PRESENT: All the Justices
CITY OF RICHMOND OPINION BY v. Record No. 110820 CHIEF JUSTICE CYNTHIA D. KINSER June 7 , 2012 JACKSON WARD PARTNERS, L.P.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R. Hughes, Jr., Judge The City of Richmond (the City) appeals from a judgment of the circuit court correcting erroneous tax assessments o n real property owned by Jackson Ward Partners, L.P. (JWP). Because we conclude that JWP failed to carry its burden to prove the fair market value of the eight p arcels of real property at issue, we will reverse the judgment of the circuit court
. F ACTS AND PROCEEDINGS JWP owns real property , designated as Jackson Ward Apartments (the Propert ies ) , in the Jackson Ward area of the City of Richmond , which it operates a s an affordable housing development
. 1 The Properties are considered a " scattered site community " and consist of 11 structures with 18 residential rental units situated on eight , non - contiguous tax parcels located on three different streets, West Clay, Wes t Marshall, and North 1st Streets. The Properties consist of various types of dwellings: t hree parcels contain a single duplex, i.e., one

1 The Properties were originally purchased by Jackson Ward Associates, an affiliated company, and subsequently assigned to Jackson Ward Partners, L.P. In this opinion, these companies will be referred to collectively as JWP.2 structure with two units, four parcels contain single

- family homes, and one parcel contains four attached duplexes wi th a total of eight units. The parcels are zoned R

- 6, single family or duplex, 2 and contain both two

- b edroom and three

- bedroom units.
In purchas ing the eight parcels, JWP agreed to renovate the structures and operate the Properties as affordable rental ho usin g. The required renovations were financed through Virginia Housing & Development Authority (VHDA) loans, the terms of which were pre - negotiated by the Richmond Redevelopment & Housing Authority (RRHA) and United States Department of Housing and Urban Development ( HUD ) through the Properties ' participation in HUD's Section 8 affordable housing program. The eight , non - contiguous tax parcels are subject to a deed of trust and a regulatory agreement with VHDA. Under th at agreement, the parcels are require d to be operated as an 18

- unit , affordable , multifamily rental housing development for a 40

- year period
. 3 The VHDA treats the Properties as comparable to an 18

- unit apartment complex. The regulatory agreement
pr ohibit s the sale of individual structures o r parcels and requires that the units be rented to persons whose income is 40%

2 See Richmond City Code § 114

- 412.1. 3 In addition, a regulatory agreement restricting the property for a 30

- year period was required for participation in the l ow income housing tax credit program. VHDA administers the low income housing tax credit.3 or less than the area median income
. 4 Pursuant to the various agreements, HUD dictates the rental rates on the Properties and conducts periodic inspections to ensure compliance with certain regulatory requirements. Pursuant to Code § 58.1

- 3984, JWP filed a second amended complaint in the circuit court for correction of erroneous tax assessments on the Properties for the tax years 2005

- 2008. In its complaint, JWP claimed the ass essments were " clearly erroneous and in excess of fair market value in violation of the Constitution of Virginia, Article X, § 2, " and " lacked uniformity .
. . with respect to the same class of subject s within the City in violation of the Constitution of V irginia, Article X, § 1. "
At a five

- day bench trial, Eugene Joseph, a licensed commercial real estate appraiser , testified for JWP regarding his appraisal of the Properties for the tax years in question
. Joseph stated that the " cornerstone of any appraisa l " is determining the highest and best use. He explained the " four general areas of the highest and best use " : what is " legally permissible , . . . physically possible, financially feasible, and
. . . maximally productive. " Because the eight parcels were

" restricted by an extended use regulatory agreement " and could

4 By receiving the low income housing tax credit, JWP must rent the units to individuals whose income is 50% or less than the area median income.4 not " be sold off as a single family [home] or duplex, " Joseph opined that the only legally permissible use, and thus the highest and best use, was a multifamily , 18

- unit parcel. According to J oseph , he had " to value the property as what it truly is and that is a scattered site single, multifamily property per what's legally permissible. "
To determine fair market value, Joseph considered the cost, sales comparison, and income approaches to valui ng the Properties
. Joseph deemed the income approach to be the primary indicator of value but used the sales comparison approach for

" some additional support
. " According to Joseph, the income approach is more reliable because " typical buyers and investor s consider the income potential of a property. " In applying the income approach, Joseph considered the contract rents set by HUD, the typical vacancy and collection losses, typical operating costs for such a property, and the historical operating expenses of th e Properties to arrive at the net operating income. Joseph then determined a capitalization rate, primarily by " extract[ing] capi talization rates from .
. . other sales , " and capitalized the net operating income to arrive at his value estimate. 5 Un der the sales comparison approach, Joseph

5 Because the real estate taxes were in dispute, Joseph excluded them from the operating expenses in determining net operating income and compensated for the real estate taxes by adjusting the capitalization rate.5 compared the sale of similar properties, which in this case meant multifamily apartment complexes. Joseph then made " lump sum adjustment[s] to account for " the rent restrictions, again because " the property is enc umbered and you have to account for that. " Using th ese method s , Joseph determined that the fair market value of the Properties as a whole was $600,000 for each of the tax years 2005

- 2008. Joseph opined that " the overall value of $600,000 should be allocat ed on a per unit basis to reflect the individual tax parcels as identified by the City. " According to Joseph, " you can simply allocate on a per unit basis to the various parcels and to the various units. " By allocating th e $600,000 value equally on a pe r unit basis to the 18 units, Joseph determined the fair market value of each unit to be $33,333. Joseph then determined the fair marke t value of each tax parcel based on the number of units located on the parcel.
On cross

- examination, Joseph conceded that the parcels could be assessed individually, though only as a " fractional appraisal " because the highest and best use of the Properties was as one multifamily housing development. According to Joseph, " you have to value the property as one " because of the restrictions contained in the regulatory agreement. He further admitted that his appraisal was not a fee simple valuation for the same reason. When asked if his allocation method " was6 simply a mathematical calculation, " Joseph indicated that it was and opined that the method was " a valid technique. " Several witnesses who testified for JWP stated that the Properties operate at a loss due, in large part, to the City's tax assessments. According to those witnesses, the Properties could neither generate suf ficient income to justify the assessed value nor be sold at the assessed value. Richard Woodson, the Deputy Assessor for the City and also a licensed real estate appraiser , testified regarding the City's

assess ment of the Properties for tax years 2005

- 200 8. In contrast to Joseph, Woodson stated that t he " true test of highest and best use " is " [w]hat use produces the highest value. " Woodson explained that in the Jackson Ward area of the City, the trend is for " rooming houses " to be converted back to singl e family dwellings. That factor , along with the applicable zoning and the type of construction on each parcel led Woodson to conclude that the highest and best use of the Properties is as single

- family homes and duplexes. Woodson did not consider the Pro perties to be a scattered site apartment complex because he was required to assess the " fee simple interest [de] void of any encumbrances. " Woodson stated the City's assessment method was not restricted by the deed of trust or the regulatory agreement's tr eatment of the Properties as a multifamily housing development and, with one exception, he did not consider the7 restrictions imposed by the regulatory agreement in arriving at the assessed value of the eight parcels
. 6 Doing so, he opined, would mean asses sing a leasehold interest rather than a fee simple interest. Woodson believed the City was required to assess each parcel individually: " Each parcel gets a separate tax bill, so it has to have a separate assessment. " He pointed out that the RRHA has numer ous single

- family dwellings scattered throughout the City that have similar rent restrictions. Nevertheless, the City assesses each parcel individually under a fee simple valuation. Woodson opined that other than the fact that the parcels are owned by on e entity and are rented as a package, they do not resemble an apartment complex.
T o determine the fair market value of each of the eight tax parcels , Woodson considered the income, cost, and sales comparison approaches. Unlike Joseph , Woodson utilized the sales comparison approach because it provided " [ t ] he most

6 As of the 2007 tax year, to determine fair market value, a taxing authority had to consider restrictions on rent and alienation of title, and the actual operating expenses for real property "containing more than four residential units operated in whole or in part as affordable rental housing." Former Code § 58.1

- 3295 (as in effect prior to amendments by 2009 Acts ch. 264, 2010 Acts chs. 552, 791, 824, and 2011 Acts ch. 137). Woodson applied that statute only to the parcel on Clay Street, with four attached duplexes, for tax years 2007 and 2008. Under the statute , Woodson accounted for the "below market rents and higher than normal expenses" by applying a "lower gross rent multiplier."8 readily identifiable and trackable information for single family and duplex houses " that was " readily available " to the City. To apply the sales comparison approach, Woodson used properties

" most similar in size, location, condition, quality, land sizes,
et cetera. " As Woodson noted, the structures on the parcels have unique " individual characteristics " with respect to setbacks, entries, porches, and square footage. The City assessed the eight ta x parcels at the following fair market value s for the years in question: **Address 2005**  **2006 2007**  **2008** 509 N. 1st St. $150,000 $150,500 $162,000 $186,000 511 N. 1st St. $150,000 $133,000 $155,000 $171,000 517 N. 1st St. $185,000 $185,000 $190,000 $200,00 0 519 N. 1st St. $169,000 $153,000 $163,000 $174,000 521 N. 1st St. $155,000 $182,000 $215,000 $220,000 315

- 321 W. Clay St. $565,000 $725,000 $605,000 $605,000 409 W. Marshall St. $165,000 $185,000 $225,000 $225,000 411 W. Marshall St. $155,000 $194,0 00 $215,000 $235,000 **TOTAL VALUES** $1,694,000 $1,907,500 $1,930,000 $2,016,000 Woodson criticized Joseph's assessment as not valuing the fee simple interest but instead the leased fee, an " entirely different subject[]. " In addition, Woodson believed the properties used by Joseph as comparable properties were completely different types of property. Joseph, Woodson stated, should have assessed each p arcel individually and his assessment

was " nothing more than an appraisal for investment value in a leaseho ld context. "9 Following the close of evidence, JWP asked the circuit
court to correct the City's assessments on the eight tax parcels . According to JWP, the City , in assessing the Properties , ignored their highest and best use as an 18

- unit , multifamily ho using development. Because the regulatory restrictions required that the Properties be operated as an affordable housing development, JWP argued, the City committed manifest error by basing its assessment on a false premise: that the units were single

- fam ily homes and duplexes. While JWP conceded that the Properties consisted of distinct tax parcels and that " the law require[d] that all property be taxed, " it argued there was no requirement for an " individual appraisal on each parcel. " Responding, the Cit y argued that it was not a party to the restrictions placed on the Properties and the restrictions, therefore, could not alter its assessment obligations. The City argued that " the biggest flaw " in JWP's appraisal was the determination of highest and best use, which ignored the Properties ' R

- 6 zoning and the fact that there are eight , non contiguous tax parcels. The City also claimed that by appraising all the parcels as a whole and then allocating that value to each of the individual parcels with a " math ematical calculation , " JWP ignored this Court's holding in West Creek
Assoc iate s, LLC v. County of Goochland , 276 Va. 393, 665 S.E.2d10 834 (2008), that each parcel must be assessed individually. In addition, the City noted that JWP ’s appraisal failed to ac count for differences in size, location, age, and features of the individual structures , as well as the fact that some units had recently been renovated.
T he circuit court held that JWP satisfied its burden of proving the City's assessments for years 2005

- 2008 were erroneous and ordered the City to correct its assessments and issue refund s to JWP for taxes it overpaid based on the erroneous assessment, plus interest
. The circuit court agreed with JWP that consideration of the Properties ' highest and best

u se compelled consideration of the applicable regulatory restrictions
. Invoking the definition of fair market value as

" [w]hat a willing buyer while under no compulsion to buy " will pay, the court held that the " deed restrictions have to come into play. " Because the City's assessments failed to consider the restrictions on the Properties , the court concluded that JWP had carried it s burden to show by a clear preponderance of the evidence that the City committed manifest error in its assessments of the eigh t tax parcels. The City, according to the court, did n ot " take into accou nt the reality of the situation
. " The circuit court stated:11 [ V aluing the property as an apartment complex is] the best way to approach it given the deed restrictions and the regulato ry agreement. It has to be. It just defies reality
. . . that any purchaser approaching a seller of these properties wouldn't have to take these things into account, and the fee simple analysis is just not appropriate. In addition, the court opined tha t " the income approach as urged by [JWP] is the correct and more readily available vehicle for determining
. . . the fair market value. " The circuit court thus concluded that the City’s tax assessments should be

" adjusted according to [JWP's] evidence and th e refunds allowed. " The circuit court denied the City's motion to reconsider , and this appeal followed
. ANALYSIS We granted the City an appeal on the following assignments of error: 1. The Circuit Court of the City of Richmond erred in ruling that eight no n - contiguous tax parcels should be valued as one apartment complex. 2. The Circuit Court of the City of Richmond erred by accepting Plaintiff ' s values, which were determined in bulk. 3. The Circuit Court of the City of Richmond erred by ruling that the City ' s va lues had to be determined under the income approach to valuation at less than fee simple interest. 4. The Circuit Court of the City of Richmond erred by determining that P laintiff overcame12 the presumption of correctness under Virginia Code § 58.1

- 3984. With r egard to these issues, the parties make essentially the same arguments on appeal as they did before the circuit court. If the City is correct on any one of th e issues raised in the assignment s of error , the circuit court ' s judgment must be reversed
. The q uestion presented by the first two assignments of

error is dispositive of the appeal , i.e., whether the circuit court erred as a matter of law by holding , based on JWP's appraisal of the Propert ies , that eight separate, non

- contiguous parcels of real prope rty can be appraised as one parcel and that the appraised value could then be allocated among the individual parcels based solely on the number of ren t al units situated on each parcel
. This question is a mixed question of law and fact, and we thus conduct a de novo review. See Ford Motor Credit Co. v. Chesterfield C n ty. , 281 Va. 321, 3 34, 707 S.E.2d 311, 317 (2011). The Constitution of Virginia , with certain exceptions not relevant here, requires that all property be taxed , and that all
taxes " shall be un iform upon the same class of subjects within the territorial limits of the authority levying the tax. " Va. Const. art. X, § 1. In addition, a ll assessment s of real property " shall be at their fair market value. " Va. Const. art.13 X, § 2. A taxing authori ty ' s assessment is presumed to be
correct , and a taxing authority need not " prov [ e ] the correctness of its assessment
. " TB Venture , LLC v. Arlington
C nty. , 280 Va. 558, 563, 701 S.E.2d 791, 794 (2010) . The lack of such evidence " ' does not impeach [the c orrectness of an assessment] since the taxpayer has the burden of proving the
assessment erroneous. ' " Id. (quoting West Creek , 276 Va. at 409, 665 S.E.2d at 8 4 3 ).
A taxpayer challenging an assessment must show, " by a clear preponderance of the evidence, " that the taxing authority

" totally disregarded controlling evidence in making the
assessment " or " committed manifest error. " TB Venture , 280 Va. at 563, 701 S.E.2d at 794 (internal quotation marks omitted)
. To establish manifest error in the assessment, the taxpayer must
prove that the taxing authority employed an improper methodology in arriving at a property ' s assessed value or by establishing " a significant disparity between fair market value and assessed value

. . . so long as the assessment [does n ot come] within the range of a reasonable difference of opinion, .
. . when considered in light of the presumption in its favor. " Id. (quoting West Creek , 276 Va. at 4 14 , 665 S.E.2d at 845 ) (alteration s in original) (internal quotation marks omitted)
. Reg ardless of the manner in which a taxpayer attempts to establish manifest error,14 to satisfy the statutory requirement of showing that real property is assessed at more than its fair market value, a taxpayer must necessarily establish the property ' s fair ma rket value. This is so irrespective of whether a taxpayer is attempting to show manifest error or disregard of controlling evidence by proving a significant disparity between fair market value and assessed value, or by establishing a flawed methodology by the taxing authority in setting the assessed value. West Creek , 276 Va. at 417, 665 S.E.2d at 847 (citation omitted) (emphasis added)
.

" [ F ] air market value ' is the present actual value of the land with all its adaptations to general and special uses, and not its prospective, speculative or possible value, based on future expenditures and improvements. ' " Id. at 416, 665 S.E.2d at 846 (quoting Fruit Growers Express Co. v. City of Alexandria , 216 Va. 602, 609, 221 S.E.2d 157, 162 (1976)); see also Keswick
C lub, L.P. v. County of Albemarle , 273 Va. 128, 136, 639 S.E.2d 243, 247 (2007) (fair market value of real property is the " sale price when offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity o f having it " ) (internal quotation marks omitted). There are many factors to be considered in arriving at the fair market value of property. While size and cost of the property may be factors to be given weight, there are many other factors which tend to i ncrease or diminish such value; for instance, the design, style, location, appearance, availability of use, and the economic situation prevailing in its area, as well as other circumstances.15 Smith v. City of Covington , 205 Va. 104, 108

- 09, 135 S.E.2d 220, 223 (1964).
In West Creek , 144 separate limited liability companies (collectively, West Creek) challenged the tax assessment s of 144 parcel s of real property comprising a total of 2,500 acre s , a portion of which had been deeded to each company . 276 Va. a t 397

- 98, 665 S.E.2d at 836. Citing the lack of metes and bounds descriptions of the parcels , an approved subdivision, and infrastructure on many of the parcels , West Creek ' s expert real estate appraiser value d the parcels " as a whole " and then

" assigned a per acre value
. . . based on the availability of infrastructure
. " Id. at 401 , 665 S.E.2d at 838
. On appeal, one of the issues was whether the trial court erred in concluding that the taxpayer had failed to establish the fair market value of certain pa rcels of real estate because the taxpayer " had done nothing more than spread the value of the development across the individual parcels. " Id. at 414, 665 S. E.2d at 845 (internal quotation marks omitted). This Court affirmed the trial court ' s judgment " tha t West Creek failed to present credible evidence of the parcels ' fair market values. " Id. at 416

- 17, 665 S.E.2d at 847. We held that

" [i]n order to satisfy the statutory requirement of showing that real property is assessed at more than its fair market v alue,16 see Code § 58.1

- 3984(A), a taxpayer must necessarily establish the property ' s fair market value. " Id. at 417, 665 S.E.2d at 847. Citing Code § 58.1

- 3290, we pointed out that even West Creek agreed the County was required to assess the 144 parcels i ndividually. Id. at 414, 665 S.E.2d at 846. In relevant part, Code § 58.1

- 3290 provides that, " [w]hen a tract or lot becomes the property of different owners in two or more parcels, subsequent to any general reassessment of real estate in the city or coun ty in which such tract or lot is situated each of the two or more parcels shall be assessed and shown separately upon the land books, as required by law. " Although the assessments at issue in this appeal were part of the County ' s quadrennial re assessment, other statutes also require the parcels to be assessed individually
. See , e.g. , Code § 58.1

- 3281 (commissioner of revenue shall annually, on January 1, " ascertain all the real estate in his county or city, .
. . and the person to whom the same is chargea ble with taxes on that day " ); Code § 58.1

- 3303 (requiring clerk of each circuit court to provide commissioner of revenue with deed recordation receipt showing, among other things, description of real property conveyed and names of grantor and grantee); Cod e § 58.1

- 3309 (requiring information appearing in receipts provided pursuant to Code § 58.1

- 3303 to be transferred " on the land book and charged to the person to whom the transfer is made " ). Id. at 414 n.8, 665 S.E.2d at 846 n.8 (emphasis added)
. I n respo nse to West Creek ' s argument that the trial court had failed " to consider the recent purchase price for the amassed parcels as evidence of [ their ] fair market value , " we held th at West Creek was required to establish the fair market value of each parcel , r egardless of any error on the part of the17 taxing authority. Id. at 415

- 17, 665 S.E.2d at 846

- 47. Continuing, we explained that West Creek ' s expert appraiser had

" accepted the sale price of the 2,500 acres as controlling and assigned portions of the price as the per acre value for parcels depending on the development al phase in which the parcels were located. " Id. at 417, 665 S.E.2d at 847. We noted that the appraiser ' s methodology was " ' an arithmetic formula, ' which is not an accepted appraisal method. " Id. Thus, we concluded that

" West Creek ' s evidence did not rebut the presumption of correctness afforded the assessments. " Id. at 417

- 18, 665 S.E.2d at 847. This Court ' s decision in TB Venture is even more compelling. There, TB Venture , LLC (TB Ventur e) alone owned a condominium development containing 21 units that were subject to an agreement requiring the units " to be rented to qualifying, low

- income households for a period of 40 years and specif[ying] limitations on rental amounts and occupancy. " 2 80 Va. at 560

- 61, 701 S.E.2d at 792. T B Venture challenged the taxing authority ' s tax assessments on the condominium units and at trial presented testimony from an expert qualified in real estate appraisal. Id. at 561, 701 S.E.2d at 793. Valuing the uni ts on a " ' leased fee ' rather than a fee simple basis " to account for the 40

- year rental restrictions encumbering the units, the expert admitted that he appraised " ' all 21 units as18 a whole ' " and " then allocated a value to each uni t ' based on the pro rata share of the income of each of the units derived by the overall income. ' " Id. at 561

- 62 , 701 S.E.2d at 793. Like
JWP ' s appraiser, Joseph, TB Venture ' s expert appraiser testified that " he did not determine the fair market value of each unit because ' the units [could not] be sold individually as condominiums ' but are ' basically tied together through this
covenant. ' " Id. at 562, 701 S.E.2d at 793 (alteration in original)
. The trial court sustained the taxing authority ' s motion to strike TB Venture ' s evide nce. Id. at 562, 701 S.E.2d at 793. In part, the court concluded that TB Venture had " ' failed to prove the value of the subject properties. ' " Id. On appeal, we affirmed the trial court ' s judgment. Id. at 565, 701 S
. E.2d at 795. Noting that " the taxp ayer ' s burden to prove that real property is assessed at more than its fair market value necessarily requires that the taxpayer establish th e property ' s fair market value, " we held that TB Venture did not carry its

" burden to establish each unit ' s fair mar ket value. " Id. at 564

- 65, 701 S.E.2d at 794

- 95. We explained that " just as the [taxing authority] was required to separately assess each unit, TB Venture was required
to establish the fair market value of each unit
. " Id. at 564, 701 S.E.2d 79 5
. Accordi ng to Code § 55

- 79.42, " each condominium19 unit constitutes for all purposes a separate parcel of real
estate " and, " [i]f there is any unit owner other than the declarant , each unit , together with its common element interest

. . . shall be separately assesse d and taxed. " 7 See also West Creek , 276 Va. at 414 n.8, 665 S.E.2d at 846 n.8 ( listing statutes that require parcels of real property to be assessed individually ). Addressing TB Venture ' s argument that " each unit ' s location in the complex, its amenities, and even its view [were] irrelevant because of the restrictions " applicable to all the units , the Court stated: To the extent there are market

- driven impediments to selling the units individually and limitations on the rental income that can be realized, such factors may affect each unit ' s fair market value. But, they do not alter the statutory requirement that condominiums be treated as separate parcels of real estate and separately assessed. Nor do such factors alter TB Venture ' s burden to establish ea ch unit ' s fair market value in order to show that its real property is assessed at more than fair market value. Id. at 565, 701 S.E.2d at 795 (citations omitted) (emphasis added)
. The statutes at issue in TB Venture and West Creek requiring individual ass essments of the real properties at issue in those case s are not unique in the realm of real property

7 TB Venture was not the "declarant." Id. at 564, 701 S.E.2d at 794.20 assessments by taxing authorities. Instead, both statutes, Code
§ § 55

- 79.42 and 58.1

- 3290 , respectively, merely apply to unique circumstances the general rule that each tax parcel must be assessed individually. Regarding Code § 55

- 79.42 , at issue in
TB Venture , it is essential to note that " condominiums are creatures of statute wholly unknown at common law. " Orchard Glen East, Inc. v. Board of Supervisors , 254 Va. 307, 311, 492 S.E.2d 150, 153 (1997). Thus, being a creature of statute , the General Assembly had to direct the treatment of condominium units for purposes of assessment by taxing authorities. It did so by requir ing taxing authorities to assess each condominium unit as a separate tax parcel, like all other parcels of real property. The same can be said of time

- shares and cooperatives
. Because both are creat ures of statute , Code § 55

- 363 directs how to treat time

- share estates for purposes of ta x assessment, and Code § 55

- 428 does the same for cooperative interests. Specifically, Code § 55

- 363(B) states that " [e]ach time

- share estate constitutes for purposes of title a separate estate or interest in a unit, " and subsection C requires that each t ime

share unit be taxed as if it were owned by a single taxpayer. Code § 55

- 363(C). Similarly, Code § 55

- 428(A) states that a cooperative interest " is real estate for all purposes " and subsection C commands that in certain instances, " [t] he fair21 market v alue of each such cooperative apartment unit shall be established by determining its fair market value for sale as an individual unit, determined in the same manner .
. . as the fair market value of condominium units. " The statute at issue in West Creek st ates that [w] hen a tract or lot becomes the property of different owners in two or more parcels, subsequent to any general reassessment of real estate in the city or county in which such tract or lot is situated each of the two or more parcels shall be as sessed and shown separately upon the land books, as required by law. Code § 58.1

- 3290. Similarly, Code § 58.1

- 3285 provides : Whenever a tract of land is subdivided into lots under th e provisions of law and pla ts thereof are recorded, subsequent to any ge neral reassessment of real estate in the city or county in which such real estate is situated, each lot in such subdivision shall be assessed and shown separately upon the land books, as required by law. Rather than imposing a unique requirement for the a ssessment of a tract of real property that has been subdivided or has become the " property of different owners in two or more parcels, " these
statutes simply require that such real property be assessed like all other tracts of real property, as individual parcels. As we noted in West Creek , numerous statutes require that separate parcels of real p rop erty be assessed on an individual basis. Code § 58.1

- 328 1 requires the commissioner of the revenue to annually " ascertain all the real estate in his county22 or city, .
. . and the person to whom the same is chargeable with taxes. " In addition, the commissioner " shall assess the value of any building and enclosure not previously assessed " and the " value shall be added to the value at which the land was previously charged. " Id. Under Code § 58.1

- 3302 , the commissioner of the revenue is required to " enter separately " in the table of town or city lots " each lot and [to] set forth

. . . the value of the buildings on the lot [and] the value of the lot including build ings. " Code § 58.1

- 3303 requires the clerk of each circuit court to provide the commissioner of the

revenue with a deed recordation receipt for " all deeds for the partition and conveyance of land " that state s , among other things, a description of the real property conveyed and the names of the grantor and grantee. Furthermore, the Attorney General expressed the opinion that certain statutes, Code § § 58

- 772,

- 772.1,

- 773 and

- 805 (now Code § § 58.1

- 3285,

- 3290,

- 3302 ) , " provide a general legislative mandate that separate parcels of real property shall be separately assessed
. " 1974

- 1975 Op. Atty. Gen. 89.
D espite opining that the highest and best use of the eight tax parcels is a single apartment complex, Joseph , as JWP's appraiser, nonetheless recognized th at he had to establish the fair market value of each parcel when he allocated a numerical value to each of the eight parcels. But, the methodology used23 by Joseph to value each tax parcel, which was in turn sanctioned by the circuit court, is the same met hodology this Court rejected in TB Venture . Joseph opined that the fair market value of the eight parcels was $600,000 for each of the tax years in question. When asked how that value translated to the eight tax parcels, he responded that " you can simply allocate on a per unit basis to the various parcels and to the various units. " During cross

- examination, Joseph admitted that he took the $600,000 value and performed a " mathematical calculation " to arrive at the fair market value of each parcel. He als o admitted that h e appraised the eight parcels as a single apartment complex only because of the applicable restrictions containe d in the regulatory agreement. Admittedly, TB Venture involved condominium units, not parcels of real property. But, as we hav e already explained, Code § 55

- 79.42 requires each condominium unit to be assessed as a separate parcel of real estate, just like all other individual parcels of real property. TB Venture ' s expert appraiser, like
J oseph , valued numerous condominium units in bulk and placed a single value on all the units. He then assigned a fair market value to each unit by performing a mathematical calculation. TB
Venture , 280 Va. at 561

- 62, 701 S.E.2d at 793. We affirmed the trial court ' s judgment granting the taxing authority ' s motion to strike TB Venture ' s evidence on the basis that , as a matter of24 law , TB Venture failed to carry its burden of establishing the fair market value of each unit. 8 TB Venture , 280 Va. at 564

- 65, 701 S.E.2d at 794

- 95. Interestingly, the s ame methodology was also employed and rejected in West Creek , 276 Va. at 401

- 02, 417

- 18, 665 S.E.2d at 838

- 39, 847

- 48. In other words, TB
Venture and West Creek are dispositive of the case before the
Court. As we explained i n City of Covington , fair marke t value includes considerations of a parcel ' s unique characteristics such as " size and cost[,] design, style , location, [and]
appearance. " City of Covington , 205 Va. at 108

- 09 , 135 S.E.2d at 22 3 . A value that has been mathematically assigned to individua l tax parcels from a bulk appraisal of multiple parcels considers none of these factors
. As the City correctly argued to the circuit court , JWP's appraisal failed to account for differences in the eight parcels with respect to size, location, style, uniqu e features like porches, and the fact that certain units had received recent renovations. According to Woodson, one of the parcels has " the original [wrought] iron porch columns and filigree. " Thus, like TB Venture, JWP failed as a matter of law to carry its burden to establish the fair market

8 If TB Venture's methodology of valuing the condominium uni ts had been an issue for the fact

- finder, it would have been error for the trial court to strike TB Venture's evidence.25 value of the eight tax parcels
. See West Creek , 276 Va. at 417, 665 S.E.2d at 847. The circuit court's decision implies that a taxpayer ' s burden of proving the fair market value of each tax parcel is somehow vitiat ed by the requirement to assess real property according to its highest and best use. See Shoosmith Bros., Inc. v. County of Chesterfield , 268 Va. 241, 246, 601 S.E.2d 641, 644 (2004) ( " [I]n assessing all tangible properties for tax purposes such propertie s should be assessed at their highest and best use. " ) (internal quotation marks omitted). Because the Properties are subject to cer tain regulatory restriction s , the circuit court held , the highest and best use is a single apartment complex
. But , the prin ciple that real property be assessed at its highest and best use does not mean real property should be assessed as something other than what it actually is. In this case, there is no dispute that t he real property at issue is eight separate, non

- contiguou s parcels
. Appraising the Properties according to their highest and best use does not justify treating the Properties a s if they were not eight individual parcels.
O ur decision in TB Venture makes clear that assessing according to a property ' s highest and best use is compatible with assessing each individual parcel even when there are restrictions on the property . There, the taxpayer justified its26 bulk assessment because the condominium units at issue could not be sold individually. 280 Va. at 561

- 62, 70 1 S.E.2d at 793. We held that this restriction did not alter either the requirement that the units b e assessed individually or the taxpayer ' s burden to establish fair market value. Id. at 565, 701 S.E.2d at 795.
S uch " market

- driven impediments to sellin g the units individually and limitations on the rental income that can be realized " could , however, " affect each unit ' s fair market value. " Id. The same applies here. The particular restrictions that apply to the Properties undoubtedly affect the fair m arket value of each of the eight parcels , but they do not ob viate JWP ' s burden to prove the fair market value of each parcel
. See West Creek , 276 Va. a t 417, 665 S.E.2d at 847 ( " to satisfy the statutory requirement of showing that real property is assesse d at more than its fair market value, a taxpayer must necessarily establish the property's fair market value " ). That burden also is not affected by the circuit court's finding that the City committed manifest error in its assessments of the eight parcels. See TB Venture , 280 Va. at 563, 701 S.E.2d at 794 (because the taxpayer has the burden of proving a tax assessment erroneous, the tax ing authority's failure to prove the correctness of its assessment does not impeach that assessment)
.27 CONCLUSION In sum, " to satisfy the statutory requirement of showing that real property is assessed at more than its fair market value, a taxpayer must necessarily establish the property ' s fair market value. " West Creek , 276 Va. at 417, 665 S.E.2d at 847 (citation omitted)
. By appraising the eight separate, non

contiguous parcels of real pr operty in bulk as a single apartment complex, i.e., as one tax parcel, and then assigning a value to each constituent tax parcel based on a mathematical calculation , JWP failed as a matte r of law to carry its burden of pro ving the fa ir market value of each parcel. For these reasons, we will reverse the judgment of the circuit court and remand for entry of an order reinstating the City's tax assessments on the eight parcels for the tax year s in question. Reversed and remanded
.

JUSTICE McCLANAHAN, with whom JUSTICE POWELL joins, dissenting. I disagree that either TB Venture, LLC v. Arlington Cnty ., 280 Va. 558, 701 S.E.2d 791 (2010) or West Creek Associates, LLC v. County of Goochland , 27 6 Va. 393, 665 S.E.2d 834 (2008) is dispositive of this case. Applying an overly simplistic analysis, the majority has isolated one aspect of the holdings in TB Venture and West Creek to formulate its own policy of28 appraisal methodology in Virginia. 1 Fur thermore, the majority has summarily judged the highest and best use of the parcels comprising Jackson Ward Apartments

– a determination which necessarily drives methodology, but which neither TB Venture nor West Creek address. In short, the majority has placed its judicially created policy of appraisal methodology above the constitutional mandate requiring assessment of property at fair market value, and appointed itself both finder of fact and expert to justify its reversal of the circuit court's judgmen t.
T he circuit court properly recognized that the determination of fair market value, not methodology, was the controlling issue for its consideration. As the circuit court stated, "[u] nder the constitution, we have to approach these assessments with the aim of determining what the fair market value is. We know from the experts that we have to determine what the highest and best use is." See Va. Const. art. X, § 2 (A ll assessments of real estate and tangible personal property

" shall be at their fair mark et value." ); Code § 58.1

- 3201;

1 The majority concludes that "[b]y appraising the eight separate, non

- contiguous parcels of real property in bulk as a single apartmen t complex, i.e., as one tax parcel, and then assigning a value to each constituent tax parcel based on a mathematical calculation, JWP failed as a matter of law to carry its burden of proving the fair market value of each parcel." Although it is not entir ely clear what component of Joseph's appraisal the majority rejects, or whether the majority rejects his appraisal in its entirety, what is clear is that the majority deems the appraisal improper as a matter of law.29 Shoosmith Bros. v. County of Chesterfield , 268 Va. 241, 246, 601 S.E.2d 641, 644 (2004) (in assessing fair market value, property should be valued at its highest and best use). Thus, as the circuit court correctly noted, det ermining the fair market value of the property is the overriding objective. The method by which the value is determined is dependent on the highest and best use of the property to be valued. "The Constitution does not prescribe that the valuation of all property for taxation shall be ascertained in the same way or manner. It is not even implied. In the nature of things, it could not be done. The many kinds or species of property with their diverse characteristics render it impossible." R. Cross, Inc. v. City of Newport News , 217 Va. 202, 206

- 07, 228 S.E.2d 113, 116 (1976) (internal quotation marks omitted). 2 Joseph , a commercial real estate appraiser specializing in multifamily VDHA and low income tax properties, testified in detail as to how he determ ined the fair market value of each t ax

2 The majority d iscusses at length two basic principles

– that each tax parcel must be individually assessed by the taxing authority and that the taxpayer must establish the fair market value of the property
. See, e.g., West Creek , 276 Va. at 414

- 15 & n.8, 665 S.E.2d at 846 & n.8 (discussing r equirement that tax parcels be "assessed individually"); TB Venture , 280 Va. at 563

- 64, 701 S.E.2d at 794 (discussing requirement that taxpayer establish the property's fair market value). But these principles are not disputed by JWP and the application o f the se principles do es not compel reversal of the circuit court's judgment since Joseph did value each tax parcel
. The majority simply rejects his values as a matter of law.30 parcel . His values were based on his appraisal of the parcels comprising Jackson Ward Apartments according to their highest and best use as part of a single multifamily apartment community
. Joseph explained that und er the Uniform Standards of Appraisal Practice, he must consider the eight tax parcels as one property from a legally permissible point of view, and that it would have been appraisal error for him to value the Property as single

- family homes, duplex homes, or anything other than an 18

- unit affordable multifamily rental housing communit y. He further testified his determination of value for each parcel using an "allocation method" was a valid technique for apartment communities and the same method used by th e City on other apartment communities. Persuaded by Joseph's opinion regarding the highest and best use for the parcels comprising Jackson Ward Apartments and his utilization of the income method appropriate for appraisal of apartment communities, the circ uit court ruled that JWP proved the fair market value of each parcel. In doing so, the circuit court found that the City's determination of highest and best use ignored " the reality of the situation" in light of evidence, found credible by the circuit cou rt, that the parcels are bound together, must legally be operated as multifamily affordable rental housing, and could not be sold as separate parcels. In fact, the evidence established that the City31 initially worked with RRHD to bind these parcels togethe r for multifamily affordable rental housing and has continued to
approve the operation of the parcels as an apartment community. 3 As we have previously held, "[i]n cases where the circuit court is presented with such conflicting testimony, we 'will defer to the circuit court's judgment of the weight and credibility to be given [the witness'] testimony.' " County of Albemarle v. Keswick Club, L.P. , 280 Va. 381, 388, 699 S.E.2d 491, 495 (2010) (quoting Board of Supervisors v. HCA Health Servs. , 260 Va. 317,

3 Before the parcels were acquired by JWP , t he City of Richmond and the RRHA pre sented JWP with a purchase contract that packaged these tax parcels together for renovation and operation as one affordable rental housing development. The project resulted from an application made by the City and RRHA to HUD for Section 8 funds in an eff ort to rejuvenate deteriorated areas of the City and decentralize assisted housing in connection with the City's Neighbo rhood Strategies program. A subsequent renovation was undertaken by JWP thirteen years following its purchase and was also financed thr ough VHDA. The renovations were endorsed by the City in a letter to the Deputy Director of the Department of Housing & Community Development stating as follows: The construction or rehabilitation of the Jackson Ward Apartments and the allocation of loan and/or grant money from the Virginia Housing Partnership and federal housing tax credits available under Internal Revenue Code Section 42 for that development will help meet the housing needs and priorities outlined in the City of Richmond's 1993 Comprehen sive Housing Affordability Study (CHAS). This project meets the stated priority of neighborhood preservation to conserve and improve physical structures. This project is in census tract 302 which the City has targeted as an area in which to concentrate it s rehabilitation efforts.32 332, 535 S.E.2d 163, 171 (2000)). Departing from this general rule, the majority judges Joseph's opinion not worthy of credibility and rejects his values as being the product of appraisal methodology it deems imp roper as a matter of law
. Neither the Con stitution nor the Code mandates, however, that the value of each tax parcel comprising Jackson Ward Apartments be determined without consideration of the other parcels , or that the highest and best use of the parcels be anyth ing other than an apartment community. 4 That , alone, distinguishes TB Venture from this case. In TB Venture , we upheld the circuit court's determination that the taxpayer failed to establish the fair market value of each condominium unit where the taxpayer's expert valued the condomin ium units as a whole and allocated an amount to each unit based on the unit's pro rata share of overall income. 280 Va. at 565, 701 S.E.2d at 795. Although the taxpayer appraised the condominium units as rental units, because Code § 55

- 79.42 requires eac h unit to be

4 Although Code § 58.1

- 3302, relied on by the City, requires the table of town or city lots to contain the name of the owner, the number of each lot, the value of the buildings on the lot, the value of the lot including building s, and the amount of tax at the legal rate, this administrative record

- keeping provision does not address the methodology to be used in determining the value of each lot . The majority cites several additional statutory provisions to reinforce its point th at tax parcels must be individually assessed, see Code §§ 58.1

- 3281,

- 3285,

- 3290,

- 3303 and

- 3309, none of which addresses appraisal methodology applicable in this case.33 appraised independently from the other units, the condominium complex could not be appraised as an apartment community notwithstanding testimony that there was no market for sale of one condominium. This was so because the highest and best us e of condominium units, registered as such, is mandated by
statute. See Orchard Glen East, Inc. v. Board of Supervisors , 254 Va. 307, 311

- 12, 492 S.E.2d 150, 153 (1997) (Under Code
§ 55

- 79.42, upon recordation of the condominium units, a condominium compl ex may not be treated as an apartment complex for purposes of valuing the condominium units for tax assessment). Since Code § 55

- 79.42 does not apply to the parcels comprising Jackson Ward Apartments, it does not prohibit appraisal of the parcels as an ap artment community. 5 Instead of analyzing whether the evidence supports the circuit court's finding that JWP proved the fair market value of the parcels comprising Jackson Ward Apartments, as the Court did in West Creek , the majority singles out methodology as the guiding principle in valuing real property and disregards the significance of the property's highest and best use to that methodology. In West Creek , we affirmed the circuit court's

5 While acknowledging Code § 55

- 79.42 does not govern this case, the majority reaso ns that individual assessment is a requirement applicable to all tax parcels. Under the majority's reasoning, then, any methodology comparable to that used by the taxpayer in TB Venture is improper, as a matter of law, for all tax parcels. But this ratio nale ignores a property's highest and best use, which necessarily controls the methodology.34 ruling that the taxpayer failed to prove the fair market value of the parcels at issue after reviewing the totality of evidence considered by the circuit court and the basis for its ruling. 6 In upholding the circuit court's findings, we recognized that "[i]t was within the province of the court, as the fact

- finder,
to determine the credibility of the witnesses." West Creek , 276
Va. at 416, 665 S.E.2d at 847 (internal quotation marks omitted) . Reviewing the evidence before the circuit court and deferring to its role as fact

- finder, we could not say that the circuit cou rt's findings were "plainly wrong or without evidence to support them." Id. at 417, 665 S.E.2d at 847. The majority, however, dispenses with the review it undertook in West Creek ,

6 T he circuit court ruled the taxpayer failed to prove fair market value of the parcels at issue for "several reasons." West Creek , 276 Va. at 417, 665 S.E.2d at 847. It found the taxpayer's expert appraiser "had not conducted an independent appraisal" but valued the 144 parcels at the sale price, which was negotiated as a bulk sale due to the large acreage. Id. The circuit court also noted that the method of sp reading the value of the 2,500

- acre development across the 144 parcels was "not persuasive" since the expert ignored the " 'economy of scale' " realized considering the sale price was discounted due to the large number of acres. In weighing the evidence b efore it, the circuit court found the testi mony from the County's expert " ' the most compelling. ' " Id. at 416, 665 S.E.2d at 847. The circuit court was persuaded by the expert's testimony that the highest and best use of the Park property was sale as in dividual parcels, not as a sale of "in excess of 2,000 acres" and that "[r]elying on [the bulk sale of the 2,500 acres] as an independent indicator of value for any of the 144 parcels would produce an appraisal report that would lack total credibility" and "be grounds for possible dismissal from The Appraisal Institute and probably revocation of one's appraisal license." Id. at 406, 665 S.E.2d at 841
.35 extrapolates from West Creek a finding that was affirmed because it was su pported by the evidence, and adopts it as the determining principle of law in this case to rationalize its reversal of the circuit court's judgment. In sum, TB Venture and West Creek do not support the majority's conclusion that Joseph's appraisal of the parcels comprising Jackson Ward Apartments was improper as a matter of law. Neither case purports to establish any rule of appraisal methodology or dictates the determination of highest and best use of the parcels comprising Jackson Ward Apartments. In

r emoving issues involving appropriate appraisal methodology from the realm of expert opinion and assuming for itself the role of final arbiter of proper appraisal practice in Virginia, I believe the majority has set a dangerous precedent. More importantly, I believe the majority's singular focus on methodology jeopardizes the constitutional right to just valuation of property.