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Dahm v. Town of Charleston

Supreme Court of Vermont

January 9, 2015

J. Herbert Dahm, Jr. and Arlene L. Dahm
Town of Charleston

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

APPEALED FROM: Superior Court, Orleans Civ. Division. DOCKET NO. 260-10-10 Oscv. Trial Judge: A. Gregory Rainville.

Marilyn S. Skoglund, Associate Justice, Beth Robinson, Associate Justice, Harold E. Eaton, Jr., Associate Justice.


The Dahms appeal from the superior court, civil division's order in this property tax appeal. We affirm.

The record indicates the following. In June 2010, the Town of Charleston notified the Dahms that the grand list value of their property was $93,000. The Dahms filed a grievance with the Town regarding the assessment. They did not challenge the validity of the grand list itself. The town denied the grievance, and the Dahms appealed to the Board of Civil Authority. The Board upheld the town's assessment, and the Dahms appealed to the superior court in October 2010.

After almost two years of discovery, the parties filed cross-motions for summary judgment. As relevant here, the Dahms argued that the town's 2010 grand list was invalid because the listers were unqualified and the grand list had not been properly adopted. The court found no evidence that the Dahms had complied with 32 V.S.A. § 5292(a) so as to allow them to challenge to the validity of the grand list. Section 5292(a) provides that:

A taxpayer shall not contest the validity of any tax assessed against his or her person, personal property or real estate nor the validity of the action of the listers or selectboard in assessing such tax nor the validity of any grand list unless the taxpayer filed his or her objections to the validity thereof, in the office of the town clerk where the tax is assessed, within a period of two months from November 15 of each year in which the tax is assessed.

See also Hojaboom v. Town of Swanton, 141 Vt. 43, 49, 442 A.2d 1301 (1982) (" [W]here a taxpayer asserts that the grand list is invalid because of the listers' noncompliance with relevant statutes, [the taxpayer] must file [the] objections as required by § 5292(a)." ), superseded on other grounds by statute as recognized in Harris v. Town of Waltham, 158 Vt. 477, 481, 613 A.2d 696 (1992). Given their failure to comply with the statute, the court concluded that the Dahms lacked standing to challenge the validity of the grand list on appeal. The court determined that there was one genuine issue of material fact for trial, that is, whether the value of the Dahms' property had materially changed between 2007 and 2010 as a result of the economic recession and certain land use restrictions adopted by the governing owners' association after 2007.

Subsequent to this ruling, in October 2012, the Dahms filed a motion to amend the scope of the appeal, seeking again to challenge the validity of the grand list. The Dahms asserted that the issue of the validity of the grand list was jurisdictional and that they discovered the failure of the listers for the first time during discovery. The court denied the motion, reiterating that the issue of whether the Dahms had timely contested the grand list had been resolved against them in the court's summary judgment ruling.

Following a December 2013 merits hearing, the court upheld the Board's assessment and set the listed value of the Dahm property at $93,000. It made the following findings. The Dahms own four parcels of unimproved land totaling 17.6 acres in the Winape Hills subdivision of Charleston, Vermont. The property is located one-half mile from Lake Seymour, but there is access to the lake via a common area with forty feet of lake frontage. All properties in the town, including the Dahm property, were assessed based on a 2006 municipal-wide reassessment.

The Dahm property had been the subject of a property tax appeal to the State Appraiser in 2007. The State Appraiser set the listed value at $93,000 for the years 2007, 2008, and 2009. This decision was not appealed. The State Appraiser found that the highest and best use of the property was for single-family-residential or vacation use. One of the lots could be developed with a single-family dwelling, but development of the other two lots with a water supply and septic system for on-site disposal would be difficult, if not impossible. The appraiser found that these lots could be used for vacation sites that provide access to the lake and that there was demand for such lots. The appraiser found the lots to be " ideal vacation spots" for recreational vehicle (RV) owners.

Land use in the Winape Hills subdivision is regulated by a property owners' association, which issues regulations delineating restricted uses. In August 2009, the property owners' association amended its regulations, forbidding the parking of nonmember-owned vehicles, including RVs. It additionally restricted owners from offering access to the lake for any fee or remuneration.

Based on these findings, the court first considered the Dahms' argument concerning the validity of the grand list. The Dahms argued that an Open Meeting Law violation rendered the town's grand list nonbinding which effectively meant there was no grand list and, consequently, no valid basis on which they could be taxed. As indicated above, the court rejected this argument in a summary judgment decision, and it found no basis to reconsider its ruling on this issue. The court reiterated that the Dahms had not complied with the statutory requirements to challenge the validity of the grand list within the required time frame. They did not file any challenge to the grand list with the town listers or with the BCA. The court also rejected the Dahms' assertion that the question of whether the grand list is valid was jurisdictional and that jurisdictional issues could be raised at any time ...

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