Lauritz Rasmussen v. Town of Fair Haven ( 2016 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
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be made before this opinion goes to press.
2016 VT 1No. 2015-131
Lauritz Rasmussen Supreme Court
v. On Appeal from
Property Valuation and Review Division
Town of Fair Haven
December Term, 2015
Michael Bernhardt, Hearing Officer
Lauritz Rasmussen, Pro Se, Fair Haven, Plaintiff-Appellant.
William J. Bloomer of Bloomer & Bloomer, P.C., Rutland, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. EATON, J. Taxpayer appeals pro se from the Town of Fair Haven’s assessment
of his property for the 2014 grand list. We affirm.
¶ 2. Taxpayer owns real property in the Town of Fair Haven. The property consists of
three separately deeded contiguous parcels. There is a main house on one parcel and a rental
house on each of the two additional parcels. The town considers the property as one 7.58 acre
parcel. See 32 V.S.A. § 4152(a)(3) (defining “parcel” as “all contiguous land in the same
ownership, together with all improvements thereon”). The town has assigned a grade of 1 to a 2
acre house site, and a grade of .60 to 5.58 acres of excess land.
¶ 3. In 2014, the town listers assessed the value of the parcel at $585,800. Taxpayer
appealed to the Board of Civil Authority (BCA). Taxpayer would not allow the BCA members
to inspect the main house, however, and the BCA therefore considered the appeal withdrawn.
See id. § 4404(c) (stating that if appellant refuses to allow inspection of his property, appeal is
deemed withdrawn). Taxpayer appealed this decision to the Director of the Property Valuation
and Review Division, who assigned the case to a Property Tax Hearing Officer.
¶ 4. At the hearing, taxpayer argued that that the BCA erred in considering his appeal
withdrawn. He stated that he had appealed only a portion of the listers’ valuation to the BCA—
the value of the improvements concerning two rental properties and not the main house on a
separate lot—and therefore he was not obligated to allow the BCA to inspect the main house.
The town responded that because the properties were contiguous and in common ownership, by
statute, all of the property was treated as one parcel for purposes of assessment and the grand list.
The town indicated that this approach allowed all of the land to be included in the homestead and
to be assessed at the resident rate. See “Homestead,” Code of Vt. Rules 10 060 038,
http://www.lexisnexis.com/hottopics/codeofvtrules/ (explaining that term “parcel” is defined by
statute as “all contiguous land in the same ownership, together with all improvements thereon,”
and there is no acreage limitation on a homestead; accordingly, even if there are buildings or
improvements on land contiguous to the homestead that are not homestead property, the land is
part of the homestead and will be taxed at the homestead tax rate).
¶ 5. In a written order, the hearing officer concluded that the BCA had correctly
dismissed taxpayer’s appeal, and that there was no avenue for further appeal to the hearing
officer. As he explained, the law requires that:
Each property, the appraisal of which is being appealed, shall be
inspected by a committee of not less than three members of the
board [of civil authority] who shall report to the board within 30
days from the hearing on the appeal and before the final decision
pertaining to the property is given. If, after notice, the appellant
refuses to allow an inspection of the property as required under this
subsection, including the interior and exterior of any structure on
the property, the appeal shall be deemed withdrawn.
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32 V.S.A. § 4404(c).
¶ 6. The hearing officer reasoned that while the statute did not set forth precisely what
an inspection entailed, the statute’s purpose and plain meaning implied that an inspection must
involve a careful examination of the “property,” which necessarily must include an inspection of
any dwelling. Taxpayer denied access to the property’s main house, asserting that his appeal
was limited to improvements on other parts of his property. The hearing officer found that the
references in the statute and case law clearly referred to “property” and thus, in order for the
BCA to meet its statutory requirement, it correctly required inspection of the main house to
determine the property’s overall fair market value. The hearing officer thus held that the BCA
correctly dismissed taxpayer’s appeal. The Director approved the hearing officer’s order in
February 2015, and this appeal followed.
¶ 7. On appeal, taxpayer reiterates his position that his contiguous lots should be
assessed separately and that he is entitled to grieve a portion of his property assessment and
refuse inspection of the remaining portion. He argues that there is a difference between the term
“parcel” and “property,” and that the only “property” involved here was two lots that were
subject to a separate deed from the main house. Taxpayer maintains that he has the right to
decline an unreasonable search and that he could not waive a third party’s right to decline an
unreasonable search. Taxpayer also contends that, without notice or warning to him, the hearing
focused on a “technical issue”—whether the BCA properly deemed his appeal withdrawn—
rather than on evidence concerning the proper assessment of his property. Finally, taxpayer
suggests that the hearing officer coached and assisted the town representative during the hearing,
and that the hearing officer should have considered materials that he submitted following the
hearing by email.
¶ 8. As discussed below, we find no basis to disturb the hearing officer’s decision.
See Garbitelli v. Town of Brookfield, 2009 VT 109, ¶ 5, 186 Vt. 648, 987 A.2d 327 (mem.)
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(providing that on appeal to this Court, factfinder’s decision “will be deemed presumptively
correct,” and findings are conclusive if supported by evidence (citation omitted)).
¶ 9. We begin with the process by which the town compiles its grand list. Under the
law, the town listers must gather information and “make such personal examination of the
property which they are required to appraise as will enable them to appraise it at its fair market
value.” 32 V.S.A. § 4041. The listers must assess the value of certain personal property as well
as real property. See id. § 4152(a)(1). With respect to real property, the grand list must include
“[a] brief description of each parcel of taxable real estate in the town,” and the “listed valuation
of each parcel.” Id. § 4152(a)(3), (5). The term “parcel” is defined as “all contiguous land in the
same ownership, together with all improvements thereon.” Id. § 4152(a)(3).* It is evident that
the term “property” is broader than the term “parcel,” and it includes real and personal property
subject to assessment and taxation. As set forth above, a “parcel” is a unit of real property for
assessment purposes. By statute, a parcel is to be listed in the grand list and not its component
parts. Id. § 4152(5).
¶ 10. A property tax assessment is based upon a property’s fair market value, id.
§ 3481(1), and “[t]he fair market value of property is, in turn, based on the highest and best use
of the property.” Zurn v. City of St. Albans, 2009 VT 85, ¶ 8, 186 Vt. 575, 980 A.2d 795 (mem.)
(citation omitted). The valuation of a parcel at its highest and best use may consist of distinct
*
The Legislature added this statutory definition in 1996, thereby abrogating our earlier
decisions that addressed when property should be assessed as a single parcel for tax purposes.
See, e.g., Neun v. Town of Roxbury, 150 Vt. 242, 243-44, 552 A.2d 408, 410 (1988) (noting
absence of statutory definition of “separate piece or parcel” of taxable real estate for purposes of
compiling grand list, and identifying factors to guide assessors in determining if parcels of land
should be assessed separately or together, and noting that fact that parcels were acquired in
separate conveyances does not require that they be assessed as separate parcels if they currently
form a single tract).
Taxpayer appears to argue that the statute defining “parcel” is unconstitutional. This
argument was not raised below, and therefore we do not address it. See Bull v. Pinkham Eng’g
Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) (stating that arguments that are not presented
to factfinder are not preserved for appeal).
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valuations of actual or potential lots within the parcel. See, e.g., Lathrop v. Town of Monkton,
2014 VT 9, ¶ 14, 195 Vt. 564, 91 A.3d 378 (upholding town’s valuation of undeveloped parcel
for which taxpayer had obtained subdivision permit where valuation was based on assumption of
multiple house sites within undeveloped parcel); Hoiska v. Town of E. Montpelier,
2014 VT 80, ¶ 7, 197 Vt. 196, 101 A.3d 890 (“Even where land is not subdivided, it may be
appraised based on its development value as long as the valuation method is supported by
credible evidence.”). However, the applicable rules require the assessment of a taxpayer’s entire
property for purposes of the grand list. See Div. of Property Valuation & Review, § (32)4467-1,
Code of Vt. Rules 10 061 001 (requiring valuation of entire property). The rules specifically
provide that the state appraiser “shall review the listed valuation of an entire contiguous parcel of
land together with all buildings and fixtures thereon,” and that “[t]he erroneous valuation of a
portion of the property by the board of civil authority or listers shall not be disturbed where the
listed value of the property as a whole is correct.” Id. (emphasis added). Only after reviewing
the entire parcel can the BCA or the state appraiser determine if it should be valued as a single
lot, or whether it should be valued in some other way. Under the statute, the valuation subject to
appeal is that of the parcel as a whole, not individual constituent parts. See 32 V.S.A. § 4404(a).
¶ 11. This, of course, presumes that the members of the BCA are able to determine, in
the first instance, the listed value of the property as a whole. When a taxpayer appeals the
listers’ decision to the BCA, the law requires that “[e]ach property, the appraisal of which is
being appealed, shall be inspected” by at least three BCA members. Id. § 4404(c). Nothing in
the statute supports taxpayer’s argument that the term “property” is based on deeds filed at the
town clerk’s office; this approach is inconsistent with the statutory scheme. The use of the term
“property” here plainly refers to a “parcel” because “parcels,” and not their component parts, are
what must be included in the grand list. The appraisal at issue is the appraisal of the parcel as a
whole because, again, this is what is reflected in the grand list. Nothing in the statute allows a
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taxpayer to single out a particular component of his parcel and appeal only the valuation of that
component.
¶ 12. If a taxpayer refuses to allow an inspection of his or her property, the appeal is
deemed withdrawn. Id. This is because an inspection is a critical component of an assessment.
As we have explained:
At the BCA appeal stage, the BCA acts as a “statutory factfinder
which takes into consideration the view taken by a subcommittee
along with all of the other evidence before it,” including evidence
derived from an inspection of the property in question. Devoid v.
Town of Middlebury, 134 Vt. 69, 72, 350 A.2d. 349, 351 (1975).
Though § 4404(c) does not set forth precisely what the inspection
entails, the plain meaning of the statutory language, together with
the purpose of the statute, imply that an inspection entails a careful
examination of the property, which would necessarily have to
include an inspection of the interior of any dwelling. See id. at 72,
350 A.2d at 352 (incorporating a definition of “inspect” as “to
view and examine officially”) (quotation omitted).
Garbitelli, 2009 VT 109, ¶ 9. We reject taxpayer’s suggestion that an inspection of property by
the listers, BCA, or hearing officer, is an “unreasonable search.” See State v. Schofner, 174 Vt.
430, 434, 800 A.2d 1072, 1076 (2002) (mem.) (rejecting argument that listers, who were
inspecting property for property tax assessment, engaged in “search” subject to Fourth
Amendment). Obviously, a taxpayer can refuse to allow an inspection; the consequence is that
the taxpayer will be unable to challenge the assessment of his or her property. See, e.g.,
Garbitelli, 2009 VT 109, ¶ 10 (recognizing that in absence of adequate inspection, there is simply
no way taxpayer can present evidence needed to extinguish presumption that challenged
appraisal is valid).
¶ 13. Because the statute makes taxpayer’s lands one parcel for tax purposes, taxpayer
was obligated to make any lands comprising the parcel available for inspection. Taxpayer
refused to allow a complete inspection of the properties comprising his single parcel, including
an “inspection of the interior of any dwelling,” and the appeal was properly considered
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withdrawn. As the appeal was withdrawn at the BCA level, the BCA made no findings as to the
appropriate valuation, and the hearing officer had no jurisdiction to consider de novo the
appraised value of the property. We note that taxpayer indicated at the hearing that he would
refuse to allow the hearing officer to inspect his home. This refusal, as in Garbitelli, 2009 VT
109, ¶¶ 10-11, would lead to the same result reached here: an affirmance of the listers’
assessment of his property. The hearing officer properly upheld the BCA’s decision that
taxpayer’s appeal was withdrawn.
¶ 14. Finally, we find no irregularities in the proceedings below. We reject taxpayer’s
assertion that he was blindsided when the hearing officer focused on his refusal to allow the
inspection of his property and affirmed the action taken by the BCA. The BCA had deemed
taxpayer’s appeal withdrawn, and it was this decision that taxpayer appealed. We note that
taxpayer raised this issue in his notice of appeal, arguing that the BCA violated his due process
rights by deeming the appeal withdrawn because the BCA had improperly tried to expand its
inspection to include the main house. In any event, the scope of the appeal was not limited to the
issues identified by taxpayer in his notice of appeal, and the town did not need to file an
objection to the appeal under 32 V.S.A. § 4463 to enable the hearing officer to consider if he had
authority to consider the appraised value of the property de novo. See City of Barre v. Town of
Orange, 138 Vt. 484, 486, 417 A.2d 939, 940 (1980) (recognizing that scope of appeals not
limited by notice of appeal, and Court is particularly reluctant to limit scope of inquiry in tax
appeals, where review is de novo).
¶ 15. In a proper appeal, the BCA issues a decision on the merits, which is presumed
valid in an appeal to the hearing officer, with the burden on the taxpayer to overcome the
presumption of validity. Garbitelli, 2009 VT 109, ¶ 10. Here, due to taxpayer’s refusal to allow
an inspection, the BCA could not and did not make any findings or ruling on the merits. The
only decision on appeal is the BCA’s determination that taxpayer had withdrawn his appeal from
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the listers’ appraised value by refusing to allow the inspection. It would be inconsistent with the
statutory scheme and with our case law to allow a de novo hearing on the appraised value of
taxpayer’s property in the absence of any ruling on the merits from the BCA.
¶ 16. The entire focus of the hearing, moreover, was whether the BCA correctly
concluded that the appeal was withdrawn, and taxpayer made no objection that he lacked proper
notice that this issue would be discussed, nor did he assert that he needed additional time to
present arguments on this point. In fact, taxpayer clearly stated his position below. He believes
that he is entitled to allow an inspection of only a portion of his property. We have rejected that
position above as inconsistent with the law. The hearing officer did not err in declining to
consider additional materials that taxpayer submitted by email after the close of the hearing.
Even if these materials had been considered, they would not change the result. Lastly, the record
does not support taxpayer’s suggestion that the hearing officer assisted the town’s representative
to the detriment of taxpayer. We have considered all of taxpayer’s arguments and find them all
without merit.
Affirmed.
FOR THE COURT:
Associate Justice
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