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Wilkinson v. Westminster Board of Abatement

Supreme Court of Vermont

November 17, 2014

Howard C. Wilkinson
Westminster Board of Abatement

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter

Appeal from: Superior Court, Windham Civ. Division. DOCKET NO. 422-9-13 Wmcv. Trial Judge: John P. Wesley.



Reiber, C.J., Dooley, and, Eaton, JJ.

In the above-entitled cause, the Clerk will enter:

Taxpayer appeals pro se from the trial court's order upholding a decision by the Westminster Board of Abatement. We affirm.

The trial court found as follows. In August 2012, taxpayer purchased real property in Westminster, Vermont. At that time, the property was assessed at $458,000 for tax purposes. Taxpayer requested a tax abatement in December 2012, asserting that he had advertised the property for sale for $299,000 and received no offers. The Board denied his request. Taxpayer appealed the Board's ruling to the superior court, which upheld the Board's decision in September 2013. Taxpayer did not file a timely appeal to this Court from the September order.

Meanwhile, in April 2013, the town listers inspected taxpayer's property and reduced the property's assessed value to $244,600 for the 2013-2014 tax year. In June 2013, taxpayer requested that the Board abate all taxes paid on the property in excess of $244,600, retroactive to the date he purchased the property. The Board considered taxpayer's request at a July 2013 meeting. At that meeting, the chair of the town listers testified that the listers had not been allowed to access taxpayer's property for several years and thus, the property had been assessed based on the best information available. This witness also indicated that taxpayer's predecessor-in-title had never asked for a review of the assessed value of his property or filed a grievance. After deliberating, the Board denied the abatement request. It concluded that " the fact that correlation of new market data result[ed] in a reduction in grand list value does not necessarily mean the listers made a mistake."

In September 2013, taxpayer brought an action under Vermont Rule of Civil Procedure 75 seeking review of the Board's July 2013 decision. Taxpayer argued that the Board acted wrongfully and abused its discretion. The trial court rejected these arguments. It explained that the Board has wide discretion in ruling on abatement requests subject to very limited review by the court. In this case, the court found no evidence of " manifest error" sufficient to support abuse of discretion as a matter of law. It found that taxpayer essentially was seeking through the abatement process a remedy properly confined to property tax appeals. While taxpayer argued that the reduction of the assessed value of his property proved that the earlier valuation was " manifest error," the Board had concluded otherwise. It provided a sufficient reason for its decision, and it was not bound to expand on its rationale or to retrospectively parse comparative market data. While taxpayer's predecessor-in-interest might have compelled such an analysis through a property-tax appeal, he did not do so. The court also noted that taxpayer purchased the property knowing its assessed value, and it found that he failed to produce compelling evidence that the procedure that generated that assessment was fundamentally flawed. The court thus granted summary judgment to the Board. Taxpayer filed a motion for reconsideration, which the court denied. This appeal followed.

At the outset, we clarify that the only decision on appeal is the superior court's March 6, 2014 decision. Any arguments concerning the superior court's September 17, 2013 order are not before us and we do not address them.

Taxpayer argues that the Board was obligated to grant his request for abatement because he proved his claim for relief. He complains about the absence of formal findings of fact, and he challenges the grounds offered by the Board for its decision. Taxpayer asserts that the court exceeded its jurisdiction by ruling on the issue of " manifest error" even though the Board did not directly address this issue. Additionally, taxpayer asserts that he overcame the presumption of validity that attaches to the listers' valuation. Finally, taxpayer argues that he was denied due process.

We begin by addressing the nature of the abatement process. Pursuant to 24 V.S.A. § 1535(a)(4), an abatement board " may abate in whole or part ... taxes in which there is manifest error or a mistake of the listers." " The language in the [abatement] statute is entirely permissive," and the Board is not required to grant an abatement request " even if the taxpayer falls within one of the categories allowing for abatement." Garbitelli v. Town of Brookfield, 2011 VT 122, ¶ 14, 191 Vt. 76, 38 A.3d 1133. We have emphasized that " a taxpayer's request for abatement is not a substitute for a property tax appeal." Murray v. City of Burlington, 2012 VT 11, ¶ 14, 191 Vt. 597, 44 A.3d 162 (mem.); see also Garbitelli, 191 Vt. 76, 2011 VT 122, ¶ 17, 38 A.3d 1133 (stating that " the whole point of a tax abatement is to allow the Board to abate taxes for reasons other than that the property was assessed above fair market value" ).

As the trial court recognized, courts engage in a very limited review of an abatement board's decision. A Rule 75 proceeding such as this one is " the modern equivalent of extraordinary relief, such as certiorari," Garbitelli, 191 Vt. 76, 2011 VT 122, ¶ 6, 38 A.3d 1133 (quotation marks omitted), and the " purpose of certiorari is to review judicial action of inferior courts and tribunals in regard to substantial questions of law affecting the merits of the case." State v. Forte, 159 Vt. 550, 554, 624 A.2d 352 (1993) (explaining that " extraordinary relief must be based on usurpation of judicial power, arbitrary abuse of power, or clear abuse of discretion" ); see also Royalton Coll., Inc. v. State Bd. of Educ., 127 Vt. 436, 447-48, 251 A.2d 498 (1969) (explaining that scope of review under writ of certiorari extends to errors of law affecting merits, which includes evidentiary points only insofar as they may be examined to determine if any competent evidence to justify adjudication, much as in case of motion for directed verdict; judgment not reviewable on merits, and court's correctional power limited to keeping tribunal within limits of its jurisdiction and ensuring jurisdiction exercised with regularity). Thus, a taxpayer bears a heavy burden of showing error. See State v. Forte, ...

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