STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVJL ACTION DOCKET NO. AP-JOf6 ftlMt~ ~· Kt}J ·· ;t, j't /)-u 2 1
INHABITANTS OF THE TOWN OF MILFORD and CITY OF OLD TOWN, Petitioner
v. ORDER ON RULE SOC APPEAL
PPL MAINE, LLC, Respondent
Before the Court is the town of Milford and city of Old Town's appeal brought
pursuant to M.R. Civ. P. 80C from a September 30, 2010 Decision of the State Board of
Property Tax Review granting PPL Maine's abatement appeals for the April 1, 2007 tax
assessment date. Oral argument on this appeal was conducted on November 17, 2011.
FACTS
PPL Maine, LLC (PPL) owns a large hydroelectric dam on the Penobscot River
between the towns of Milford and Old Town ("the Large dam") and a smaller dam that
runs across the Stillwater River located in Old Town ("the Small dam") (together "the
Property"). The Property was assessed as one economic entity for purposes of taxation.
Milford and Old Town ("the Towns") have informally agreed to apportion the Property
1 75% to Milford and 25% to Old Town, due to the fact the physical power plant is located
in Milford. (May Tr. 8.)
The tax year in question is 2007-2008, and the corresponding valuation date was
April 1, 2007. For that date, Milford assessed the Property as a whole at $17,737,833.
Its 75% share would have been $13,303,375, but Milford applied an 80% "assessment
ratio" to the property for that year. 1 (May Tr. 7.) Thus, Milford actually assessed PPL
$10,642,700 for the taxable year. For the same date, Old Town assessed the Property as a
whole at $20,480,000. Its 25% share was $5,120,000, which amount was actually
assessed because it applied a 100% assessment ratio for that year. Additionally, Old
Town assessed the Small dam separately, at $394,200. (May Tr. 7.)
In February 2008, PPL filed separate abatement requests with Milford and Old
Town, both of which were denied. PPL then filed separate petitions for assessment
review with the State Board of Property Tax Review ("the Board"). (R. Folder #2l The
Board held a three-day hearing on May 11, June 15, and July 27, 2009.
The Board considered the following evidence during deliberations on September
25,2009:
I. PPL's impeachment of the Towns' original assessments
The basis for Milford's original assessment of $17,73 7,83 3 for the Property
overall is unclear. At the hearing, Richard Sands testified in his capacity as "assessor's
1 "Assessment ratio" refers to the ratio of a property's assessed value to its fair market value. 2-23 Bender's State Taxation: Principles and Practice § 23.01 [2][b] (2011). Maine law places limits on assessment ratios. 36 M.R.S.A. § 327. 2 Aside from the transcript, the Record is divided into two folders with no page numbers or other organization within.
2 agent" for Milford. Mr. Sands did not take on that role until summer 2008, after taxes
had been assessed for the April 1, 2007 valuation date. (May Tr. 54.) Based on his
testimony, Mr. Sands had no significant understanding as to how the April 1, 2007
valuation was determined. (May Tr. 55, 59, 64). He could not point to any
documentation in Milford's possession to explain the valuation, nor could he confirm
whether the town had considered the "income approach" in arriving at the final
assessment. (May Tr. 59, 61, 64, 67.) Mr. Sands testified that his predecessor, Mark
Gibson, informed him that he "carried forward a number that was on the plant when he
arrived," and continued to use it for the approximately three years he held the post. Mr.
Gibson did not know where the figure came from. (May Tr. 68.)
The basis for Old Town's assessment of $20,480,000 for the Property overall is
more clear, but does raise potential questions of reliability. At the hearing, William
Mayo testified in his capacity as Old Town's tax assessor, a post he held on the April 1,
2007 assessment date. (May Tr. 70.) Mr. Mayo testified that Old Town's assessment of
the Property was the product of a city-wide revaluation for the 2007-2008 tax year
conducted by Tyler Technologies. (May Tr. 70-71.) Gymp Grube, a commercial
appraiser at Tyler Technologies, produced an appraisal report recommending the
$20,480,000 assessment value for the overall Property. (May Tr. 88; R. Folder #2.) The
Small dam was assessed separately under a "replacement cost less depreciation" analysis,
causing some confusion over whether it was double-counted. (May Tr. 76-78.)
Mr. Grube himself did not testify, and his half-page, hand-written appraisal report
of the Property was the only evidence of the valuation process. (May Tr. 125; R. Folder
#2.) Mr. Mayo testified that nobody performed an income analysis in the course of the
3 appraisal. (May Tr. 103.) Mr. Grube based his assessment largely on the price per
kilowatt generated from the sales of two different dams, one in Millinocket in 2002 and
one in Rumford in 2006. As the appraisal report reflects, the Rumford facility sold for
$3,659 per kilowatt and the Millinocket facility sold for $1,327 per kilowatt. (R. Folder
$2.) Mr. Grube averaged the two values, then adjusted that figure upward with the
denotation "closer to more recent sale+ high efficiency." (May Tr. 82-83 .) However,
there was no explanation made as to how differences in efficiencies, expenses, and other
attributes might affect a valid sales-to-sales comparison. (May Tr. 85, 110.) The
appraisal report also adjusted upward an additional 5% due to "expansion capacity,"
although there was no analysis of the practicality or effects of expansion. (May Tr. 83.)
II. PPL's evidence of alternative value
PPL called George Lagassa (Mr. Lagassa) as an expert witness, who had prepared
an appraisal report. (May Tr. 11-12.) The Towns called Stephen Traub (Mr. Traub) as
an expert witness who had prepared a review report of Mr. Lagassa's appraisal report.
(May Tr. 12.) Through Mr. Lagassa, PPL asserted that the property as a whole should be
valued at $10,974,000, with $2,524,020 (23%) allotted to Old Town and $8,449,980
(77%) allotted to Milford. (June Tr. 121.) Mr. Traub, in a review capacity, testified that
the property overall should be valued at $18,542,000, with $4,264,660 (23%) allotted to
Old Town and $14,277,340 (77%) allotted to Milford. (June Tr. 245.) Mr. Lagassa's
expert opinion was largely premised on the theory that electricity costs would decrease in
future years. (June Tr. 137.) His theory was based on the United States Energy
Information Administration's "Annual Energy Outlook." (June Tr. 198.) Mr. Traub, on
the other hand, used the rate of inflation to forecast energy prices. (June Tr. 240.)
4 The Board considered this evidence during its deliberations of September 25,
2009. The Board's final decision, dated September 30, 2010, found that PPL had
successfully impeached the credibility of the Towns' assessments and adopted PPL's
assessment of the whole Property at $10,974,000. The Towns appealed to Superior Court
under M.R. Civ. P. 80C.
STANDARD OF REVIEW
In this case, there are two standards of review to consider: First, this Court's
standard in relation to the Board's decision, and, second, the Board's standard in relation
to the Towns' original assessment figures.
This Court reviews the Board's decision directly for "abuse of discretion, error of
law, or findings not supported by the evidence." Rangeley Crossroads Coal. v. Land Use
Regulation Comm 'n, 2008 :ME 115, ~ 10, 955 A.2d 223 (citations omitted). 3 The court is
bound to uphold factual findings if there is "any competent evidence in the record to
support [them]." Concerned Citizens to Save Roxbury v. Bd. ofEnvtl. Prot., 2011 :ME 39,
~ 24, 15 A.3d 1263 (citation and quotation omitted). To determine whether substantial
3 Under the statutory iteration ofthe standard of review, the Superior Court may only reverse or modify the Board's decision if it is: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority ofthe agency; (3) Made upon unlawful procedure; (4) Affected by bias or error oflaw; (5) Unsupported by substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion. 5 M.R.S.A. § 11007(4)(C). Note that the Court also has broad discretion to "[r]emand the case for further proceedings, findings of fact or conclusions oflaw or direct the agency to hold such proceedings or take such action as the court deems necessary." Id. § 11007(4)(B).
5 evidence exists to uphold the Board's decision, the court "examine[s] the entire record to
determine whether the agency could fairly and reasonably find the facts as it did." !d.
This holds true even when the record is inconsistent or could support different
conclusions, as long as "a reasonable mind might accept the relevant evidence as
adequate to support the [administrative] conclusion." Town ofVienna v. Kokernak, 612
A.2d 870, 872 (Me. 1992). 4 The Party seeking to overturn an agency decision bears the
burden of persuasion. Zegel v. Bd. ofSoc. Worker Licensure, 2004 ME 31, ~ 14, 843
A.2d 18 (citation omitted).
In an appeal before the Board, municipal assessment figures are entitled to a
presumption ofvalidity. Northeast Empire P'ship #2 v. Town ofAshland, 2003 ME 28, ~
7, 818 A.2d 1021 (citation omitted). As the taxpayer petitioning for abatement, PPL bore
the burden of proving that the Towns' assessment in relation to just value was
"manifestly wrong." Waterville Homes, 655 A.2d at 367 (quoting Delta Chemicals Inc.
v. Searsport, 438 A.2d 483,484 (Me. 1981)). An assessment is "manifestly wrong" if it
was the product of (1) substantial overvaluation, (2) unjust discrimination, or (3) fraud,
dishonesty, or illegality. Northeast Empire P'ship #2, 2003 ME 28, ~ 7, 818 A.2d 1021
(citation omitted). A showing of overvaluation requires affirmative, credible evidence of
just value, not just impeachment of the original assessments. Id; Waterville Homes, 655
A.2d at 367; Yusem v. Town ofRaymond, 2001 ME 61, ~ 13, 769 A.2d 865.
4 The Law Court has said that the "compels a contrary result" standard, urged here by PPL, only applies when the appellant bore the burden at the administrative level. Martin v. City ofLewiston, 2008 ME 15, ~ 11 n. 4, 939 A.2d 110. The Towns (appellant here) did not have the burden in front of the Board, so the Court declines to use that standard.
6 DISCUSSION
The Towns and the Board both treated the taxpayer's burden in front of the Board
as requiring two steps: (1) impeachment of the Towns' original assessments, and (2)
credible evidence of alternative value. As such, the thrust of the Towns' first issue in its
Initial Brief was that "The State Board Committed Reversible Error in Not Applying the
Proper Legal Standard in Determining that PPL Had Impeached the Assessments." (Br. of
Pet. 8) (emphasis added.) Most of the examples cited in the Towns' brief for this
position, however, were actually a part of the Board's discussion regarding PPL's
offering of evidence of alternative value. The Towns clarify in its Reply Brief that the
Board also erred with respect to the "burden to present credible evidence of value."
(Reply Br. of Pet. 1, 5.) Thus, the Court considers here, more broadly, whether the Board
properly applied that burden and not what it treated as the initial burden of impeachment.
The Court notes that, with respect to the first step, there is no question that PPL
met its burden to impeach the original assessments and that the Board was satisfied by its
effort. The Board's discussion of the Town's original assessments was confined to the
beginning pages of the deliberations record and quickly resolved the issue in favor of
PPL. 5
5 Specifically, the Board found the following evidence most compelling: First, the apparent lack of any sound basis for the Milford assessment, except "a figure that was arrived at several years ago and carried forward." (Sept. Tr. 5-6.) Second, the fact that Old Town may have double counted the Small dam in its assessment. (Sept. Tr. 3-4, 7.) Third, the inadequacy ofthe sales-comparison approach used in Old Town's assessment, and the appraisal's failure to consider other valuation methods required by law. (Sept. Tr. 8-9.) The Board properly applied the burden and the evidence relied upon easily satisfies the "substantial evidence" standard on appeal.
7 With respect to PPL's burden to provide credible, affirmative evidence of value,
the Towns argue that the Board improperly presumed Mr. Lagassa's appraisal on behalf
ofPPL to be credible during the Board's September 2009 deliberations. In support of its
position, the Towns pinpoint a comprehensive list of Board member comments from the
deliberations that they believe improperly shift the burden to the Towns' expert, Mr.
Traub. 6
Although the Court is not always privy to an agency's deliberations, deliberative
content inevitably becomes part of the administrative record when a transcript thereof is
made available. The Law Court has addressed the question of how to treat the substance
of agency deliberations in assessing the validity of a final agency decision under Rule
SOC. Rather than consider Board member comments in isolation, the court must "analyze
a board's deliberations in context, taking into consideration both the comments of other
board members and the board's written findings." Martin v. City ofLewiston, 2008 ME
15, ,-r 14, 939 A.2d 110 (citing 0 'Toole v. City ofPortland, 2004 :ME 130, ,-r 24, 865 A.2d
555). 7
6 For instance: "There was not enough convincing in [Mr. Traub's report] to make me conclude that this opinion [Mr. Lagassa's] was wrong and this was right." (Sept. Tr. 33.) "I don't know if [Mr. Lagassa's opinion] is correct or not. What I am saying is I see nothing in here to convince me that it is not correct." (Sept. Tr. 34.) 7 In that case, the Board voted to recognize the existence of a public way, which rested on a finding of grantor intent. Martin, 2008 :ME 15, ,-r 6, 939 A.2d 110. The Petitioner on appeal argued that the Board applied the wrong legal standard in finding intent, pointing to certain individual board member comments during deliberations that seemingly questioned the grantor's intent. Id. ,-r 13. Adopting the standard iterated above, however, the Court opted to consider the Board's collective thought process as a whole, finding that "by the end of the hearing, a majority of the Board ultimately concluded that the [grantor's] intent was clear." !d. ,-r 14. The Court also found it significant that counsel for the Board clearly instructed them on the correct legal standard for intent. !d. In that
8 After carefully reviewing the hearing and deliberations transcripts, the Court
concludes that the Board properly applied PPL's legal burden to present credible
evidence of value. The Court recognizes that the deliberations are largely spent
discussing the Board's concern about the credibility of Mr. Traub's opinion and his
purported failure to discredit Mr. Lagassa's opinion. However, the Court finds that these
comments serve the function of assessing the witnesses' credibility, not of shifting the
burden.
The line between credibility and burden-shifting is very fine in this case, where
the burden is only satisfied when PPL presents enough credible evidence. The two
concepts are necessarily intertwined. Nevertheless, the Board as fact-finders in this case
retained its authority to assess the credibility of the witnesses before it regardless of
which party had the burden. See Gould v. A-1 Auto, Inc., 2008 ME 65, ~ 5 n.4, 945 A.2d
1225 (distinguishing between the fact-finder's duty to assess credibility and separately
apply the burden of proof). The Board's findings with respect to credibility are a finding
of fact. !d.~ 6.
Although the Towns did not have a burden in front of the Board, it was well
within the Board's province to discuss and question the credibility of Mr. Traub's opinion
when the Towns' brought him in to review Mr. Lagassa's assessment. Presumably, Mr.
Traub's purpose was to discredit Mr. Lagassa's opinion. For that to happen, the Board
must be satisfied that Mr. Traub's opinion was credible and, thus, it was perfectly
appropriate for the Board to discuss their misgivings with his testimony. Thus, a fair
case, thus, the Law Court left open the possibility that if the Board as a whole ultimately relied on an incorrect standard oflaw, it could constitute reversible error.
9 reading of the deliberations suggests that the Board was appropriately assessing witness
credibility when it determined that Mr. Traub had not raised enough concerns about Mr.
Lagassa's opinion to convince them that the taxpayer, PPL, had not met its burden. The
Court defers to the Board's finding that Mr. Traub's opinion was not credible because the
finding is supported by "substantial evidence" on the record. 5 M.R.S.A. §
11007(4)(C)(5).
Even if certain comments were to be characterized as improper burden-shifting,
the Court's task is to "analyze [the] deliberations in context," considering the record as a
whole, to determine if the wrong legal standard was applied. Martin, 2008 ME 15, ~ 14,
939 A.2d 110. On several occasions, Chairwoman Farnum and Assistant Attorney
General Robert correctly stated the legal standard and validly confined the deliberations
within that standard. (See Sept. Tr. 12, 22, 59, 60, 63, 64, 65-66.) It is also true that a
majority ultimately voted "in favor that the taxpayer has offered credible evidence of
value." (Sept. Tr. 82.) The written decision, furthermore, meticulously applied the facts
and law. 8
Moreover, the finding that the Board correctly applied PPL's burden to provide
credible evidence of value is grounded in the evidence itself. The Towns maintain that
Mr. Lagassa's appraisal was not based on sufficient evidence in the administrative record.
8 The Towns suggest that even if the written decision did correctly state and apply the
legal standard, it "does not accurately state the reasoning of the Board." (Reply Br. of Pet. 4.) The Towns cite to Peaker v. City of Biddeford, 2006 WL 5255444 (Me. Super. Oct. 18, 2006), where the Superior Court remanded a tax abatement case because it was unclear whether the written decision accurately captured the decision of the Board. In that case, the Board meeting was adjourned, there was no vote, and the board members reported their findings after the fact so that Chairman could produce a conceived consensus. Id. That case is unlike the one here where the members' findings were discussed and a vote was taken at the deliberations.
10 However, this Court is bound to uphold factual findings if there is "any competent
evidence in the record to support [them]." Concerned Citizens to Save Roxbury, 2011
:ME 39, ~ 24, 15 A.3d 1263.
The parties, experts, and the Board agreed that the income approach should be
given the most weight in the evaluation process. 9 They agreed that the future price of
natural gas, which dictates the price of electricity, is a chief factor in determining the 10 value of a hydroelectric dam under the income approach. (Sept. Tr. 49.)
The main point of disagreement was about how to predict the rate at which the
price for natural gas will change. On this point, Mr. Lagassa testified that the price of
natural gas will go down in future years, (June Tr. 137), while Mr. Traub testified that the
price will rise with inflation at about 2.5%, (June Tr. 240). Mr. Lagassa's theory was
based on the United States Energy Information Administration's "Annual Energy
Outlook." 11 (June Tr. 198.) The Board, in its written decision, found that Mr. Lagassa
"appropriately considered both the rate of change of natural gas prices and inflation and
9 Under Maine Law, assessors must consider three approaches in determining a property's market value: (1) the comparative or market data approach, (2) the income approach, and (3) the cost approach. S. PortlandAssocs. v. S. Portland, 550 A.2d 363, 366-367 (Me. 1988).
1° In fact, the Board addressed two additional factors it considered relevant under the income approach. In addition to predicting the rate of change of the price of natural gas, it considered: (1) how to establish the starting price point of electricity as of April1, 2007, and (2) how to calculate the cost of debt and equity in the discount rate. The Court focuses on the first issue as it garnered the most attention from the Board. 11 In Mr. Lagassa's own words: "The supply of natural gas is increasing and the demand is predicted to go up but not as quickly as the supply. One of the reasons is there are new discoveries of natural gas fields. Another reason is ... there is new technology for sideways drilling which makes it possible to get more gas from the existing and from the future fields and another reason is the development (inaudible) by natural gas. So those three things together increase the supply quite profoundly .... " (June Tr. 187.)
11 that his reliance on the AEO report and calculation of the future price of electricity was
reasonable and therefore credible." Mr. Lagassa also offered credible evidence regarding
(1) how to establish the starting price point of electricity as of April I, 2007, and (2) how
to calculate the cost of debt and equity in the discount rate.
The Court is satisfied that "a reasonable mind" could accept Mr. Lagassa' s
opinion of value as adequate to support the decision in question. Thus, this Court
upholds the Board's factual findings because they are based on competent evidence, and
therefore withstand 80C review.
The entry will be:
The Court AFFIRMS the Board's decision.
DATE SUPERIOR COURT JUSTICE
12 Date Filed 1 o /2 5/1 o Kennebec Docket No. -=A=P-=-1=0_--"'-5=-6_ _ _ _ _ _ _ _ __ County
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soc
J.Murphy
Inhabitants of the Town of Milford et al vs. PPL, Maine LLC Plaintiff's Attorney Defendant's Attorney William Dale Esq. '-1Y] ir:JuJ.a_ /{pbvtf:':>, f:;AG C ?.!tbpU>.J:t !3d) Tem Free Street · G P.O. Box 4510 Portland Maine 04112-4510 - David Silk, Esq. One Canal Plaza Suite 1000 P.O. Box 7320 Portland Maine 04112-7320 Date of Entry
10/25/10 Petition for Review, filed. s/Silk, Esq. 10/28/10 Entry of Appearance, filed. s/Silk, Esq. 11/8/10 Corrected Summary Sheet, filed. s/Dale, E~q;
12/9/10 NOTICE AND BRIEFING SCHEDULE ISSUED Copies to attys. of record 12/10/10 Defendant PPL Maine LLC's Motion to Dismiss Plaintiffs' Complaint with Integrated Memorandum of Law, filed. s/Silk, Esq. Proposed Order, filed. Request for hearing, filed. s/Silk, Esq. 12/20/10 Plaintiff's Motion for Enlargement of Time to File Rule SOC Brief with Incorporated Memorandum of Law, filed. s/Dale, Esq. Proposed Order, filed. Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Complaint, filed. s/Dale, Esq. 12/30/10 Defendant PPL Maine, LLC's Reply to Plaintiffs' Opposition to Defendant's Motion to Dismiss, filed. s/Silk, Esq. . .).I J.nf.JJt~s;:, , ,:~'... N·0. t'!C.-0. of ~ertmgtof_, ., •. ~.,m.w .. c·.,.P' ' .. '.;:: ;
1/7/11 Defendant PPL Maine LLC's Opposition to Plaintiffs' Motion for Enlargement of Time, filed. s/Silk, Esq.
1/13/11 Plaintiffs' Reply to Defendant's Oppositi0n to Plaintiffs' Motion for Enlargement of Time to File Rule 80C Brief, filed. s/Dale, Esq.
1/14/11 Certificate of Record, filed. (in vault) Date of Entry Docket No.
2/10/11 Oral arguments held with the Hon. Justice Robert Murray, presiding. Tape 1396 Index 65-1048 William Dale, Esq. for the Petitioner and David Silk, Esq. for the Respondent. Oral arguments made to the court. Court to take matter under advisement. 2/22/10 ORDER, Murray, J. Accordingly, defendant PPL's motion to dismiss is hereby DENIED. Petitioner's motion for an enlargment of time to file its brief is GRANTED. Copies to attys. of record 2/24/11 Recording tapes, filed. (from the Property Board)
3/2/11 Petitioners' Motion to Modify Rule 80C Record and for Enlargment of Time to File Rule 80C Brief with Incorporated Memorandum of Law in Support There of, filed. s/Dale; Esq. Affidavit of Sally J. Daggett, Esq., filed. s/Daggett, Esq. Affidvit of Mark A. Bower, Esq., filed. s/Bower, Esq. Proposed Order, filed. 3/16/11 Respondent PPL Maine, LLC's Motion to Reconsider with Integrated Memorandum of Law, filed. s/Silk, Esq. Request for Hearing, filed. s/Silk, Esq. Respondent PPL Maine, LLC's Opposition to Petitioners' Motion to Modify the Rule 80C record and Second Motion for Enlargment of Time to File Rule 80C Brief, filed. s/Silk, Esq. Affidavit of David P. Silk, Esq. (attached exhibits A and B)
3/23/11 Petitioners' Reply to Respondent's Opposition to Motion to Modify Rule 80C Record and for Enlargment of Time to File Rule 80C Brief, filed. s/Dale, Esq. 3/28/11 Petitioners' Memorandum of Law in Opposition to Respondent's Motion to Reconsider, filed. s/Dale, Esq. 5/5/11 ORDER ON PETITIONER'S MOTION, Murray, J. The clerk shall incorporate this order on the docket by reference pursuat.' ; .:· M.R.Civ.P.79(a) Copies to attys. of record. 5/11/11 State Board of Property Tax Review picked up t~~es per court order.
NoUceof settmg tm ==~'ll'L/Il ~,._:: -,.- .. ~
sent to attorneys of record. · ,j ! 6/13/11 State Board of Property Tax Review Hearing Transcripts, filed. s/Dale, E~~.
6/20/11 Letter regarding oral arguments, filed. s/Dale, Esq. ORDER, Murray, J. Remove from July motion list. Copies to attys. of record. 7/5/11 Plaintiffs' Rule 80C Initial Brief, filed. s/Dale, Esq.
8/8/11 Respondetn PPL Maine, LLC's Rule 80C Brief, filed. s/Silk, Esq. Page 3 Date of APl0-56 Entry Inhab. of the Town of Milford vs. PPLockHJi
8/19/11 Plaintiffs' Rule 80C Brief, filed. s/Dale, Esq.
11/1/11 Oral arguments scheduled 11/17/11 at 1:30 p.m. Motion list mailed 10/28/11.
11/17/11 Oral arguments held. J. Murphy, Attorney Dale, Attorney Silk. Tape 1481, Index 1692-3305 Under advisement 2/10/12 ORDER ON RULE 80C APPEAL, Murphy, J. (2/8/12) The Court AFFIRMS the Board's Decision. Copies to attys. of record. Notice of removal of record mailed to attys. of record