peet v. cornwall ( 2024 )

STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Addison Unit Docket No. 183-8-19 Ancv
EDWARD PEET
Vv.
TOWN OF CORNWALL
DECISION
Town of Cornwall’s Motion for Summary Judgment (Motion #1)
Edward Peet claims that the Town of Cornwall (“Town”) failed to hear his grievance
related to a change it made to his 2016-2017 tax assessment. He also claims that the Town failed
to honor a Town lister’s statement that his 2016-2017 grievance could be resolved together with
his 2017-2018 grievance. Mr. Peet requests that the court: (1) issue a declaratory judgment that
he has not waived his right to appeal the Town’s 2016-2017 current use tax assessment; and (2)
review the Town’s failure to reschedule the 2016-2017 grievance hearing. The Town moved for
summary judgment, arguing that Mr. Peet’s lawsuit is untimely and without legal basis.
For the reasons set forth below, the court denies the Town’s motion, concludes that Mr.
Peet is entitled to summary judgment, and remands the case to the Town for a grievance hearing.
Facts
The facts about events are undisputed. As discussed below, there are disputes about how
those facts relate to applicable legal standards. Based on the parties’ filings the following facts
are undisputed:
Mr. Peet owns real property in Cornwall, Vermont, a portion of which is enrolled in the
current use program. The Town issued a tax bill based on the 2016-2017 tax assessment. Then
the Town changed the assessment based on a change it made related to current use acreage. The
Town sent Mr. Peet a formal Notice to Taxpayer which specified the right to appeal, how to do
so, and that grievance hearings would be held on January 20, 2017 at 10:00 AM at the Town
office.! The Town also informed Mr. Peet of his right to grieve the change in a January 11, 2017
letter, which also specified that he had the right to grieve by filing a written notice and that “the
Formal Grievance Hearing is at 10:00 AM on the 20.” In a January 18, 2017 letter, Mr. Peet’s
attorney referenced the Town’s January 11™ correspondence and informed the Town that he
' Based on its change, the Town also sent a revised tax bill in a higher amount, which Mr. Peet paid.
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planned to pursue grievance and would attend the January 20 hearing. The Town’s January 11
letter specified that the change related to “changes in the acreage that is exempted.”
On January 20, 2017, at the scheduled time and place for the grievance, only one lister
was present at the Town office. There was no quorum and no grievance hearing was held. Mr.
Peet was present for the hearing and spoke with Susan Burdick, the one lister present. Mr. Peet
attests that Ms. Burdick told him he could resolve his 2016-2017 grievance through the 2017-
2018 grievance process, as he had also grieved his 2017-2018 assessment. On February 10, 2017
Mr. Peet’s attorney sent a letter to the Town regarding the 2016-2017 grievance in which he
addressed future scheduling of the 2016-2017 grievance due to upcoming vacations. No
continued grievance hearing was scheduled by the Town for the 2016-17 year.
On September 18, 2018, the two listers and four members of the Town Selectboard
certified in a Certificate attested by the Town Clerk that for the 2016 Grand List, “there are no
appeals pending from the action of the listers .. .” Such a certification, if true, is required by 32
V.S.A. §4155. At that time, there had been no grievance hearing scheduled or held and Mr.
Peet’s 2016-2017 grievance had not been resolved through the 2017-2018 grievance and appeal
process.
The parties mediated and settled the 2017-2018 appeal. The terms of both a signed
Settlement Agreement and Final Stipulation specified only the 2017-2018 and ensuing two tax
years. See Edward Peet v. Town of Cornwall, No. 171-10-17 Ancv (Vt. Super. Ct. May 20,
2019) (Final Stipulation and Order). The terms did not include resolution of the 2016-2017
outstanding grievance.
Mr. Peet filed this action on September 5, 2019 seeking to establish his right to pursue
grievance on the 2016-2017 change. The action is brought pursuant to V.R.C.P. Rule 75 seeking
review of governmental action. Mr. Peet claims deprivation of statutory and constitutional rights
of due process. The Town seeks summary judgment on five bases described below.
Analysis
The Town first argues that Mr. Peet did not properly perfect his appeal pursuant to
statutory requirements. Second, it argues Mr. Peet did not exhaust administrative appeal avenues.
Third, it claims that the Rule 75 claim was not timely filed. Fourth, it argues Mr. Peet
unreasonably relied on his conversation with Ms. Burdick, and as a single lister she could not
have bound the Town. Finally, the Town argues Mr. Peet is estopped from pursuing this lawsuit
because of the parties’ settlement agreement that resulted in the final order in the 2017-2018
case. Mr. Peet opposes the Town’s arguments and asserts that the Town’s failure to hold a
grievance hearing deprives him of due process rights.
A property owner has a statutory right to grieve a property tax assessment and have a
hearing before the Town’s Board of Listers, and the Listers have a statutory obligation to hear
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the taxpayer’s objections. The right is triggered by filing a timely written objection. 32 V.S.A. §
4222. If still grieved after hearing and determination by the Board of Listers, a taxpayer may
then appeal to the Board of Civil Authority. 32 V.S.A. §§ 4403-4404.
Town's claim of failure to perfect grievance right
32 V.S.A. § 4222 states:
The listers shall meet . . . to hear all persons aggrieved as aforesaid who have filed
their objections in writing; and . . . shall hear those appearing in person or by
agents or attorneys until all such objections have been heard and considered. All
objections filed in writing with the Board of listers at or prior to the time fixed for
hearing appeals shall be determined by the Board . . . and proper notification of
the listers determination shall be sent to the taxpayer.
The Town argues that Mr. Peet did not file his objections in writing with the Board of Listers
prior to the January 20 hearing, and that when a statute requires a specific act then that act is
mandatory, relying on Vt. Golf Ass’n v. Dep’t of Taxes, 2012 VT 68, 4 9, 192 Vt. 224. Ina
residential property tax appeal, the Vermont Supreme Court determined that the listers’ hearing
notes indicating a taxpayer’s grievances satisfied § 4222’s writing requirement. Gionet v.
Goshen, 152 Vt. 451, 456 (1989).
In this case there was a written objection. Mr. Peet’s attorney sent a letter on January 18
in response to the January 11 change in assessment stating that Mr. Peet intended to grieve the
tax assessment at the January 20 hearing. Mr. Peet’s letter referred to the Town’s January 11
letter, which specifically stated that the change in assessment was due to a change in acreage
exempted from the current use plan. The January 18 letter, with its reference to the Town’s own
January 11 correspondence, provided sufficient notice to the Town in writing as the basis for the
objection and grievance. There could be no question as to the issue on which Mr. Peet sought a
hearing.
Additionally, the Town argues that the record does not show that Mr. Peet filed written
objections on January 20, but he was not required to do so. He had already filed a sufficient
written objection, and January 20 was the date for a hearing which did not take place due to the
Listers’ failure to hold it.
The Town is not entitled to summary judgment on this ground. The January 18 letter
satisfies § 4222’s requirement that an aggrieved taxpayer must file his objections in writing prior
to or at the hearing because the letter indicated that Mr. Peet objected to the change in exempt
acreage and referenced the Town’s letter stating the reason for the change in assessment.
? The Superior Court considers an appeal from a Board of Listers’ determination pursuant to Rule 74. Here the
Board of Listers did not act, and this case was filed pursuant to Rule 75, not Rule 74.
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Town’s claim of failure to exhaust
The Town next argues that it is entitled to summary judgment because Mr. Peet did not
exhaust his administrative remedies. The Town argues that Mr. Peet did not appeal to the Board
of Civil Authority before filing this suit and that because he did not do so, he does not have a
claim subject to court review.
The Town relies on a Division of Property Valuation and Review rule, which states:
“(t]he board of civil authority shall hear an appeal filed within a reasonable time if action of the
listers has prevented the taxpayer from filing a timely appeal.” Division of Property Valuation
and Review Rule 82-1 § (32)4404(a)-1. In this case, there was no action by the Board of Listers.
Moreover, the rules also require the Board of Listers to “determine the appeals of all
persons who have filed their objections in writing. . . .” Id. § (32)4222-1. These rules echo the
statutory mandate: the Board of Listers “shail hear those appearing in person or by agents or
attorneys until all such objections have been heard and considered. All objections filed in
writing with the Board of listers at or prior to the time fixed for hearing appeals shall be
determined by the Board . . . and proper notification of the listers determination shall be sent to
the taxpayer.” 32 V.S.A. § 4222 (emphasis added). The Board of Listers’ obligation to hear
objections is mandatory, not permissive.
Because Mr. Peet objected in writing, the Town’s Board of Listers should have heard his
grievance. The Town seeks to shift the burden of pursuing his appeal to Mr. Peet. It was,
however, the Town’s burden to reschedule the hearing. The Board of Listers has no authority to
decline to hold a hearing or simply fail to hold a hearing. It is obliged to hold a hearing by
statute. It cannot shift to the taxpayer the obligation to pursue the Town to make sure a hearing is
held.
There may be situations when a taxpayer abandons an appeal. That is not what happened
in this case. The facts are clear that Mr. Peet’s attorney followed up after January 20" with the
letter of February 10" pursuing scheduling of a grievance hearing. It was the Board of Listers
that failed to hold its own scheduled hearing on January 20, 2017, and never rescheduled the
hearing it failed to hold. The Town is not entitled to fail to have a hearing and then claim that it
was the taxpayer who failed to exhaust administrative procedures. The Town is not entitled to
summary judgment on this ground.
Town's claim that the Rule 75 petition is untimely
Rule 75 provides as follows:
The time within which review may be sought shall be as provided by statute,
except that if no time limit is specified by statute, the complaint shall be filed
within 30 days after notice of any action or refusal to act of which review is
sought unless the court enlarges the time in accordance with Rule 6(b), and, in the
event of a failure to act, within six months after expiration of the time in which
action should reasonably have occurred. ...
V.R.C.P. 75(c). The Town argues that because Mr. Peet filed suit two and a half years after
February 10, 2017 (when his attorney sent the letter to the Town regarding his current use
grievance), and nearly one year after the Town certified its grand list indicating no remaining
2016-2017 appeals, the lawsuit is untimely .
However, the Town’s failure to act was not clear until May 20, 2019, when the court
incorporated the parties’ settlement agreement as to Mr. Peet’s 2017-2018 tax assessment
grievance into its final order without addressing the 2016-2017 grievance. There is no indication
that Mr. Peet knew, or had any reason to know, of the Town’s action in September of 2018
certifying that there were no pending appeals, so it is not reasonable to impose on a taxpayer a
deadline measured from that date.
As of May 20, 2019, it had become clear that the Town was not going to schedule a
hearing on the 2016-2017 grievance: Mr. Peet’s September 5, 2019 complaint was filed less than
six months later. Furthermore, the six month time period in Rule 75 is not jurisdictional. Alger v.
Dep’t of Labor & Indus., 2006 VT 115, 7 14, 181 Vt. 309. Mr. Peet timely filed this action, and
the Town is therefore not entitled to summary judgment on its argument that this Rule 75 claim
must be dismissed as untimely.
Town's claim of no basis to rely on Lister Burdick’s representation
Next, the Town argues that it is entitled to summary judgment because the administrative
record does not support Mr. Peet’s assertion that Town Lister Burdick discussed resolving his
2016-2017 grievance together with his 2017-2018 grievance. Yet, “[t]here is no formal provision
in the rule for filing the record, because many of the agencies reviewed may make no record as
such.” Reporter’s Notes, V.R.C.P. 75. Rule 75 review is not limited to the record if the parties
rely on something outside of the record, as Mr. Peet did here since the statement was apparently
made during an informal conversation that took place when the hearing was supposed to happen
but did not. Further, it is unreasonable to limit the court’s review to the record considering that
the claim concerns a hearing that did not occur and thus does not have a record. The court
concludes that it is not limited to the record and may consider Mr. Peet’s affidavit and verified
statements therein.
In a related argument, the Town argues that even if Ms. Burdick discussed Mr. Peet’s
2016-2017 grievance as he asserts, the Town cannot be bound by it because listers act as a board,
and one lister may not bind the Board of Listers. Whether Town lister Burdick bound the Town
in her conversation with Mr. Peet is immaterial because the essential fact is that the Board of
Listers never held a hearing or any opportunity at all to consider Mr. Peet’s 2016-2017 grievance
and it was mandated by statute to do so. It does not actually matter whether Mr. Peet relied on
his conversation with one lister. Consequently, the Town is not entitled to summary judgment on
its argument that Mr. Peet was not entitled to rely on such a conversation.
Town’s claim of estoppel based on settlement of 2017-2018 appeal
The parties dispute whether Mr. Peet is estopped from his sought remedies considering
that they settled as to Mr. Peet’s 2017-2018 grievance. Mr. Peet agrees that the settlement
agreement and subsequent final order have no precedential value for his 2016-2017 grievance,
but argues that he should still have the chance to present evidence regarding his objection to the
2016-2017 change. The Town argues that it entered the settlement agreement with the belief that
it was comprehensive and settled all outstanding “understandings and discussions” (though there
is no reference in the Stipulation or Order to the 2016-2017 grievance), that the four elements of
estoppel are present here, and that thus Mr. Peet should be estopped from claiming a right to
have his grievance heard.
Estoppel is grounded in “public policy, fair dealing, good faith, and justice. . . .” Fisher v.
Poole, 142 Vt. 162, 168 (1982). When considering an estoppel claim, the party seeking to apply
estoppel has the burden of establishing its four elements:
first, the party to be estopped must know the facts; second, the party being
estopped must intend that his conduct shall be acted upon or the acts must be such
that the party asserting the estoppel has a right to believe it is so intended; third,
the latter must be ignorant of the true facts; and finally, the party asserting the
estoppel must rely on the conduct of the party to be estopped to his detriment.
Id. (citations omitted). Here, Mr. Peet knew of his conversation with Town lister Burdick and
presumably knew that the 2017-2018 settlement did not address the 2016-2017 grievance, so the
first element is met. The facts presented with the summary judgment filings do not establish
whether the remaining three elements have been met. Neither the Settlement Agreement that
resulted from mediation nor the Stipulation and Final Order referred to the 2016-2017
assessment, and specifically referred only to the 2017-2018 assessment and subsequent years.
Moreover, public policy requires the Town to fulfill its statutory duty to resolve tax grievances,
and the undisputed facts show that the Town never provided a hearing on the 2016-2017
grievance. Thus, the Town is not entitled to estop Mr. Peet from asserting his statutory right to a
grievance hearing regarding his 2016-2017 tax assessment.
Mr. Peet’s claims of deprivation of constitutional rights
Finally, Mr. Peet argues that the Town deprived him of due process. He argues that when
the Town failed to reschedule the grievance hearing it deprived him of his property rights
pursuant to the Fourteenth Amendment of the United States Constitution and Articles 4 and 10 of
the Vermont Constitution.
Because Mr. Peet has shown that there is a statutory basis for his claims, as described
above, there is no need to address his constitutional arguments.
Summary
For the reasons set forth above, the Town’s Motion for Summary Judgment is denied.
While Mr. Peet did not file a cross motion for summary judgment, he did seek a
declaration that he had not waived his right to a grievance hearing, which is tantamount to a
request for summary judgment in his favor. The facts are undisputed, and the Town had full
opportunity to address Mr. Peet’s legal arguments that he remains entitled to a grievance hearing.
Therefore, the court grants summary judgment to Mr. Peet on his request for a declaration that he
is entitled to a grievance hearing on the change in his assessment in the 2016-2017 tax year.
ORDER
For the reasons set forth above, the matter is remanded to the Town of Cornwall for the
Board of Listers to conduct a grievance hearing on the change in the assessment in the 2016-
2017 tax year referenced in the January 11, 2017 Notice to Taxpayer and letter to Mr. Peet.
Dated this | 2M" ay of June, 2020.
Mary Miles Teachout
Superior Judge