Sunday, July 20, 2014

Two for the Price of One?

Hoiska v. Town of East Montpelier, 2014 VT 80

By Andrew Delaney

In this case, “two for one” is not so much a deal as it’s a potential penalty. The SCOV holds that an unrecorded survey with a supposed dividing line through it doesn’t legally break your property up into two lots. Dates become important in this case though.

Taxpayer has owned a 16.2-acre lot since 1977. In 1977-78, taxpayer had a survey done, which may or may not have included a line subdividing the parcel into two lots. From 1974-82, the town only required subdivision approval for a three-or-more-lot division. After 1982, approval was required for two-or-more—in other words, any—division. Now, in 1986, taxpayer recorded the 1977-78 survey. She never applied for nor received subdivision approval. Almost 15 years passed. 
Then town decided certain taxpayers with contiguous lots weren’t being taxed uniformly. In more-cynical terms, the town saw a missed income opportunity. Taxpayer’s property was assessed as having two lots. She grieved that assessment and got a reassessment that she didn’t find particularly helpful. She appealed the reassessment to the Board of Civil Authority, which affirmed the town’s valuation. Taxpayer then appealed to the state appraiser. In the end, the only issue was whether her property was properly assessed as two parcels instead of one.

Back to that survey . . . . Taxpayer testified that she recorded it in 1986 simply to preserve the possibility of subdivision, and that the line was a recent addition (in 1986) and a bit of an afterthought. The state appraiser didn’t buy it, reasoning that because the survey was completed in 1978 when the subdivision rules weren’t applicable to a two-way subdivide, taxpayer had effectively subdivided the property in ’78. Taxpayer appealed.

The SCOV notes that property must be assessed at its fair market value and sometimes that means that property gets taxed at its use potential rather than its current use. This means that subdivided lots may be assessed as including multiple housesites, even if only one house is on the property.

The standard of review is generally deferential, but especially so in this case. Findings of fact are set aside only if clearly erroneous, which is one thing. But because taxpayer didn’t order a transcript—oops—she bears the burden of proving that the state appraiser’s exercise of discretion was clearly erroneous. On statutory interpretations and questions of law, however, then SCOV calls 'em likes it sees ‘em (also referred to in less colorful terms as de novo).

“Look,” says taxpayer, “Drawing a line on a survey map doesn’t subdivide a property—that’s just silly.” The SCOV acknowledges the state’s appraiser’s reasoning that in 1978 when the survey was completed this kind of subdivision had no formal requirements, and explains that in this case, “The legal question, then, is whether under those circumstances the completion of a survey that includes a subdivision line, without more, automatically effects a subdivision.”

That’s a negative, ghost rider. The SCOV explains that a privately contracted survey can have hypothetical lines; it could be a tool to look toward an in-the-future subdivision. The landowner could reject the proposal and decide not to subdivide at all. So, without more evidence of intent to subdivide, the SCOV holds that survey lines on a privately contracted survey don’t subdivide property.

The SCOV seems to indicate that if the survey had been recorded when that’s all it would’ve taken to subdivide, the state appraiser’s reasoning might stand, but that’s not what happened here. The survey wasn’t recorded until 1986, when approval was required for a two-way subdivide. Taxpayer never tried to subdivide the property by applying for or receiving a permit.

So that’s it. The SCOV kicks it back to the town for a valuation of the property as a single lot rather than two contiguous lots.

Did you know that Top Gun was a 1986 movie and, “That’s a negative, ghost rider” comes from Top Gun? Well, if you didn’t, now you do.

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