SHOW ME THE LEAD

     These were the very words uttered by Bexar County Appraisal District Appraiser Joel Martin in the opening moments of his formally requested “Inspection” visit to this Bexar County public shooting facility, Cedar Ridge Range.

     In the following 20 minute interval this so called ”Appraisal Expert” rode around in a vehicle, on the property and took some pictures of the structures.

     The one, very brief, time he exited the vehicle to walk around and inspect the property he never once bent over to look, sift the soil or do any reasonable action to examine any part of the 59+ acres to document or deny the existence of any lead contamination.

This “Property Site Inspection” had been granted to the Bexar Appraisal District by this property owner at the conclusion of the legal deposition of this very same “expert”, Joel Martin.

    Mr. Martin, as a senior commercial shooting range appraiser, had several weeks earlier presented to an Appraisal Review Board hearing panel how it was, in his judgment, suitable to deny that there was any lead contamination on Cedar Ridge Range.
 
    He further implied to the Appraisal Review Board members that in the previous 19 years, during many assorted informal and official, under oath, formal ARB hearings that the owner had essentially committed fraud by presenting a document from the TCEQ, at each hearing, which clearly stated that this range property was under an approved remediation plan and that testing by this official Texas State level agency had clearly documented lead contamination on the range property.

     Since 1997, in those previous 19 years since acquiring the range property, the owner, had worked under a remediation agreement. This plan for an ongoing remediation to govern the lead pollution created by the “recreational shooting” activities on the property was approved by the Texas State environmental agency (formerly called the Texas Natural Resource and Conservation Commission – TNRCC, but is now called the Texas Commission on Environmental Quality – TCEQ).

     In the ARB hearing the three (3) totally confused and now completely hoodwinked ARB board members (who are certified under Texas Law by a whopping grand total of 8 hours training) deliberately chose to overlook that TCEQ documents as well as the additional 19 years of precedents established by many other appraisers (in both Comal and Bexar Appraisal Districts) and also by numerous other previous ARB board members.

    They denied any validity to the property owner arguments and evidence. They then worked their calculator magic and “generously offered “ that they would “only” recommend a 270.9% property appraisal increase for 2016 instead of the original Martin appraisal offer of a 463% increase. That offer was immediately and absolutely rejected.

     Henceforth, a lawsuit was promptly filed in the State District Courts against the Bexar Appraisal District.

    This lawsuit filing resulted in our extensive research into the Texas Property Tax laws that will be present below for your own verification and analysis.

     You might ask, does this case affect me, my business or other range owners/operators in the state of Texas?

     Might this appraisal issue even affect the users of outdoor shooting ranges whether public, private, law enforcement, etc? Without a doubt, the answer is a resounding, “YES”!

     That answer is both obvious and ominous. I think that most of you will draw similar conclusions as to why this is occurring. The politics and money involved in this type of taxation directly delineates and accentuates legitimate Texas range owner concerns.

     In short, many (though not all) County Tax Appraisal Districts throughout the state are attempting to financially burden shooting ranges with tax appraisal assessments that ignore proper application of pertinent Texas Property Tax laws. Whether they do so out of ignorance, incompetence or otherwise more sinister reasons actually matters not one whit. However it does mean that many range owners and operators will be getting the proverbial shaft resulting in a loss of their hard earned funds.

     It is intended that the below outlined information and knowledge be used to successfully guide and encourage all Texas range/owners to fight and win against any abusive appraisals, which are more often than not, unlawful, improper or inflated assessments of the value of your lands and businesses.

     Many, if not most range owners/operators, do not know or have yet to invoke the most directly applicable Texas property law regarding shooting range values. This law definitively requires property tax appraisers to give shooting range property owners full consideration for the recreational lead contamination produced and contained on the land at their shooting ranges.

     Please check out and verify the information below.  You likely will agree that it is the most pertinent part of the Texas Property Tax Code governing your shooting range property appraisal value:

Texas Property Tax Code – Sec. 23.14.

APPRAISAL OF PROPERTY SUBJECT TO ENVIRONMENTAL RESPONSE REQUIREMENT.
      (a) In this section, “environmental response requirement” means remedial action by a property owner to correct, mitigate, or prevent a present or future air, water, or land pollution.

      (b) In appraising real property that the chief appraiser knows is subject to an environmental response requirement, the present value of the estimated cost to the owner of the property of the environmental response requirement is an appropriate element that reduces market value and shall be taken into consideration by the chief appraiser in determining the market value of the property.

Added by Acts 1993, 73rd Leg., ch. 403, Sec. 1, eff. Aug. 30, 1993.

      Consider how straightforward and simply stated are the requirements under this law.

    Notice that there is no mention that any bureaucratic oversight is even required.

    It even gives legal notice that costs to prevent “future” contamination must also be considered.

    Please notice that the word “shall”  legally means that they MUST give you that monetary/value consideration in their appraisal value evaluation.

    What this will mean to many ranges is that, under this Texas law, they actually have contaminated land that has NEGATIVE VALUE. Let that sink in for a moment. Negative is not taxable. It is NEGATIVE because the cost of a remediation will be astronomically higher than any sale price that could be realized for the property.

    This does not necessarily mean all value is lost however.

    According to the state officials involved during original negotiations on the remediation actions for Cedar Ridge Range, they stated that their legal assessment was that they could see only a few legal ways that this type of contaminated land could be handled.

This is what they outlined as legal options:

(1) The first and most obviously acknowledged way was to follow the Federal Resource and Reclamation Act.  This is a federal U.S. law which grants that if lead is being produced by a “recreational activity”, ie…. during fishing, hunting, shooting activities, it is not, by law, categorized as “toxic” unless it is “discarded or abandoned”. A simple, ongoing effort of remediation (lead recovery actions) would mean that it was not discarded nor abandoned and that a shooting range could continue in the range business, essentially forever.

(2) Another course of action is that the land could be sold to another party who would be legally advised (required under Federal law, any failure to do so is a felony) of the lead contamination and the new owner would agree to assume the legal responsibility to clean up the contamination. This would only be required if the land were to be put to any use other than a shooting range. Not a good option for any new owner who can simply go elsewhere and invest in another property that is not contaminated thereby dodging the massive costs and the legal hassles.

    The original owner, himself, could pay for or clean the property so that it could then be sold and documented as uncontaminated. The cost for that is massively prohibitive since it would cost much more than would ever be recovered in any subsequent sale of the property.

(3) The last option is that the lead contamination can be “capped” with at least 4” of uncontaminated soil brought in to bury the existing lead.

    Many shooting ranges, including the Cedar Ridge Range location, are located in flood plains and every flood event that washes away the soil cap means you start over when the lead contamination is again exposed.

    Think of the cost of importing fresh “uncontaminated soil”, transported and distributed over the acres of contaminated land. Again, a far-fetched pipe dream in both cost and time.

     Uniquely, options #2 and #3 are actually useful information/evidence that should be offered during a property protest hearing, as further proof of the actual DIMINISHED or NEGATIVE appraisal value of the land, thereby substantiating a claim that the costs of any remediation far outweighs the appraisal and resale values.

     There is much more offered below that was found during our lawsuit research that will be of additional value to Texas range owners/operators, so in no particular order, please consider the following information:

INFORMATION FOR PROTESTING APPRAISALS BOTH COMMERCIAL AND RESIDENTIAL

a) You should request, as per Texas law, that your Appraisal District provide you with their evidence package at least 10 days prior to your informal and formal ARB hearings.

    Any evidence not given to you in this request, by law, can not be used against you at your protest hearings. This forces the appraisers to actually do their job or will set up a cause of action for a subsequent lawsuit..

    Appraisers must present good evidence instead of innuendo or misleading representations. Knowing exactly what the appraisers evidence and arguments will be allows for you to offer proper counter evidence or even force a negation of their improperly applied evidence to your appraisal.

b) Know that you can cross examine your appraiser opponent during the ARB hearing.  This effectively allows you to counter and confront their “evidence”.  Many appraisers do not like to be effectively questioned since they consider themselves to be the ultimate “expert” in the hearing room.

c) Know that those 3 ARB board members, the supposedly unbiased citizens, who will act as judges at your “adversarial” ARB hearing are only required to attend an 8 hour state certification course. This course ostensibly prepares them to make life and business changing decisions in regards to your property tax bill.

    Bear in mind that these same “ARB Officials”, under state law, have the same exact immunity as our duly elected state district court judges and that these folks are appointed, not elected.

    They are also being paid for their time and expenses by the very county they are suppose to consider rendering a possible unfavorable judgment against.

    ARB members sit, day after day, surrounded by Appraisal employees and most likely will be holding your hearing with the “Home Court” advantage inside of County owned facilities. There you will be surrounded by assorted officious Tax Appraisal persons and law enforcement personnel. To the normal property owning citizen this can be overwhelming and intimidating in many circumstances.

d) Know that you can videotape/audiotape your own hearing, on your own equipment, and that they (the ARB) is also required, by law, to have their own ability to at least record your formal ARB hearing.

    Furthermore, they must provide you with a verified copy, on request, for which you will likely be charged a fee.

e) Know that your hearing is considered, by law, a “public hearing”.

    Bring along all the moral or technical support that you want. Be aware that usually the ARB members, tax appraisers, etc. really don’t appreciate accommodating any extra witnesses to their actions but the law is the law so stand your ground.

    Be advised that your “witnesses” can have many motivations and they don’t have to reveal them to ARB officials even if requested. They would only be required to I.D themselves formally if they were offering testimony during the hearing.

    Simple non-testifying witnesses to the protest process can also help document both the ARB Board members and the Tax Appraisers actions for possible use/testimony in any future lawsuit action.

    A witness could just simply be just another like minded property owner who is gathering more data and information on hearing processes and any applicable property appraisal evidence that could be used in his own protest hearings on these very same issues at a later time on their own property.

e) Know that the ARB members will likely attempt to enforce a time limit in your hearing.

    This is because “they, the ARB/Appraisal Districts” are under a strict state mandated deadline to get their appraisal results “certified” by a state law mandated certification date.

    This is done so that the taxing entities,thoe  benefiting from the theoretical taxes “generated” by their certified appraisals, can produce a budget and confirm their ability to spend those tax dollars.

    Bear in mind that the more property owners who protest, the less time they will want to allow you for your own protest.

    Know also that there is absolutely no State law which limits your time to present your arguments. The so called imposed “time limit” is just an administrative decision made in which the property protesters normally get no input.

     Their argument will be presented that you are “hurting” other property owners who are also going to protest, by taking “their” allotted time. This argument is completely bogus, without legal backing, and actually only serves their purposes, very much to your likely detriment.

f) Know that you MUST file your protest paperwork on time.

    It is recommended that you file the protest forms as close to the deadline as possible so you can get assigned a hearing time that is much later in the hearing processes. This will get you more preparation time and this action also enhances the possible advantage that any prior decisions, on another like property protest, will be beneficial to you and would now would be available at your hearing. That evidence might aid and bolster your protest claim.

g) Know that your appraiser will not likely have any clue of what your property actually looks like or its condition. Few property tax appraisers actually ever leave their office to inspect any properties.

    Most of their knowledge exists only because they looked at an aerial photo, of course, paid for by your tax dollars. Be also aware of how heavily they rely on computer generated “profiles”, also paid for by your tax dollars.

    Understand that, by law, you are not required to inform any tax appraisal district of the purchase or sale price of any real property and they absolutely hate this law.

    You should never, ever, allow appraisers to gain any information about your transactions, income, etc. from any sources such as publicly accessible websites hosted by realty sale sites or MLS. Do not give them access to any information which allows them to mathematically guess/extrapolate a sale price. Ensure particularly that they have no access to loan institution records containing or publishing your loan data. Make it a condition of any property sale contract that no information is disclosed.

h) Know how many different property appraisals that any particular appraiser handles during an appraisal cycle. In the Cedar Ridge Range case, the senior “expert” appraiser, Joel Martin, and his only one “assistant” supposedly appraised 11,000+ individual commercial properties every year.

    You do that math (when you stop laughing) and you will find it ludicrous as to how much time that they could have actually spent doing an appraisal, if any, let alone accurately appraising your land.

    They definitely know of this obvious flaw and will not generally acknowledge this condition exists because of the truly detrimental political optics. It also shows they seldom will make any real appraisal effort.

i) Know that if a Tax Assessor/Collector were to try to foreclose on your property, if you do not pay the exorbitant taxes, fees, interest, etc. generated by a improper appraisal hearing result, which had denied your contaminated land considerations, as required under Texas law then a whole new nightmare springs into the governmental vision.

    The County tax assessor-collectors (not the tax appraisers) are required, again by Texas law, to only foreclose if there is a real monetary value in a foreclosure action.

    They would and should be well aware that if they stupidly, greedily seized, by foreclosure proceedings, your contaminated land that they would now be responsible for funding the clean up since the lead would now be, under Federal law, considered “toxic” since it is now to be legally considered as “discarded and abandoned”.

    Sure they could try to sue you to help them fund their now required lead cleanup but what assets would you have that they could garner once your land and business was essentially stolen and you filed for bankruptcy.

    The other big concern for the tax assessors is that it is their job to actually “generate” collectible tax revenue for those tax entities that they supposedly represent. If the Tax Assessor suddenly, stupidly, grabbed a “liability property” and not a viably marketable asset then, by law, the represented tax entities can actually turn rabid and sue their very own tax assessor/collectors office.  The governmental overreach to take your land and business could come around to bite them in the proverbial ass. This legal dilemma is a considerable leverage to force them to deal with your property appraisal in a reasonable manner. Just don’t bank on them being smart enough to know it.

j) Know that the tax assessors further have to comply with the Texas laws pertaining to the prescribed legal processes for foreclosure and seizure. Texas law dictates that 5 years of consecutive non payment of taxes must first pass and that the land has to actually be documented as abandoned for at least a year, with no actions showing any owner maintenance or any business activities or human occupation, before they can ask for a court judgment or exercise a tax lien.

See the below law:

Texas Property Tax Code – Section 33.911
PROPERTY SUBJECT TO SEIZURE BY COUNTY.

(a) After notice has been provided to a person, the person’s real property, whether improved or unimproved, is subject to seizure by a county for the payment of delinquent ad valorem taxes, penalties, and interest the person owes on the property if:
           (1) the property:
               (A) is in the county;
               (B) is not in a municipality; and
               (C) has been abandoned for at least one year;

           (2) the taxes on the property are delinquent for each of the preceding five years; and

           (3) the county tax assessor-collector determines that seizure of the property under this subchapter for the payment of the delinquent taxes, penalties, and interest would be in the best interest of the county and the other taxing units after determining that the sum of all outstanding tax and county claims against the property plus the estimated costs under Section 33.48 of a standard judicial foreclosure exceed the anticipated proceeds from a tax sale.
      (b) The seizure and sale may not be set aside or voided because of any error in determination.

      (c) For purposes of this section, a property is presumed to have been abandoned for at least one year if, during that period, the property has remained vacant and a lawful act of ownership of the property has not been exercised. The tax collector of a county may rely on the affidavit of any competent person with personal knowledge of the facts in determining whether a property has been abandoned or vacant. For purposes of this subsection:

          (1) property is considered vacant if there is an absence of any activity by the owner, a tenant, or a licensee related to residency, work, trade, business, leisure, or recreation; and

           2) “lawful act of ownership” includes mowing or cutting grass or weeds, repairing or demolishing a structure or fence, removing debris, or other form of property upkeep or maintenance performed by or at the request of the owner of the property.

Added by Acts 1997, 75th Leg., ch. 914, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 319, Sec. 3, eff. June 18, 2003.

k) If you end up filing a lawsuit to invoke application of Texas law, don’t expect that most lawyers know all this information. 

    Property tax lawyers  and “hired tax consultants” (allegedly legal specialists in this field) rarely do anything amounting to any real litigating.

    For the most part they are only negotiators and compromisers, sad to say, but it is what they do. Since they themselves have no skin in the game they win either way your case goes by charging you exorbitant fees for allegedly professional services.

     Both you and your legal help must understand that they “work” for you and that you are the one who makes the final decisions. Lawyers are ethically required to give you their legal opinion but they should not be given carte blanche to make any decisions without you being directly involved.

l) Know that, in general, all your fellow county land owners are most likely also having their property values constantly raised, year after year. This means that the public approval rating of the Appraisal District and its actions will usually be rated well below that of our worthless politicians in Washington. This alone puts great pressure on the Appraisal Districts, maybe to your benefit.

      I have touched on many of the highlights of our research but there is much more for you to investigate.

    You should work to be informed and set a plan to follow based on Texas law and your own particular circumstances.

    Good luck and don’t hesitate to ask for assistance.

In conclusion, there are many ways for Texas range property owners to
SHOW THEM THE LEAD!