County of Clark v. LB Properties, Inc.
County of Clark v. LB Properties, Inc.
Opinion of the Court
OPINION
By the Court,
In this appeal we consider whether a regulation promulgated by the Nevada Tax Commission to value remainder parcels of real property for tax abatement purposes applies retroactively.
I.
In 2005, the Legislature enacted NRS 361.4722, which caps real property taxes by providing partial tax abatements calculated with reference to assessed valuations for the preceding fiscal year on, as relevant here, remainder parcels of real property.
Exercising its delegated authority, the NTC promulgated NAC 361.61038, effective March 23, 2007, which sets forth an apportionment formula for calculating remainder-parcel property values for purposes of NRS 361.4722. Both the regulation’s valuation method and the assessor’s prior approach are complex, but they can be summarized as follows: The regulation adopts an apportionment formula and calculates taxable value by determining the percent of value the smaller parcel contributed to the larger parcel during the fiscal year, thus assigning a pro-rata share to the remainder parcel. The assessor’s prior approach had been to determine taxable value by calculating what the property would have been worth had it existed as a separate piece of land during the relevant tax year, and included consideration of factors such as size, shape, topography, and the value of comparable parcels.
The parcel at issue is owned by respondent LB Properties, Inc. It was divided from a larger piece of land before the regulation’s enactment and, the parties concede, is properly characterized as a “remainder parcel” under NRS 361.4722(6), reprinted supra note 2. Appellant, the Clark County Assessor, valued the land under the multifactored approach he used before NAC 361.61038 was enacted. Seeking application of the new regulation’s apportionment formula, LB Properties appealed to the NTC. The NTC assigned an administrative law judge to the case, who determined that NAC 361.61038 should apply. The NTC disagreed. It upheld the Assessor’s valuation and declined to apply its new regulation retroactively.. LB Properties petitioned for judicial review. The district court reversed the NTC and directed it to apply NAC 361.61038 to LB Properties’ remainder parcel.
n.
The parties primarily dispute whether NAC 361.61038 applies retroactively and, if so, whether it conflicts with the Nevada Constitution, Article 10, Section 1, and is void as a result.
“Retroactivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). Thus, regulations generally only operate prospectively “unless an intent to apply them retroactively is clearly manifested.” State ex rel. State Bd. of Equalization v. Barta, 124 Nev. 612, 622, 188 P.3d 1092, 1099 (2008); accord Bowen, 488 U.S. at 208 (statutory “enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result”).
There are two types of regulations: legislative and interpretive. Fmali Herb, Inc. v. Heckler, 715 F.2d 1385, 1387 (9th Cir. 1983). Interpretive regulations construe, but do not expand upon, the terms of a statute. Legislative regulations, by contrast, are adopted under power delegated by the Legislature to an agency and establish substantive rules that create standards of conduct and impose new rights or duties. See, e.g., Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 207 (4th Cir. 1989) (“[A] substantive or legislative rule, pursuant to properly delegated authority, has the force of law, and creates new law or imposes new rights or duties.”); Slippery Rock Area Sch. Dist. v. Unemployment Comp. Bd. of Review, 983 A.2d 1231, 1236 (Pa. 2009) (“[A] legislative regulation establishes ‘a substantive rule creating a controlling standard of conduct.’ ” (quoting Borough of Pottstown v. Pa. Mun. Ret. Bd., 712 A.2d 741, 743 (Pa. 1998))).
Despite the general rule against retroactivity, if a regulation is a first-time interpretive regulation, application to preexisting issues may be permissible. Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 744 n.3 (1996). Thus, in Smiley, the Supreme Court approved application of an interpretive regulation that clarified an ambiguity the Legislature left for the agency to resolve, namely the definition of “interest.” Id. at 740-41. Compare Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143, 1152 (9th Cir. 2003) (holding that first-time interpretive regulations are not generally retroactive and where the new regulation is an explicit break from prior practice or the agency has expressly stated application would be impermis-sibly retroactive, it may not be retroactively applied), with Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993) (holding that an agency pronouncement that “simply clarifies] an unsettled or confusing area of the law . . . does not change the law” and hence may be applied without having impermissible retroactive effect), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999).
Because NAC 361.61038 was not enacted until 2007 and the valuation at issue occurred prior to that time, application of the regulation would be impermissibly retroactive. The district court therefore erred by ordering the NTC to follow the administrative law judge’s initial recommendation and value the land according to the apportionment formula set forth in the regulation.
B.
In the absence of an applicable regulatory method of assessment, the question becomes whether the method the Assessor used was proper or whether it was itself in violation of Nevada law.
LB Properties argues that the Assessor’s valuation method violated the holdings in Barta and State ex rel. State Board of Equalization v. Bakst, 122 Nev. 1403, 148 P.3d 717 (2006), because it was an “ad hoc standard” rather than a method formally promulgated by the agency. The district court determined, without analysis, that the Assessor’s method of calculation was in violation of Bakst. We disagree, because the pre-2007 method does not inherently lend itself to inconsistent application.
Bakst and Barta dealt with a county assessor’s authority under NRS 361.260 to substantially deviate from statutorily mandated methods of assessing land. See Bakst, 122 Nev. at 1414-15, 148 P.3d at 725; Barta, 124 Nev. at 620-21, 188 P.3d at 1098. In Bakst, the assessor used a unique method to adjust property values—one not consistent with others used throughout the state. 122 Nev. at 1406, 1411, 1414, 1416, 148 P.3d at 719, 722-23, 725-26. In deeming the assessor’s methods unconstitutional, this court held that our Constitution requires “that the methods used for assessing taxes throughout the state must be uniform.” Id. at 1413,
But Bakst and Barta also recognize that the wide and varied differences in each property make it impossible to devise an absolute formula to determine value. Bakst, 122 Nev. at 1412, 148 P.3d at 723; see also Barta, 124 Nev. at 622, 188 P.3d at 1099 (upholding Bakst generally). Moreover, NRS 361.228(3) encourages consideration of property attributes “such as zoning, location, water rights, view and geographic features” in valuing a property, suggesting that valuations should account for all relevant attributes—perhaps even where consideration of a particular attribute is not codified by statute or regulation.
In contrast to Bakst and Barta, the record here supports the conclusion that the Assessor’s method did not lead to unequal taxation—to the contrary, both the administrative law judge and the NTC recognized that it likely led to more equitable taxation than did the method set forth in NAC 361.61038. Indeed, the Assessor’s method appears to be the one generally used prior to the regulation’s enactment and appears in harmony with NRS 361.4722(2)(a)(1). Neither Bakst nor Barta states that only formal regulations may establish methods for assessing value. Since the Assessor’s approach did not conflict with existing statute or practice, we conclude that the Assessor’s methods did not violate the Constitution.
We therefore reverse.
We originally resolved this appeal in a nonprecedential order of reversal. Appellant filed a motion to publish the order as an opinion. We grant the motion and replace our earlier order with this opinion. See NRAP 36(f).
“‘[R]emainder parcel of real property’ means a parcel of real property which remains after the creation of new parcels of real property for development from one or more existing parcels of real property, if the use of that remaining parcel has not changed from the immediately preceding fiscal year.” NRS 361.4722(6).
Article 10, Section 1 of the Nevada Constitution declares that “[t]he Legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal and possessory.’ ’
Reference
- Full Case Name
- COUNTY OF CLARK, NEVADA, and MARK SCHOFIELD, in His Official Capacity as Clark County Assessor v. LB PROPERTIES, INC., an Illinois Corporation
- Cited By
- 3 cases
- Status
- Published