dissenting.
I must respectfully dissent from the majority opinion because the Court of Appeals correctly determined that the method of assessing unmined coal used by the Revenue Cabinet violates Section 172 of the Kentucky Constitution.
The trial judge entered a summary judgment in favor of the Revenue Cabinet, but the Court of Appeals reversed, determining that the Cabinet’s interim method of valuing unmined coal was unconstitutional and that this case was identical to the case of Dolan v. Land, Ky., 667 S.W.2d 684 (1984), which held that a mathematical formula used by a Property Valuation Administrator, and applied mechanically, failed to consider the particular individual characteristics of the specific farm property and resulted in its unfair valuation. Dolan, supra, was reaffirmed by this Court in Barrett v. Reynolds, Ky., 817 S.W.2d 489 (1991).
The interim method of assessment uses a rigid mathematical formula. It is based on acreage times thickness of the seams depending upon the county in which the coal is located. This is exactly the type of mathematical formula that is denounced in Dolan. The mathematical formula used by the Revenue Cabinet in assessing unmined coal does not take into account any of the factors that affect the value of the unmined coal. The Commissioner of the Department of Property Taxation, in his deposition, testified that the various factors which make a difference in the value of seams of coal were not taken into account by the interim method of assessing unmined coal.
A review of the record indicates that the uneontradicted affidavit of Ertel Whitt shows that there are not enough sales of tracts of coal to use a comparable sales method. Ordinarily, operating companies lease a tract of land rather than purchase it. Each tract of coal land is unique and requires taking into consideration all of the factors that affect the value of a particular tract. We must recognize that one of the difficulties facing the Revenue Cabinet in assessing unmined coal is that there is no market for unmined coal. Generally, coal is leased by operating companies, not purchased. Most sales are those of operating companies where an arbitrary figure is applied to the unmined coal in addition to the value of the plant, machinery and equipment. The fact that unmined coal valuation is difficult is no excuse for not using constitutionally mandated procedures.
In determining the fair cash value of a tract of unmined coal, as with any other property, an opinion of the value is determined by an individual who must have some expertise in the valuation technique. This is true of unmined coal, just as it is true for residential or farm tracts. Naturally, an opinion of such value is always an estimate. The problem presented to the Revenue Cabinet is that the record does not indicate that it has anyone among its staff engaged in this process who is acquainted with the unmined coal situation. Some expertise is required in order to give an opinion as to value.
The record reveals that the testimony of the Commissioner states that it would be “absolutely fiscally impossible for the State to attempt to do a detailed single property appraisal on every one of the million and a half parcels of real property in Kentucky.” This position would appear to be in direct violation of the principles established in Do-lan.
The same requirement of individual inspection which is imposed on local PVAs should be required of other state officials. The owner of a tract of unmined coal is entitled to the same consideration as the valuation assessments required to be given to owners of other residential and farm real property. The mechanical use of a mathematical formula violates the requirement of fairness in Kentucky Constitution Section 172 and Do-lan. The assessment and ultimate taxation of all property must be fair, uniform and conform to constitutional directives.
I would affirm the decision of the Court of Appeals.