Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-231

                                       JANUARY TERM, 2015

 J. Herbert Dahm, Jr.                                  }    APPEALED FROM:
 and Arlene L. Dahm                                    }
                                                       }    Superior Court, Orleans Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Town of Charleston                                    }    DOCKET NO. 260-10-10 Oscv

                                                            Trial Judge: A. Gregory Rainville

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

       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 (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 (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 during an appeal. The court explained that
32 V.S.A. § 5292(a) presented a standing requirement to contest the validity of assessed taxes,
and it was not like the subject-matter-jurisdiction cases on which the Dahms relied.

                                                  2
        As to property valuation, the Dahms first asserted that, due to the economic downturn,
property values dropped and they were just beginning to recover. The court found that the
Dahms presented credible evidence showing that property values in the area had declined in
value. It disagreed with the Dahms, however, that the appraisal they submitted was more
reliable, current, and proper to use in evaluating their property for tax purposes. The court found
that the town had presented evidence showing that all properties in the town were assessed based
on a 2006 assessment. Thus, the court reasoned, if the Dahms’ property was overvalued in light
of the recession, it was overvalued in proportion with all other property in the town. If the court
were to value their property consistent with its post-recession value, this would result in a
disproportionately and unfairly light tax burden for the Dahms.

        The Dahms also argued that the rule change implemented by the property owners’
association, which prohibited the commercial development of any land within the subdivision
including site rental to RVs, had a significant impact on the value of their property that should be
reflected in the assessment. The court rejected this argument. It explained that the State
Appraiser had found that the highest and best use of the property was for “single family
residential or vacation use,” not commercial use. A property’s fair market value for tax
assessment purposes is based on its highest and best use. While the State Appraiser found that
the Dahms’ lots were “ideal vacation spots” for RVs, she did not contemplate the possibility that
the lots could be rented out commercially. Anyone who wished to purchase the lots in the future
could use an RV and the property’s value remained undiminished in that regard. The court thus
concluded that the Dahms failed to meet their burden of proof to rebut the fair market value of
their property as established by the Town. The Dahms appealed from this decision.

        The Dahms first argue that the court erred in ruling that they lacked standing to challenge
the validity of the grand list. They do not squarely address the relevant language of 32 V.S.A.
§ 5292(a). Instead, they argue that they are not challenging any “action of the listers” because no
action has occurred. Assuming that they have standing to pursue their claim, the Dahms go on to
address the merits of their claim.

        We agree with the trial court that the Dahms failed to comply with the statutory
requirements that would allow them to challenge the grand list. Section 5292(a) plainly requires
them to raise any such objection before the town “within a period of two months from November
15 of each year in which the tax is assessed.” The Dahms’ presented no evidence that they did
so. As the trial court noted several times, this does not present a question of subject matter
jurisdiction, which may in fact be raised at any time. See Boisvert v. Boisvert, 143 Vt. 445, 447
(1983) (“It is well settled that a court’s lack of subject matter jurisdiction may be raised at any
time.”); Lamell Lumber Corp. v. Newstress Intern., Inc., 2007 VT 83, ¶ 6, 182 Vt. 282
(“ ‘Subject matter jurisdiction’ refers to the power of a court to hear and determine a general
class or category of cases.”). Rather, at issue is a statutory time limit on such challenges. See
Hojaboom, 141 Vt. at 49 (explaining that “[u]nder 32 V.S.A. § 5292(a) a taxpayer must file
objections to the validity of the tax assessed against him in order to have standing to contest the
same,” and this principle applies equally to challenges to the validity of the grand list). Because
the Dahms are barred by statute from pursuing this claim, we do not address this claim on the
merits.

      The Dahms next argue that the court should have credited their arguments that the
economic recession devalued their property as did the regulations concerning RV use. As to the
                                                 3
first issue, the Dahms assert that the court’s decision “ignores the reality of property valuation,
and welds the property . . . to an aging appraisal in the name of fairness and equity.” With
respect to the second argument, the Dahms assert that if they cannot build on the lot and cannot
rent it for RV parking, then there is only a limited value to the property.

        The trial court considered these arguments and rejected them. It concluded that if the
Dahms’ property was overvalued in light of the recession, it was overvalued in proportion with
all other property in the town. As the court explained, if it were to value their property consistent
with its post-recession value, this would result in a disproportionately and unfairly light tax
burden for the Dahms. This reasoning is consistent with the law. See generally Alexander v.
Town of Barton, 152 Vt. 148, 155 (1989) (recognizing that listing property at updated fair
market value each year is “unachievable,” and thus, duty of reviewing body is to “equalize, that
is to set listed values at an amount that will correspond to the listed value of comparable
properties within the town” (citations omitted)). As to the regulations concerning RV use, the
court explained that the State Appraiser had found that the highest and best use of the property
was for “single family residential or vacation use,” not commercial use and that a property’s fair
market value for tax assessment purposes is based on its highest and best use. While the State
Appraiser found that the Dahms’ lots were “ideal vacation spots” for RVs, she did not
contemplate the possibility that the lots could be rented out commercially. Based on this, the
trial court reasonably concluded that anyone who wished to purchase the lots in the future could
use an RV and the property’s value remained undiminished in that regard.

        The Dahms essentially challenge the court’s assessment of the weight of the evidence, a
matter reserved exclusively for the trial court. See, e.g., Scott Constr., Inc. v. City of Newport
Bd. of Civil Auth., 165 Vt. 232, 239 (1996) (trier of fact has discretion to determine the weight,
credibility and persuasive effect of the evidence). We will not reweigh the evidence on appeal.
We find no error in the court’s decision.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Marilyn S. Skoglund, Associate Justice

                                                 _______________________________________
                                                 Beth Robinson, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




                                                 4
