Listers, Mount Up!

By Michael Tarrant

Garbitelli v. Town of Brookfield, 2011 VT 122

What’s the point of having one’s cake if you can’t eat it too?  Decorative cakes are lovely, but cake is for eating.  I, for one, do not understand this choice between having the cake or eating it.  Apparently, Taxpayer, our appellant in this case, doesn’t either.

Taxpayer’s appeal stems from the Town of Brookfield’s denial of his request for tax abatement.  Back in 2007, the Town decided to do a town-wide reappraisal of property values.  (Listerrrrrrs, mount up!)  Taxpayer, however, refused to allow the listers to inspect his property, aside from showing them his foyer and basement. Despite this setback, the listers went ahead and appraised Taxpayer’s house at $1.6 million. The logical inference one can draw from this is that the listers must have found Taxpayer’s foyer and basement to be truly magnificent. Feeling aggrieved, Taxpayer appealed and the SCOV affirmed the assessment back in 2009.

Apparently the Town of Brookfield enjoys reappraisals, and in 2009 the listers were back knocking on Taxpayer’s door.  Having learned his lesson, Taxpayers allowed the listers to view the rest of his property, and this time walked away with an assessment of only $957,000.  What this says about the listers’ opinion of the rest of Taxpayer’s property, only the listers know for sure, but clearly this was a win in Taxpayer’s book.

Sensing an injustice in the disparate appraisal values, Taxpayer moved for a tax abatement for the years 2007 and 2008. Vermont law allows for such an abatement in cases of “a manifest error or a mistake of the listers.”  Nevertheless, the Board of Abatement denied Taxpayer’s request, finding that there was no mistake attributable to the listers for those years because Taxpayer had denied the listers entry and therefore they were forced to rely on the only information available to them: the (most likely grandiose) foyer and basement. The Board also concluded that abatement procedures are not the proper vehicle to appeal property appraisals.

The superior court reviewed the Board’s actions under VRCP 75.  Declaring Rule 75 to be “the modern equivalent” of certiorari review, the superior court declined to conduct a de novo hearing, and instead confined its review to questions of law.  The superior court concluded Taxpayer failed to demonstrate abuse of discretion by the Board, and that Vermont’s abatement statute requires that any error or mistake must be attributable to the listers.  Here, the court concluded the error was a result of Taxpayer not allowing the listers into his home in 2007, and thus there was no abuse of discretion by the Board.  The court also agreed that abatement proceedings are not for the purpose of appealing property appraisals.

Taxpayer appeals to the SCOV with three arguments, claiming that the trial court erred by: (1) conducting its review on the record, rather than de novo; (2) concluding that the Board did not abuse its discretion by holding there was no “manifest error or mistake of the listers;” and (3) stating that Taxpayer cannot collaterally attack the 2007 and 2008 valuations via abatement. The SCOV affirms.

The SCOV agrees with the superior court’s asseveration that VRCP 75 is “the modern equivalent” of certiorari review.  Rule 75 allows for superior court review of governmental action where “such review is otherwise available by law.” Noting that review of governmental actions is typically limited to questions of law, the SCOV determines such review is typically limited to whatever factual record had been developed below.  

Taxpayer contends, however, that the SCOV’s decision in Chapin Hill Estates, Inc. v. Town of Stowe, 131 Vt. 10 (1972) requires de novo review here.  The SCOV disagrees.  Chapin Hill only stands for the proposition that additional evidence may be admitted to establish facts necessary to conduct the review.  Here Taxpayer himself conceded at oral argument that there were no factual disputes and that he had no additional evidence to admit.  Thus, the SCOV concludes the superior court did not err in conducting its review on the record in a limited manner pursuant to Rule 75.

Taxpayer’s second argument is based on the language of Vermont’s abatement statute.  The statute, in relevant part, states that the Board may abate “taxes in which there is manifest error or a mistake of the listers.”  The superior court read this language as meaning “any error or mistake must be attributable to the listers.”  Taxpayer’s argument is that the language of the statute does not require the error to be attributable to the listers, just that there be error.  

The SCOV agrees with Taxpayer that the superior court’s interpretation of the language was incorrect, but nevertheless reaches the same result.  Reviewing the Board’s decision for abuse of discretion, the SCOV and the parties agree that abatement is an equitable remedy, and thus “the maxim that a party seeking an equitable remedy must come to court with clean hands is fully applicable.”  In this case, the SCOV concludes that the Board was entitled to weigh the equities and because the Board found that Taxpayer had engaged in “unfair and inequitable conduct” by refusing to allow listers on to his property from 2006 to 2009, the Board did not abuse its discretion in denying Taxpayer’s abatement request.

SCOV makes short shrift of Taxpayer’s final argument, concluding that Taxpayer was merely trying to get “a second bite at the apple to relitigate his tax assessment.”  And that if Taxpayer had wanted SCOV to address his constitutionality claims, he needed to file a transcript of the superior court proceedings, which he failed to do.

In the end, no one likes taxes, but government isn’t going to pay for itself.  For those who feel they have been cheated by the system into paying more than their fair share, Vermont law allows them to seek abatement for any mistakes.  But as the SCOV holds, you do not get a do-over for your own poor choices.