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Florida 5th DCA Says No More to Rushmore

June 19, 2020

By: Jennifer Dixon & Brendan Lynch

In a decision that will potentially have far-reaching implications in the property tax world, Florida’s Fifth District Court of Appeal issued an opinion today in Singh vs. Walt Disney Parks and Resorts, a tax appeal involving the 2015 assessment of Disney’s Yacht & Beach Club property. Although the appellate court technically reversed the lower court’s assessment of property value based on a lack of evidence, it ultimately agreed with Disney and the lower court and absolutely repudiated the challenged assessment methods previously employed by the Orange County Property Appraiser (OCPA) in its valuation of resort hotel properties.

Specifically, the appellate court concluded that the method used by the OCPA (the so-called Rushmore method) "violates Florida law because it does not remove the nontaxable, intangible business value from an assessment." The controversial Rushmore method has been used throughout the country by a number of assessor’s offices, but has been judicially rejected in other states, including California. Today’s decision establishes the demise of the Rushmore method in the State of Florida.

In a time of great upheaval for the hospitality industry due to the financial impacts felt by the pandemic, this decision may bring welcome relief for those experiencing heavy property tax burdens that are in part based on intangible business value.

The OCPA has been instructed by the appellate court to revise its assessment on the Yacht & Beach Club (and, ultimately, for all hotels that have significant ancillary income) by using an income approach to value that compares rental rates for similarly-situated properties. For example, income from a restaurant or retail site on a hotel’s property should not be attributable to the net operating income of the hotel for property tax purposes. Instead a rental rate that would be attributable to that restaurant or retail space does contribute to the overall net operating income for the hotel.

In almost all circumstances, this rental rate revenue will significantly lower the net operating income used in such an income approach to value. 

The full 19-page decision can be found here.

Lowndes attorneys Jennifer Dixon and Brendan Lynch authored an amicus brief that was submitted in the case on behalf of the Central Florida Hotel and Lodging Association. If you have any questions about this case, or questions about your property taxes in Florida, please reach out to one of authors or to the members of our Property Taxes Group.



This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Jennifer

Jennifer R. Dixon is a pragmatic problem-solver. A shareholder in the firm’s Litigation & Trial Practice Group and board certified in Appellate Law by the Florida Bar, she enjoys working closely with clients to determine the best solutions for their business or personal needs and strategizing how to achieve the best outcome possible.

An experienced and versatile civil litigator, Jennifer innately understands when an issue must be decided by a jury or a judge. She is also a certified mediator who recognizes when creative solutions can be used to effectively resolve a dispute on the parties’ terms. Whether in the courtroom or at the settlement table, Jennifer is a zealous advocate who works tirelessly on behalf of her clients.

Jennifer handles civil, family law, and probate appeals on behalf of litigants and amicus curiae, and she has successfully defended judgments and obtained reversals in both state and federal appellate courts. She is also experienced handling administrative appeals before the Florida Division of Administrative Hearings.

Acting as outside general counsel for several private enterprises, Jennifer regularly provides recommendations on issues related to risk assessment, litigation and compliance oversight, and contract administration. Her clients come from a wide variety of industries, including real estate, hospitality, construction, themed entertainment, healthcare and outdoor advertising.

Jennifer is also an experienced family and marital lawyer, frequently handling matters concerning divorce, child custody, support, and prenuptial agreements.

The depth and diversity of Jennifer’s legal experience affords her perspective in working with clients across all industries with varying legal needs.

S. Brendan

A Virginia native originally with aspirations to become a journalist, Brendan Lynch fell in love with Florida and has made it his home since 2005. He represents both commercial and residential property land owners, as well as tenant business owners, in issues of property tax valuation and eminent domain/condemnation.


Brendan assists property owners throughout Florida with their property tax appeals, including assessment reviews, direct negotiations with county property appraisers, appeals to the Value Adjustment Board, and trial and appellate court proceedings. His clients include apartment projects, big box stores, condominiums, commercial strip centers, hotels, residences, student housing, vacant land, and other retail buildings.

With broad experience handling many different types of exemption applications, Brendan often assists clients from the application stage through challenges, to denial of any exemption, through trial and appellate court proceedings. These exemption applications include agricultural, conservation easements, healthcare, homestead, military housing, non-profit, religious, and senior living.

Typically, the eminent domain cases involve a governmental entity (Florida Department of Transportation, county, city, expressway authority, or other state agency) or private utility with condemnation powers seeking to take land from the property owners. Interestingly, Brendan has also represented condemning authorities on special projects – bringing a perspective from both sides of the table.

Brendan’s love for his adopted hometown of Orlando is reflected in his commitment to the community and its cultural diversity. A long-time advocate for the arts and current Chair of the United Arts of Central Florida’s Board of Directors, Brendan recently helped steer the largest Collaborative Campaign in the organization’s history (over $3M). He has also served in leadership roles for the Adult Literacy League, the Orange County Teen Court, and the Heart of Florida United Way.

ICONIC CASES

  • Achieved property tax assessment reduction for internationally-known hotel from $421 million to $259 million, resulting in millions of dollars of savings.
  • Represented a national building contractor in its application for military housing exemptions, resulting in a change in Florida law and a savings of $17 million dollars for the client.

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