 0.7 0.7
25% and
50% (0 1) (0 2) (0 2)


Less 14 7 1.2 7
Than
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)









21

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

agricultural use."

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.








23



TABLE 8. Characteristics of Parcels and Uses That
County Property Appraisers Associated With
Abuses of Agricultural Classification.





Characteristic Number of Responses


Size 31

Bona fide agriculture 11

Primary use 11

Location 8

Sale price 4

Speculation 4

Income 3

Profitability 2












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


Redefine agriculture
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












Summary


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

ratio.

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









27

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.



























APPENDIX


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.,

Petitioners,


vs.


: CASE NO. 51,954


K & K LAND MANAGEMENT, INC.
A corporation.


: DCA Case No. 76-1129


Respondent


Opinion filed July 20, 1978

Writ of Certiorari to the District Court of Appeal, Second
District.

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,
Petitioners.

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.



BOYD, J.

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

case, too.

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

classification.

The decision of the District Court is affirmed. First








32


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, *
*
APPELLEES *
*
*********************************

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
Appellants.

Harlan Tuck of Giles, Hedrick and Robinson, Orlando, Florida,
for Appellees.










HATCHETT, J.

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
non-agricultural.



(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
Statutes (1975).

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.,


2
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

purpose.

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
following factors:
(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
Trustee,

Plaintiff,

vs.

JAMES W. BASS, et al.,

Defendants.


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

follows:

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

County.

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.


Circuit Judge









IN THE CIRCUIT COURT FOR
ST. LUCIE COUNTY, FLORIDA

CASE NO. 78-561-CA


JOSEPH J. SCITURRO, as
Trustee,

Plaintiff,

vs.

JAMES W. BASS, et al.,

Defendants


FINAL JUDGMENT

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

property.

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
TOTAL $298.90


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.




Circuit Judge



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
Trustee,

Plaintiff,

vs.

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
REVENUE,

Defendants


COMPLAINT

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,

Florida.

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

as follows:

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
County, Florida.

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

$19,500.00.

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

$130,220.00 $1,692.24

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

purposes.

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

Property Appraiser.

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
Plaintiff

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.




Notary Public

My commission expires: 11-18-79


FEE, KOBLEGARD & TEEL, P.A.
Attorneys for Plaintiff
Post Office Box 1000
Fort Pierce, Florida 33450


BY
R. N. KOBLEGARD, III










SUPREME COURT OF FLORIDA

TUESDAY, OCTOBER 31, 1978


CF MINING CORP., etc.,

Petitioner,

vs.

REID STEWART, etc., et al.,

Respondents


CASE NO. 54,753

District Court of Appeal,
Second District
77-1182


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
corporation,

Appellant,

V.

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
Florida,

Appellees


Opinion filed April 21, 1978.

Appeal from the Circuit Court
Green, Jr., Judge.


FILE REHEARING PETITION AND,


IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JANUARY TERM, A. D. 1978


CASE NO. 77-1182


for Hardee County; Oliver L.


M. David Alexander of Boswell, Boswell &
Appellant.


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.


PER CURIAM.









Affirmed.



DODSON,









IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT
IN AND FOR HARDEE COUNTY, FLORIDA

CF MINING CORPORATION, a )
corporation, )
)
Plaintiff, )
)
vs. )
)
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, )
)
Defendants )
)


FINAL JUDGMENT

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

Statutes).

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

circumstances.

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.

To summarize:

1. The land has been used solely for agricultural

purposes since before 1935, until it was sold on December 1,

1975.

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


Copies furnished:

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.
Appellants,

vs.

BROWARD COUNTY, a political sub-
division of the State of Florida,
et al.,

Appellees


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
appellee, Markham.

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,


BERANEK, J.

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-

ricultural.

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
utilized;
2. Whether the use has been continuous;

3. The purchase price paid;

4. Size, as it relates to specific agri-
cultural use;

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
practices.

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
be rebutted.

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
operations.

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

classification.

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

place.

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

opinion.







70


REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.









DOWNEY and GLICKSTEIN, JJ., concur.




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