Barrett v. Town of Warren

2005 VT 107, 892 A.2d 152, 179 Vt. 134, 2005 Vt. LEXIS 249

• Court: Supreme Court of Vermont
• Decided: September 16, 2005
• Docket: 03-545
• Status: Published

Opinions

Reiber, J.

¶ 1. The Town of Warren appeals a decision by the state appraiser reducing the listed value of taxpayer William Barrett’s condominium from its fair market value of $36,000 to $24,000 to reflect a deduction for “intangible assets” worth $12,000. We reverse.

¶ 2. Taxpayer owns a condominium in the Bridges Condominium Complex (Bridges), a group of 100 units whose owners are members of the Bridges Owners’ Association, Inc. The town listers entered the condominium in the Warren grand list for 2002 at a value of $36,000. This value was based on a town-wide reappraisal, adjusted to reflect the unit’s condition and recent sales of comparable units at the Bridges. Taxpayer appealed to the Warren Board of Listers, requesting that the listed value be reduced by $12,877.23 to reflect his share of the Association’s intangible assets, which he argued should not be subject to taxation as real property. The Board denied the appeal. Taxpayer then appealed to the Warren Board of Civil Authority (BCA) on substantially the same grounds. 32 V.S.A. § 4404. The BCA denied taxpayer’s appeal, finding that the listers properly relied on comparable sales in establishing an estimated fair market value for his property. Taxpayer then appealed to the state appraiser pursuant to 32 V.S.A. § 4461(a). The state appraiser conducted a de novo proceeding to determine the correct value of the property. 32 V.S.A. § 4467.

¶ 3. The state appraiser lowered the listed value from the property’s fair market value of $36,000 to an “assessment value” of $24,000. The appraiser’s decision to list taxpayer’s condominium unit at less than fair market value was based on a finding that ownership of the property included an “intangible asset of $12,000 for the subject property.” The appraiser concluded that this amount represented the value of taxpayer’s .88% interest in the assets of the Association, which had a total value of approximately $1,446,880 as of September 30, 2001, including over $1,000,000 in cash.

¶ 4. The Town of Warren contends that the state appraiser erred in setting the “assessment value” of taxpayer’s property substantially lower than its fair market value to reflect a deduction for taxpayer’s equity in the Association. Taxpayer argues that his equity in the Association is an intangible asset and therefore not subject to property tax, though he concedes that it contributes to the fair market value of his property. We reverse because the Town has met its burden of production, while taxpayer has failed to met his burden of persuasion. The Town complied with the plain language of 32 Y.S.A. § 3481 by listing the value of taxpayer’s property at its fair market value. Taxpayer provided no evidence that the valuation was arbitrary or unlawful, and his proposed valuation method has no legal support. The statute does not recognize adjusting the fair market value by the amount of a taxpayer’s interest in a condominium owners association. The state appraiser’s use of a nonstatutory deduction from fair market value violates the statute’s plain language. We therefore reverse.

¶ 5. This Court reviews decisions by the state appraiser to ensure that they are supported by findings rationally drawn from the evidence and are based on a correct interpretation of the law. Allen v. Town of West Windsor, 2004 VT 51, ¶ 4, 177 Vt. 1, 852 A.2d 627. We will not disturb a fair market value determination unless an error of law exists. Kachadorian v. Town of Woodstock, 149 Vt. 446, 448-49, 545 A.2d 509, 511 (1988). Absent compelling indication of error, interpretations of statutory provisions by the agency responsible for their administration will be sustained on. appeal. In re Vt. Health Serv. Corp., 144 Vt. 617, 622-23, 482 A.2d 294, 297 (1984).

¶ 6. The property taxation statute requires the listed value of real property to be equal to its appraisal value, which in turn must reflect its estimated fair market value. 32 V.S.A. § 3481(1)-(2).¹ In accord with the plain language of § 3481, we have held that “[t]he touchstone for property tax valuations is fair market value____” Sondergeld v. Town of Hubbardton, 150 Vt. 565, 567, 556 A.2d 64, 66 (1988); see also Royal Parke Carp. v. Town of Essex, 145 Vt. 376, 378, 488 A.2d 766, 767-68 (1985) (“[Section 3481] makes fair market value the standard for appraisal.”). Fair market value is “the price which the property will bring in the market when offered for sale and purchased by another.” 32 V.S.A. § 3481(1). There are several methods of estimating fair market value, one of which is sales of comparable properties “between a willing buyer and seller at arms length.” Barrett/Canfield, LLC v. City of Rutland, 171 Vt. 196, 199, 762 A.2d 823, 825 (2000), We have characterized the use of such sales as “the most persuasive method of appraising residential property in Vermont,” Sondergeld, 150 Vt. at 567, 556 A.2d at 66, although other methods are also acceptable. See Lake Morey Inn Golf Resort v. Town of Fairlee, 167 Vt. 245, 250, 704 A.2d 785, 788 (1997) (combination of market data approach and cost approach held consistent with statutory requirements for determining fail' market value); Town of Barnet v. Cent. Vt. Pub. Serv. Corp., 131 Vt. 578, 580-81, 313 A.2d 392, 393 (1973) (appraisers may use approaches including reproduction cost, earning power, construction cost less depreciation, “or the like” to determine fair market value). The fair market value, arrived at by any of these methods, takes into account all the elements of the property’s availability, “its use, potential or prospective, and all other elements ... which combine to give property a market value.” Town of Barnet v. New England Power Co., 130 Vt. 407, 411, 296 A.2d 228, 231 (1972).

¶ 7. The Town had the initial burden of production with respect to fair market value. Sondergeld, 150 Vt. at 567, 556 A.2d at 66. The Town met this burden by producing evidence of fair market value based on the average record sales prices of the Bridges. This is an acceptable valuation method that taxpayer does not dispute. See id. (concluding that town met burden of production by producing evidence of fair market value). Here, the Town and taxpayer agreed that the fair market value of the property is $36,000.

¶ 8. Because the Town met its burden of production, taxpayer retained the burden of persuasion as to contested issues. Id. at 568, 556 A.2d at 66. “The burden of proof is not met by simply impugning the Board’s methods or questioning its understanding of assessment theory or technique.” Id. Instead, “[t]o prevail a taxpayer must show an arbitrary or unlawful valuation.” Id. Taxpayer argues that the Town may not tax his interest in the Association because it :is intangible personalty, and that he is entitled to a dollar-for-dollar reduction of his share of association fees from the $36,000. Taxpayer relies on the Association’s balance sheets to support his argument. The balance sheets, however, prove only what his share was at the time the balance sheet was prepared. The sheets do not provide any support for his main argument that his interest in the Association has influenced the fair market value to the extent of $12,000. Taxpayer’s speculation “may or may not state a generally true principle in Vermont, but it is no substitute for evidence in a specific case.” Id.

¶ 9. Nor does taxpayer show an arbitrary or unlawful valuation. In fact, his theory of valuation has no support in the law. The intangible personalty taxpayer refers to, as the leading case in California put it, “cannot be separately taxed as property [but] may be reflected in the valuation of taxable property.” Roehm v. Orange County, 196 P.2d 550, 554 (Cal. 1948) (emphasis added); see also Mola Dev. Corp. v. Orange County, 95 Cal. Rptr. 2d 546, 557 (Ct. App. 2000) (citing Roehm with approval); American Sheds, Inc. v. County of Los Angeles, 78 Cal. Rptr. 2d 58, 62-63 (Ct. App. 1998) (citing Roehm and stating that “intangibles associated with the realty, such as zoning, permits, and licenses, are not real property and may not be taxed as such. However, insofar as such intangibles affect the real property’s value... they may properly contribute to an assessment of fair market value.”). This is all that has happened here. Were we to adopt taxpayer’s position, and require the Town to sever the value of an interest in the Association from the value of “the real-estate component” of a condominium unit, it would be difficult to assign a valuation method that could reliably discern the membership’s value.

¶ 10. The difficulty of taxpayer’s approach is evident in the state appraiser’s decision. The appraiser valued taxpayer’s ownership interest in the Association by simply calculating his .88% share of the Association’s total equity, failing to account for the fact that the Association membership imposes liabilities on taxpayer and any successor in interest, such as the obligation to pay monthly fees. Taxpayer considers these fees excessive and concedes that they probably detract from the fair market value of the unit. Nothing indicates that the appraiser’s valuation method arrives at an accurate value for the interest in question. Even were the method accurate, such an adjustment is not recognized by § 3481.

¶ 11. All of the elements, tangible and intangible, that combine to give real property fair market value are subject to property tax. 32 V.S.A. § 3481(1). For example, long-term leases appurtenant to real estate are subject to property tax, insofar as they affect the fair market value of real property. City & County of Denver v. Bd. of Assessment Appeals, 848 P.2d 355, 362 (Colo. 1993); see also Ry. Exp. Agency, Inc. v. Virginia, 358 U.S. 434, 442 (1959) (“No one denies the right of the State, when assessing tangible property, to ... give effect to the intangible factors which influence real values.”). The key inquiry is whether those intangible factors are so “intimately intertwined” with the real property that the property would not function without them. See In re Town of Plymouth, 479 A.2d 1388, 1390 (N.H. 1984) (holding that ski passes, furnishings, and prepaid cleaning charges, not appurtenant to the condominium, “are not specialized intrinsic features which make the condominium in question function as a condominium”); see also Appleby v. Nolte, 682 So. 2d 1140, 1141-42 (Fla. Dist. Ct. App. 1996) (holding that country club memberships, held by some residents and some nonresidents, and which were not prerequisites of residence, were not subject to property tax because they were personal property).

¶ 12. Taxpayer’s membership in the Association, as he concedes, would necessarily be conveyed to any purchaser of his condominium unit. The membership is a prerequisite of ownership at the Bridges, and is necessary to make the condominium function as a condominium. In all of these respects it is “intimately intertwined” with ownership of a unit. In fact, it is more than that; it is a quality of ownership of a unit in this complex, unique to owners of such units. Funds are drawn from the Association accounts for “common expenses” necessary to maintain the condominium common areas. Those funds are not accessible for personal or individually-determined uses according to the Association’s governing documents, which incorporate by reference the Vermont Condominium Ownership Act. 27 V.S.A. §§ 1301-1329. Accordingly, the interest in the Association is transferable only along with ownership of a unit.

¶ 13. Taxpayer’s interest in the Association is therefore substantially different from the country club memberships in Appleby and the ski passes and furnishings in Town of Plymouth. The disputed property in those cases was not appurtenant to real property, nor did it constitute “intrinsic features which make the condominium in question function as a condominium.” Town of Plymouth, 479 A.2d at 1390. The Association membership, in contrast, is an intrinsic feature of the condominium unit that permits the condominium complex to function as a whole. For example, the entire complex is benefited by regular upkeep of the common areas, and a cash reserve is necessary to discharge such obligations. The ownership interest in the Association positively influences the price a buyer is willing to pay for a unit in the Bridges. Therefore, the value of that interest may properly be taken into account when determining the real property’s fair market value.

¶ 14. There are limited situations in which the state appraiser may, consistent with the statute, disregard a sale and turn to other evidence of fair market value. These situations arise when “some evidence undermines the bona fide nature of the sale” by showing that either the buyer or seller was compelled to participate, or that the sale was not at arms length. Barrett/Canfield, 171 Vt. at 199, 762 A.2d at 825; see also Beach Props., Inc. v. Town of Ferrisburg, 161 Vt. 368, 375-76, 640 A.2d 50, 54 (1994) (sale between family members does not reflect fair market value); Vt. Nat'l Bank v. Leninski, 166 Vt. 577, 579, 687 A.2d 890, 892 (1996) (mem.) (price paid at auction following foreclosure does not reliably indicate fair market value). Taxpayer has produced no evidence to indicate that the sales relied upon by the listers and the BCA were not bona fide. To the contrary, they were precisely the sort of arms-length sales by which “a market value is perforce established for appraisal purposes.” Royal Parke, 145 Vt. at 379, 488 A.2d at 768. Indeed, both the appraiser and taxpayer concede that those sales established the fair market value of the property.

¶ 15. Because the Town has met its burden of production and taxpayer has failed to show an arbitrary or unlawful, valuation, we reverse the state appraiser’s decision setting taxpayer’s property in the Warren Grand List at less than its fair market value because it is contrary to the plain language of 32 V.S.A. § 3481 and § 4467.

Reversed.

1 32 V.S.A. § 3481(2) requires that the listed value of property be equal to 100% of its appraisal value, but we have acknowledged that precise equivalence is not necessary so long as all properties in a given town are listed at the same percentage of appraisal value. Allen, 2004 VT 51, ¶ 2. Section 3481(1) also permits a “use value appraisal” and, therefore, a listed value below fair market value for properties enrolled in the current use program, 32 V.S.A. §§ 3751-3763, which taxpayer’s condominium is not.