To Protect and Conserve: County Resident Tim O'Neil's Journey to Conservation Use
It's a sweltering summer afternoon - a cow and her baby cling to the sliver of shade cast by a work shed, plump melons cling to their leafy vines in a wide, verdant garden, a lone, violently fuchsia hibiscus stretches its face to the sun and, a few yards away, Tom O'Neill is angry. The cows, and their four lowing black companions, are his, as are the flourishing vegetables and flowering fauna, and he thinks the county isn't paying enough attention to them.
Tom, who works this 13-acre tract of land in Buckhead, and Judi Chamberlain, who owns it, have been trying to get the plot into conservation land use for nearly two years now, with no success. When the Morgan County Board of Tax Assessors said the land didn't qualify, they took the next step and appealed it to the Board of Equalization, who hears tax appeal cases. That body agreed with them, granting them conservation use status, protecting the land and slashing their property taxes.
Shortly thereafter, Chamberlain received a lawsuit from Morgan County, challenging the ruling and asking for the decision to be overturned, and requesting a slew of admissions from Chamberlain, admitting that the land does not qualify and stating that the county followed proper procedure.
O'Neill and Chamberlain, who have been readying the property for a small-scale livestock operations since late 2007, balk at the lawsuit and what it implies, saying they haven't been given a fair shake.
"It's taken me the better part of two years just to get the county to step on the property," says O'Neill, who maintains that the process the county uses to assess conservation use is faulty and fraught with carelessness.
O'Neill, who has six thriving cows and two pigs - the aptly named Pork and Beans - he is raising to sell, believes that these livestock and the work he has put into creating a home for them qualify the property for conservation use.
Under OCGA 48-5-7.4, land between 10 and 2,000 acres that is devoted to "good faith production" of agricultural products (including livestock) or timber can claim the designation, but the catch is that it must be the primary purpose of at least half of that land. The law also states that the agricultural product must have "economic merchantibility," a dense, weighty term that just means that it's got to be something that can be sold for a profit, "not just a hobby," says Chuck Anglin, Morgan County's Chief Appraiser.
"If the product produced is a viable economic product," says Anglin, "that's economic merchantibility."
In the suit they're facing, Chamberlain and O'Neill have been told that they don't meet this qualification.
"I've got plants growing up here beside the house, they're all for sale," says O'Neill, in tones of incredulity, as he shakes out a bucket full of fresh squash, beans and cucumbers from the garden for his six black Angus girls, who are slinking out of the shade for their midday meal. Not to mention the cattle and pigs, he notes, who are all for sale.
However, the county says that's not the only thing they see as a barrier to conservation use status. Christian Henry, attorney for the county, says that what they're producing just isn't enough to justify placing the whole tract in a covenant.
"Ms. Chamberlain's application was denied because the primary use of her property was not the ‘good faith production of agricultural products, timber, or wildlife,’" he said. "In her application, she declared ‘livestock’ as the qualifying use, listing ‘4 +/- cattle.’ Her 13.67 acres includes her residence, which is the primary use of her property, and ‘4 +/- cattle’ is merely an incidental use."
Henry, and the county, maintain that while the cattle exist, there are just too few.
"Raising ‘4 +/- cattle’ is not the ‘good faith production of an agricultural product’ because that is too small a number (lacking in density of the marketable product) and is not ‘economically merchantable,’" Henry says.
Henry isn't denying that O'Neill and Chamberlain may have some products they can sell, but the county just doesn't think it is enough.
"In many cases, such as Ms. Chamberlain's, there may be some demand for an agricultural product, but the quantity is so small (i.e. lacking in density) that the production does not justify the sale," he says. "In such circumstances, the production cannot constitute the primary use of the property."
O'Neill doesn't agree, and he is still putting up a fight.
For him, the conflict started when a huge development of condominiums was approved on the chunk of land adjacent to the property, and he and Chamberlain were afraid that their land wasn't going to be protected from runoff or other damage from the housing project.
So they built fencing, they bought cattle, they found some pigs and started growing veggies to nourish them - in short, they got into the cow business and applied for a 10-year conservation use covenant. When they were denied, O'Neill was surprised - a site visit is part of the application process, and he had never shown anyone around the property.
After filing an open records request for the field inspection reports, O'Neill was shocked by what he found - a series of three drive-by photos with the cryptic phrase "Cattle in woods?" scrawled at the bottom.
"It's wrong because there is no inspection," says O'Neill. "You could have 200 acres, and if they, driving by, didn't feel like you meet their requirements, that's it."
O'Neill says he was stonewalled when he tried to prove his good faith production with receipts of sale and other paperwork showing they're trying to make a business out of Angus, Topper, Mignon and the other three cows grazing in their pasture.
"Why would they squander thousands of dollars in court fees when they can see it here for free?" O'Neill wonders. "They're just refusing to even look."
After a barrage of calls to departments around the county government, O'Neill convinced a county official to have a walk around the property, but the jury is still out as to whether the decision by the Board of Equalization will stand.
As of press time, the Tax Assessor's office couldn't speak to the case specifically, as it is pending legal action. But the circuitous journey Tom O'Neill and Judi Chamberlain are traveling isn't always the way it happens. Of the applications that come to the Board of Tax Assessors, a good number are approved.
"It depends on the circumstances of the property that apply," says Anglin. "But the majority of them are approved.
"There are a lot of qualifications that they have to meet, and the Board of Assessors makes the overall decision at then end," he says. "They have to basically qualify under the guidelines of the law - the terrain, the merchantibility of the economic product, the past use of the land, the practices or non-practices on the land," which means other businesses that may be operating there, prohibiting conservation use approval.
Not all overturned appeals are pursued in court, either. According to Henry, the Board of Assessors took only six cases to Superior Court last year.
But for O'Neill and Chamberlain, who aren't in that majority, the feeling persists that they haven't been offered any consideration for the work they've thrown into their land.
"They flat out deny the application, refuse to look at the facts and then turn around and sue," says O'Neill in exasperation. "I guarantee you we're going to have a knockdown."
But for now, the journey continues, as does the fight they're putting up against what they view as a dearth of equanimity in the process that they hope will one day protect the land they're fighting to save.