Franks v. Town of Essex, Rockingham Area Community Land Trust v. Town of Rockingham

2013 VT 84, 194 Vt. 595

• Court: Supreme Court of Vermont
• Decided: September 27, 2013
• Docket: 2011-359 & 2012-258
• Status: Published

Opinions

Reiber, C.J.

¶ 1. These cases raise the question of how nonrental residential properties subject to housing-subsidy covenants should be valued for property-tax purposes. Taxpayers in both cases contend that the governing statute mandates an automatic reduction in valuation for properties subject to these covenants or, what is effectively equivalent, a mandatory tax exemption on a portion of the property’s value. The towns in which these properties are located contend instead that the statute, 32 V.S.A. § 3481, requires that municipal listers give individualized consideration to the effect, if any, these covenants may have on the fair market value of a given property when they determine the appropriate assessed value for the allocation of property taxes. The Vermont League of Cities and Towns and the Vermont Assessors and Listers Association join the towns as amici curiae. We agree with the towns that the existence of a housing-subsidy covenant is but one of myriad factors listers and assessors must take under advisement in ascertaining a property’s fair market value.

¶ 2. In the first of these two cases, Franks v. Town of Essex, taxpayer Gillian Franks (Franks) owns an affordable-housing unit in the Town of Essex that is subject to a housing-subsidy covenant. After taxpayer appealed the assessed value of the unit, the state appraiser concluded that the mere existence of a housing-subsidy covenant does not automatically lower a property’s fair market value,¹ and found that in this specific case, the covenant did not, in fact, negatively affect the property’s value. Taxpayer appealed the state appraiser’s decision to this Court.

¶ 3. In the second case, Rockingham Area Community Land Trust v. Town of Rockingham, taxpayer Kathleen Margaret (Margaret) owns a house subject to a housing-subsidy covenant granting the land trust a ninety-day purchase option and ostensibly capping the amount she will receive upon the sale of her home to her original contribution, plus twenty-five percent of its appreciation and capital improvements. The house sits on land owned by the trust, which leases the land to Margaret. Under the terms of the ninety-nine-year lease, Margaret agreed to pay all property taxes assessed on the land and house. After the trust grieved the assessed value of the house and land on Margaret’s behalf, the state appraiser in this second case eventually concluded that, by law, housing-subsidy covenants automatically decrease a property’s value. The state appraiser then reduced the assessed value to a figure that appears to correspond to the property’s prior-year assessment, although the appraiser did not explain the calculation’s basis. The Town appealed the state appraiser’s determination to this Court.

¶ 4. We hold that the statute does not compel a so-called automatic reduction in property tax valuation for all parcels subject to a housing-subsidy covenant, but instead demands an individualized consideration of the effect a particular covenant has on a property’s fair market value. For the reasons that follow, we affirm the state appraiser’s determination in Franks but reverse the appraiser’s decision in Rockingham, remanding the latter case for consideration of the property’s value in light of our holding.

I.

¶ 5. Central to both these appeals is the meaning of our property-valuation statute. Taxpayers in both cases contend that the unambiguous statutory language of 32 V.S.A. § 3481 requires a decrease in the fair market value of a taxpayer’s property if it is subject to a housing-subsidy covenant. Vermont employs an ad valorem system for the taxation of property. That is to say, property is taxed in accordance with its actual value. “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.” Barrett v. Town of Warren, 2005 VT 107, ¶ 6, 179 Vt. 134, 892 A.2d 152 (citing 32 V.S.A. § 3481(1)-(2)). In Vermont, then, property is taxed in accordance with its fair market value and not. based upon an owner’s equity. A property’s estimated fair market value is defined by statute as “the price which the property will bring in the market when offered for sale and purchased by another, taking into consideration all the elements of the availability of the property, its use both potential and prospective, any functional deficiencies, and all other elements such as age and condition which combine to give property a market value.” 32 V.S.A. § 3481(1).

¶ 6. Since 1997, the municipal listers and assessors who determine property-tax valuations have been specifically required to include in this calculation “a consideration of a decrease in value in nonrental residential property due to a housing subsidy covenant.” Id.; 1997, No. 60, § 64. These covenants ,— designed to help maintain affordable housing — may include, among other things, restrictions on use, resale price, tenant income and rents, as well as limitations on the income of a purchaser of a housing unit for his or her own residence. See 27 V.S.A. § 610(b). The covenants are generally executed by lower-income homebuyers as a condition for the receipt of a purchase subsidy from the Vermont Housing and Conservation Board (VHCB) or its nonprofit partners, whose bylaws require that the subject housing be maintained as affordable housing on a perpetual basis. See 10 V.S.A. §§ 303(3)-(4), 321(a)(1).

¶ 7. Taxpayers in both cases maintain that the housing-subsidy-covenant “consideration” language in the property-tax-valuation statute requires listers to presume an automatic decrease in a property’s value based on the mere existence of a covenant of this type. Although deference to the state appraisers’ legal interpretation of 32 V.S.A. § 3481(1) is generally appropriate, it does not resolve this matter because two appraisers arrived at conflicting interpretations of the statute. Barrett, 2005 VT 107, ¶ 5 (Court will generally uphold state appraiser’s legal interpretation of § 3481(1) absent a compelling indication of error).

¶ 8. We begin by observing that on all issues of statutory interpretation we presume the Legislature intends the plain and ordinary meaning of a statute. Pease v. Windsor Dev. Review Bd., 2011 VT 103, ¶ 17, 190 Vt. 639, 35 A.3d 1019 (mem.). Here, the statute imposes a duty on municipal listers to include “a consideration of a decrease in value” from a qualifying housing-subsidy covenant. See 32 V.S.A. § 3481(1) (emphasis added). Words that are not defined within a statute are given their plain and ordinary meaning, which may be obtained by resorting to dictionary definitions. Pease, 2011 VT 103, ¶ 17. To “consider” generally means “to think about with care or caution,” while “consideration” is “continuous and careful thought” or “a taking into account.” Webster’s New Collegiate Dictionary 241-42 (1977). Other definitions we have consulted do not deviate from this general understanding. See, e.g., Webster’s International Dictionary 569 (2d ed. 1961) (defining the noun “consideration” principally as: “observation; contemplation,” “[the] [a]ct or process of considering continuous and careful thought; examination; deliberation; attention,” “[t]houghtful or sympathetic regard or notice,” and “[t]hat which is, or should be, considered as a ground of opinion or action . . . .”); Black’s Law Dictionary 277 (5th ed. 1979) (defining the verb “consider” as “to fix the mind on, with a view to careful examination; to examine; to inspect. [t]o deliberate about and ponder over. [t]o entertain or give heed to.”). Based on these definitions, a lister or assessor must give thought to and take into account a potential decrease in value as a result of a covenant. The very act of taking something under advisement in this manner does not suggest the sort of specific, preordained outcome of an automatic decrease in valuation.

¶ 9. Nothing in the statutory language suggests its drafters intended an interpretation that contradicts the plain meaning of “consideration” by imposing a rote reduction in assessed value for all properties subject to a housing-subsidy covenant. First, the drafters’ use of an indefinite article to describe any decrease in value attributable to a housing-subsidy covenant supports this conclusion. In describing the type of decrease for which listers must include consideration, the statute employs the indefinite article “a” — as in “a decrease” — which indicates that there may or may not be a reduction in value, instead of the definite article “the,” which would imply that the presence of a covenant necessarily reduces value. Cf. In re Swanton Mkt. Area, 112 Vt. 285, 291-92, 23 A.2d 536, 538 (1942) (distinguishing between “a loss” and “the loss,” and concluding latter phrase means “the definite loss which has occurred rather than an indefinite loss which may occur”). Second, even if the property-taxation statute could be understood to mandate a so-called automatic decrease in assessed value, its interaction with the housing-subsidy-covenant statute would leave unanswered the more vexing question of the amount by which to reduce a nominally restricted property’s value. Taxpayers’ interpretation would, in effect, mandate an automatic valuation decrease of an indeterminate amount. In cases where market evidence and analyses found absolutely no reduction in value, listers would face the unenviable task of reconciling an “automatic decrease” with the need to assign a value reflecting actual data. This is precisely the sort of absurd result we seek to avoid when interpreting statutes. See Shlansky v. City of Burlington, 2010 VT 90, ¶ 8, 188 Vt. 470, 13 A.3d 1075 (“In looking to the statutory language as an expression of legislative intent, we presume the Legislature intended an interpretation that furthers fair, rational consequences, and not one that would lead to absurd or irrational consequences.” (quotation omitted)).

¶ 10. From a public-policy standpoint, an individualized consideration is particularly important given the fact that not all housing-subsidy covenants are built alike. Great variation in their terms is permissible, and this variety could easily yield divergent market effects. See 27 V.S.A. § 610(b) (containing nonexhaustive list of restrictions and noting that covenants may be perpetual or time limited). Although the covenants “ran with the land,” id. § 610(e), they “may be amended or terminated by written agreement of the owner of the land and all persons or entities holding the right to enforce the covenant.” Id. § 610(d). Either the subsidy’s provider or a state-designated affordable-housing organ or nonprofit corporation to whom the right of enforcement has been assigned may enforce the covenants. Id. § 610(e). As illustrated by the record in both of these cases, the housing-subsidy covenants are frequently terminated by consent. The language in the Rockingham property covenant imposes no limitation on the ability of the parties — the taxpayer and the land trust — to terminate the restriction. The land trust involved in the Rockingham property can, in fact, extinguish the covenant through purchase, foreclosure or by agreement. Without individualized analysis of a covenant’s specific terms and the market context — an inquiry that may well discern no difference in estimated fair market value between the nominally restricted subject property and other unencumbered properties — the concept of a so-called automatic decrease would be meaningless.

¶ 11. Taxpayers cite Prowitz v. Ridgefield Park Village, 568 A.2d 114 (N.J. Super. Ct. App. Div. 1989), for the proposition that automatic decrease in assessed value is required. We find their argument unpersuasive. To begin with, the Appellate Division of the New Jersey Superior Court remanded that case for a consideration of the extent to which restrictive covenants affected the subject property’s tax valuation. Id. at 119 (remanding for effect of restriction to be taken “into account”). The court did not specify an automatic decrease, but instead mandated precisely the type of consideration we have said our statute commands. Furthermore, several salient distinctions convince us that Prowitz differs materially from the present case. First, the Prowitz court noted that municipal appraisers should assess neither the value transferred through an easement appurtenant to a dominant parcel, which enjoys a corresponding increase in value, nor the value transferred to the public more generally through an easement in gross. Id. at 117. The court also observed that “the whole gamut of governmental regulation imposing like restraints” exerts a “depreciating effect on value.” Id. at 118. Here, no such shift of value occurred, nor does governmental regulation for the public good categorically and perpetually reduce the properties’ fair market values. Although the Prowitz court spoke in glowing terms of the indisputable social good and public benefit of maintaining affordable housing, the court’s reasoning, in fact,- relied heavily on the existence of a statewide statutory obligation to provide a certain quantity of affordable housing within each jurisdiction. See id. (“[T]he provision of a fair share of affordable housing is, by reason of the Fair Housing Act, a municipal obligation imposed by statute.”). These restrictions helped the municipality in achieving its legally mandated lower-income-housing requirements, in effect offering a quid pro quo for the corresponding decrease in the municipal tax base.

¶ 12. It does not appear from the statutory language that the Legislature intended to impose such a laudable-but-sweeping requirement on Vermont municipalities.² Rather, the State created a program to facilitate lower-income home ownership by making provision for grants to eligible buyers to help defray the purchase cost. The regime seeks to restrain the future price of the same properties by requiring owners in most cases to forego a portion of a home’s regular market appreciation pursuant to a housing-subsidy covenant. In enacting amendments to the property-tax statute, the Legislature required listers to be mindful of the potential market impact of the housing-subsidy covenants that often accompany these grants. In doing so, however, the Legislature did not impose an affirmative duty on all town residents to personally subsidize these properties at the local level by forcing neighbors to shoulder a disproportionate share of the cost of education and municipal services. Yet this is precisely the interpretation urged by taxpayers in both cases. We therefore hold that the statute as written does not require the imposition of an automatic reduction in a property’s valuation.

II.

¶ 13. There remains the more fact-intensive question of whether the assessors and listers in these cases properly considered the effect, if any, of these covenants.'

A. Franks

¶ 14. Franks contends that, even if the property-taxation statute does not mandate an automatic decrease in valuation, the state appraiser abused his discretion in failing to defer to the methodology contained in a memorandum authored by the Director of the Division of Property Valuation and Review (PVR). Franks urges this Court to defer to the memorandum’s methodology rather than the state appraiser. Franks maintains that the evidence does not support the state appraiser’s finding that the housing-subsidy covenant resulted in no decrease in fair market value.³ We conclude that the state appraiser’s valuation was reasonably drawn from the evidence, and that the state appraiser correctly understood the issue presented.

¶,15. Franks bought the subject property in 2003 with the assistance of grants from Champlain Housing Trust (CHT), which is one of the entities to which VHCB makes housing-subsidy grants pursuant to its statutory authority.⁴ At the time, the property was valued at $130,000. Franks paid $81,250 and financed the remainder with grants of $48,750 from the housing trust and VHCB. She signed a covenant in which she agreed that, at resale, she would receive full credit for her capital improvements, plus twenty-five percent of appreciation. More specifically, the covenant provides that if Franks desires to sell the property, she must provide written notice to CHT and an appraisal must be performed. After completion of the appraisal, CHT has 180 days to locate an eligible buyer. If CHT locates an eligible buyer, taxpayer must sell the property to CHT for the “option price.” The “option price” is the owner’s original purchase price, plus any capital improvement credits, plus the owner’s twenty-five percent appreciation share, minus the grants provided by CHT and VHCB.⁵ The new buyer’s net purchase price is the option price plus CHT’s six percent fee. If CHT cannot locate an eligible buyer within 180 days, taxpayer may sell the property to any purchaser, provided that she repays the principal amount of the grants plus fifty percent of any increase in appreciation resulting from the conveyance.

¶ 16. In 2010, the Town assessed the value of Franks’ property at $173,900. Franks appealed this assessment to the Town’s Board of Civil Authority, which affirmed the Town’s valuation. Franks then appealed to the state appraiser. Franks argued that the Town improperly valued her home as if there were no covenant. That is to say, she claimed the Town treated the property as if she paid $130,000 in 2003, could have sold it for $173,900 in 2010, and could claim the full appreciation upon resale. She argued that it is unfair to tax her on the unrestricted value of her home because that value does not reflect the restrictions contained in the covenant. She cited a Department of Taxes memorandum authored by the PVR in support of her argument. The memorandum suggests valuing homes encumbered by housing-subsidy covenants by using the new buyer’s net purchase price, which is the option price plus a transaction fee. The Town argued that the assessor considered the existence of the housing-subsidy covenant, and that he found “no market evidence to suggest that the existence of the covenant had any impact on value.”

¶ 17. The state appraiser found that listers and assessors in some municipalities have determined that such covenants reduce properties’ fair market value, while others have determined they do not. For example, the City of Burlington applies an across-the-board reduction in property-tax bills for CHT homes. The state appraiser, however, did not interpret 32 V.S.A. § 3481 to require assessors to automatically lower fair market value or the listed value for property subject to a housing-subsidy covenant. Although such covenants must be “considered” by assessors pursuant to § 3481, the state appraiser said, comparable-sales data are needed to determine if the fair market value is in fact affected. Taxpayer presented evidence in support of her argument for a lower-listed value, but she did not present comparable-sales properties or other market evidence that the covenant affected the fair market value. Thus, the state appraiser found the best estimate of fair market value to be $174,300. Applying an equalization ratio of 99.79%, the state appraiser found the listed value of the property to be $173,900. The state appraiser did not defer to the PVR memorandum, reasoning that the methodology contained therein is only used as guidance if the assessor finds a decrease in value because of a housing subsidy covenant, and here, there was no such decrease.

1.

¶ 18. We reject the suggestion that we must defer to the PVR memorandum for several reasons. First, we defer only when there can be some legitimate dispute as to the meaning of the language in the statute the agency is charged with executing. We will not interpret statutory language in a manner at odds with the statute’s language merely because it comes from someone within .the agency charged with implementation. Even if we did defer to' the memorandum at issue here, the document’s language compels an outcome diametrically opposed to Franks’ argument. The PVR memorandum specifically states that it “outlines a uniform approach that local listers can employ for determining the listed value of owner-occupied homes subject to [housing subsidy covenants]” (emphasis added). It goes on to suggest a valuation approach, and that if an assessor chooses to use the valuation approach, he or she must work with the nonprofit and homeowner. Finally, citing § 3481, it notes that ‘Vermont law requires local assessment officials to consider the effect of this type of resale restriction when valuing this type of property.”

¶ 19. Deference to the PVR director is unnecessary here because the memorandum merely suggests a methodology to be used in valuing covenant-restricted properties. The memorandum restates the statutory language that a covenant must be considered. The memorandum specifically leaves the choice of whether to use its methodology up to the assessor. Thus, the state appraiser did not abuse his discretion in declining to follow the suggestion in the memorandum, and we decline to defer to the PVR director on appeal.⁶

2.

¶ 20. Franks next argues that the record does not support the state appraiser’s finding that the town assessor considered the impact of the covenant on the fair market value of the property. Franks also contends that the state appraiser’s reliance on the town assessor’s compiled list of ten condominiums sold in 2009 and 2010 was erroneous. Franks argues specifically that the list compares the sale of one home subject to a covenant to a number of homes not subject to covenants, and thus no comparable sales were used. She also maintains that the town assessor’s use of the prices paid for real property found on PTTRs was erroneous because those numbers include the grants provided by CHT, and taxpayer cannot realize that amount as equity in the property. Finally, she contends that the one home subject to a covenant was assessed without taking the covenant into account.

¶ 21. The state appraiser found that the town assessor took into consideration the housing-subsidy covenant, and that there was no decrease in value. Specifically, the state appraiser found that taxpayer presented evidence sufficient to rebut the presumption of the validity of the town assessor’s appraisal. However, he concluded that the price paid as reflected on a PTTR generally represents fair market value, and that the new buyer’s net purchase price is obviously lower than that on the PTTR because CHT subsidizes a portion of the cost. The state appraiser found that the CHT grant is akin to a zero-percent second mortgage or owner-financing that CHT recovers when the property is resold.

¶22. Before turning to Franks’ specific allegations of error, we emphasize the limited nature of our review on this factual issue. We defer to the state appraiser when the findings are supported by the record. Lake Morey Inn Golf Resort, Ltd. P’ship v. Town of Fairlee, 167 Vt. 245, 248, 704 A.2d 785, 787 (1997). Thus, if there is some basis in evidence for the valuation, in order to prevail the taxpayer must demonstrate that the state appraiser’s exercise of discretion was clearly erroneous. Id. We will uphold the state appraiser’s findings if they are rationally drawn from the evidence. Allen v. Town of W. Windsor, 2004 VT 51, ¶ 4, 177 Vt. 1, 852 A.2d 627.

¶ 23. Franks produced evidence, in part through testimony, in support of her arguments. Emily Higgins, the director of the Homeownership Center for CHT, explained generally how the grants work. She also testified that the fair market value of a covenant-restricted home is its restricted value, while the unrestricted value is used as a starting point from which to calculate the option price and the new buyer’s net purchase price. John Emmeus Davis, a partner at a consulting cooperative that specializes in affordable housing policy, testified that the' resale restrictions imposed by the covenant are a burden on the value of the property. He also testified that the list of condominiums sold in 2009 and 2010 does not demonstrate that the covenant does not impact fair market value because it looks at the unrestricted value, not the restricted value.

¶ 24. The town assessor testified that he took the covenant into consideration, and found no evidence that the covenant reduced the value of the property. He also testified that the covenant dictates the option price at which the owner must sell the property back to CHT, and the amount of equity the owner may realize upon sale, but that the covenant did not, in this case, affect the value of the property. The town assessor testified that he looked to 2009 and 2010 sales of condominiums in Essex, one of which was subject to a housing-subsidy covenant. Analyzing those sales, using the price paid for the property on the PTTR, he found no reduction in Franks’ property’s value.

¶25. Michael Mahoney, a real estate appraiser, testified that such covenants do not necessarily require a decrease in listed value, because the price at which someone sells or buys properties encumbered by such covenants is not always a reflection of the value of those properties. He testified that the restricted price is not arrived at by way of an arms-length transaction because it is the result of a contractual arrangement between the owner and CHT. The covenants affect the net amount that sellers receive when the property is sold, he said, but the financial assistance provided by CHT in the form of the grant does not actually reduce a property’s value. R. Todd LeBlanc, an assessor for the City of South Burlington, testified that he takes into consideration similar covenants, and that there has been no effect on fair market value. He testified that the covenants are essentially “back end loaded mortgages,” wherein CHT provides financial assistance in the form of grants, and upon resale, the grants plus seventy-five percent of equity that has accrued is repaid to CHT. He noted that because the City of South Burlington does not adjust the value of property based on the amount of any outstanding liability on the property, there is no basis for adjusting value in cases like this based on the amount of the grant.

¶ 26. Although Franks faults the comparable sales prepared by the town assessor, the burden of persuasion remained with Franks to show that the appraisal did not reflect the fair market value of the property. Kruse v. Town of Westford, 145 Vt. 368, 372, 488 A.2d 770, 773 (1985). Franks failed to carry that burden. Importantly, she did not present comparable-sales market evidence to show that the covenant reduced fair market value. Franks’ witnesses testified that the covenant affects fair market value.and that the restricted value is the property’s fair market value. The Town’s witnesses testified to the opposite conclusion — that CHT’s financial assistance, which must be repaid, does not affect the value of property and that the unrestricted price is the better indicator of fair market value. The state appraiser’s findings are supported by the testimony of the Town’s witnesses as to the effect of the covenant. The state appraiser was entitled to find on the basis of the evidence that the unrestricted value was the result of an arms-length transaction, and therefore was a good indicator of fair market value, in contrast to the restricted value. Although the record contains contradictory evidence, we defer to the state appraiser’s decision that the unrestricted price reflects fair market value in this case. Lake Morey Inn Golf Resort, 167 Vt. at 248, 704 A.2d at 787.

3.

¶ 27. Franks’ final contention is that the state appraiser misunderstood the issue presented and predetermined the outcome of this ease. At the hearing, the state appraiser stated that the issue to be determined was the listed value of the property, or the amount on which the owner pays taxes. He noted that the fair market value is the value determined by a licensed fee appraiser, and the listed value is determined therefrom. Franks argued that the issue was the fair market value of the home.

¶ 28. This argument merely reveals the parties’ use of different terminology, likely originating from the equation of fair market value with listed value in 32 V.S.A. §3481. As noted, “[t]he 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.” Barrett, 2005 VT 107, ¶ 6 (citing 32 V.S.A. § 3481(l)-(2)). While Franks used the term “fair market value,” the state appraiser was using the term “listed value.” Despite this difference in terminology, the transcript and the state appraiser’s decision reflect that the state appraiser understood the basic issue, which was how Franks’ home, subject to a housing-subsidy covenant, should be valued for property tax purposes.

B. Rockingham Area Community Land Trust

¶ 29. In Rockingham, it is the Town that appeals the state appraiser’s determination. The relevant facts are as follows. Margaret purchased her three-bedroom ranch house in Bellows Falls in June 2008. The previous owners had sold the property to the land trust for $100,700 and the land trust immediately sold the house to Margaret for $121,000. The land trust provided Margaret with $18,500 of the purchase price in the form of grants. The trust, which through a series of conveyances owns the underlying parcel in fee simple, leased the land to Margaret, who agreed as part of the accord to pay all ad valorem taxes on the land and house.

¶ 30. As a condition of receiving the purchase grants, Margaret executed a housing-subsidy covenant similar to the covenant to which the previous owners had agreed. By the terms of the covenant, the land trust possesses a ninety-day option to purchase the house for the lesser of the following: (1) the original purchase price of $121,000, minus the $18,500 grant, plus twenty-five percent of any appreciation on the property, plus credit for any capital improvements, or (2) the total appraised value of the property upon notice to sell, minus the $18,500 grant. The covenant contains three provisions for termination: when the land trust executes its purchase options; if Margaret’s mortgagees foreclose; or by written agreement between the land trust and Margaret.

¶ 31. In 2010, the town listers set a value of $152,000 for the property. Margaret appealed to the listers but was denied. She then appealed to the Town Board of Civil Authority, which lowered the total assessed value to $143,800. Margaret then appealed to the state appraiser, pursuant to 32 V.S.A. § 4461 et seq. The state appraiser in Margaret’s case found that “[n]either party offered any market data or sales to support market value showing that any properties were affected” by the housing-subsidy covenants. The state appraiser nevertheless concluded that the statute required an automatic reduction in listed value, and noted that the Town’s 2010 reassessment was not the result of a material change in the property or a town-wide revaluation before setting an April 1, 2010 value of $118,000, which appears to correspond to the prior-year listed value.

¶ 32. The Town appeals the state appraiser’s decision, arguing that the state appraiser erred by arbitrarily reducing the assessed value to $118,000 when Margaret had not presented any evidence tending to establish the covenant’s purported negative effect on fair market value or the amount of the alleged decrease. Margaret maintains that even without an automatic decrease in value, the state appraiser nonetheless reached the correct result in setting a taxable value of $118,000 because the covenants actually had the effect of reducing the property’s value to that amount.

¶ 33. [10] On appeal, “[t]his Court will affirm the State Appraiser’s decision as to fair market value if the findings were rationally drawn from the evidence and were based on a correct interpretation of the law.” Zurn v. City of St. Albans, 2009 VT 85, ¶ 7, 186 Vt. 575, 980 A.2d 795 (mem.). Here, we conclude that the record lacks the evidentiary support necessary to sustain the appraiser’s market-value determination on the basis of the covenant’s purported effect. When a taxpayer appeals a town’s listing to the state appraiser, the municipality bears the initial burden to produce evidence as to fair market value. Id. ¶ 7. A town’s valuation enjoys a presumptive validity on appeal to the state appraiser, but the taxpayer may rebut that presumption by producing admissible evidence. Allen, 2004 VT 51, ¶4. Once the taxpayer produces admissible evidence tending to prove the taxpayer’s claim, the town must produce some evidence to justify its appraisal, although the ultimate burden of persuasion remains with the taxpayer. Kruse, 145 Vt. at 372, 488 A.2d at 773. As the appraiser observed in his conclusions: “Neither party offered any market data or sales to support market value showing any properties were affected the by [sic] housing covenants.” Margaret thus failed to meet her burden of persuasion in her appeal to the state appraiser, and it was an abuse of discretion for the state appraiser to “pick a figure out of thin air.” Cf. Zurn, 2009 VT 85, ¶ 10 (affirming state appraiser’s rejection of discount where taxpayers did “not contest the State Appraiser’s findings that they offered no evidence as to what discount would be appropriate”). We therefore reverse the state appraiser’s decision and remand.

The state appraiser’s decision in Franks is affirmed; the state appraiser’s determination in Rockingham, is reversed and remanded for further consideration in light of this holding.

1 Section 3481 of Title 32 provides in relevant part: “Those elements [that combine to give property a market value] shall include a consideration of a decrease in value in nonrental residential property due to a housing subsidy covenant as defined in section 610 of Title 27 . . . .” 32 V.S.A. § 3481(1).

2 We note also that the Legislature knows how to mandate a specific method of appraisal if it wishes to do so. ‘We have repeatedly held that when the Legislature wishes to achieve a particular result, and shows that it knows how to do so, the failure to do so in a particular case will be respected.” Congdon v. Taggart Bros., Inc., 153 Vt. 324, 326-27, 571 A.2d 656, 658 (1989). In the statute, the Legislature has laid out a method for determining fair market value of residential rental property, mandating that “fair market value shall be determined by an income approach using” market rents with utility allowance adjustments, actual expenses incurred with respect to the property, a vacancy rate that is fifty percent of the market vacancy rate, and a capitalization rate that is typical for the geographic area. 32 V.S.A. § 3481(1)(A)-(D). By contrast, regarding nonrental residential property, the Legislature chose the phrase “[t]hose elements [that combine to give property a market value] shall include a consideration of a decrease in value . . . due to a housing subsidy covenant.” Id. § 3481(1).

3 Franks argues for the first time on appeal that the state appraiser’s interpretation of § 3481 violates the Proportional Contribution Clause of the Vermont Constitution because similarly situated taxpayers would be treated arbitrarily and inequitably. Taxpayer did not raise this argument below, and we therefore do not address it on appeal. See Garilli v. Town of Waitsfield, 2008 VT 91, ¶ 7, 184 Vt. 594, 958 A.2d 1188 (mem.).

4 The covenant was originally entered into with the Burlington Community Land Trust, which merged with another group in 2006 to form CHT.

5 Throughout this opinion, the option price is also referred to as the restricted value of the property, while the price paid as reflected on the Property Transfer Tax Return (PTTR) is referred to as the unrestricted value.

6 On January 3, 2012, a technical bulletin was issued by the Vermont Department of Taxes. The technical bulletin, like the PVR memorandum, “outlines a uniform approach that local listers can employ for determining the listed value of owner-occupied homes subject to resale restrictions as defined in 27 V.S.A. § 610” (emphasis added). Because the bulletin was issued after the.hearing and issuance of the state appraiser’s decision, we do not consider it on appeal.