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

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-216

                                     NOVEMBER TERM, 2012

 Stephan L. Petrie                                     }    APPEALED FROM:
                                                       }
                                                       }    Property Valuation and Review
    v.                                                 }    Division
                                                       }
                                                       }
 Town of Colchester                                    }    DOCKET NO. PVR 2011-135

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

        Taxpayer appeals his property tax assessment. On appeal, he argues that the Town of
Colchester erred in setting the fair market value of his property at $346,400 because the fair
market value determination did not deduct for the seasonality of his home or the proximity to the
interstate and relied on values of properties that were not comparable. We affirm.

        Taxpayer owns 0.35 acres of land improved with a five-year-old, one-and-a-half story,
single-family dwelling. The property is located on a private road, and there is lake access via a
deeded right-of-way. The Town conducted a town-wide reassessment in 2011 and the listers
valued the property at $346,400. Taxpayer grieved to the Board of Civil Authority, and the
listed value was decreased to $331,600. Taxpayer appealed to the state appraiser.

       At the hearing, taxpayer estimated that the fair market value of his property at between
$225,000 and $250,000.1 The Town submitted three comparable sale properties, and the grid
analysis of those properties produced a fair market value of $318,500. The state appraiser
conducted a site visit.

        The state appraiser made one adjustment to the Town’s assessment based on its finding
that the Town had incorrectly measured the square footage. The state appraiser found that the
gross living area was 3477 square feet rather than 3553 square feet as submitted by the Town.
Other than another adjustment not at issue, the appraiser concluded that the Town’s valuation
was supported. The state appraiser found the Town’s comparable sales analysis persuasive.
Based on this, in combination with the valuation from the cost approach, the state appraiser
concluded that the fair market value of taxpayer’s property is $320,000, and, applying the
Town’s equalization ration of 97.59% set the listed value at $312,300. Taxpayer appeals.

       When a taxpayer grieves an assessment to the state appraiser, there is a presumption that
the Town’s assessment is valid. City of Barre v. Town of Orange, 152 Vt. 442, 444 (1989). If

         1
          Taxpayer did not order a transcript of the proceedings so we accept the state appraiser’s
statement regarding the valuation taxpayer presented at the hearing. Taxpayer’s appellate brief
asserts that the property should be assessed at $215,000, but we do not consider this amount
because our review is limited to the evidence submitted below.
the taxpayer presents evidence that his property was appraised above fair market value, then the
presumption disappears and “it is up to the town to introduce evidence that justifies its
appraisal.” Adams v. Town of West Haven, 147 Vt. 618, 619-20 (1987). Even when the
presumption of validity disappears, however, the ultimate burden of persuading the court that the
Town’s appraisal is incorrect on all contested issues “remains with the taxpayer.” Id. at 620 n.*.

        Here, the state appraiser agreed that taxpayer had submitted sufficient evidence to
overcome the Town’s presumption of validity, but was not persuaded by taxpayer’s evidence.
On appeal, we accord deference to decisions of the state appraiser and “will set aside the state
appraiser’s findings of fact only when clearly erroneous.” Barnett v. Town of Wolcott, 2009 VT
32, ¶ 5, 185 Vt. 627 (mem.). Where the state appraiser’s valuation is supported by some
evidence from the record, “the appellant bears the burden of demonstrating that the exercise of
discretion was clearly erroneous.” Garilli v. Town of Waitsfield, 2008 VT 91, ¶ 9, 184 Vt. 594
(mem.) (quotation omitted).

        Taxpayer argues that the decision is erroneous because the state appraiser failed to
account for the fact that his house is a seasonal home, is land-locked without lake access, and is
located close to the interstate. He also contends that the comparable properties used by the Town
were inappropriate due to differences in location and size. Upon review of the record, we
conclude that taxpayer has failed to meet his burden of demonstrating that the state appraiser
erred in valuing his property. See Lake Morey Inn Golf Resort, Ltd. P’ship v. Town of Fairlee,
167 Vt. 245, 248 (1997) (noting that if record contains any evidence in support of real property
valuation, taxpayer bears burden of demonstrating that appraiser’s exercise of discretion was
clearly erroneous). On the issue of water access, the state appraiser included water access as a
characteristic of the property based on the fact that taxpayer’s deed included a right-of-way for
water access. While taxpayer asserts that this access is not in actuality available and not on the
tax map, it was not error for the state appraiser to rely on the deed and include this access as an
attribute of the property.

        In addition, the state appraiser did not err in relying on the Town’s direct sales
comparison. The Town’s comparable sales analysis included three other homes in the Town and
factored in differences between taxpayer’s and the comparable properties including the size of
lot, the improvements thereon, the square footage, and the site condition. The state appraiser
accounted for seasonality of taxpayer’s home in this analysis when he found that an impediment
to occupying taxpayer’s residence full time is the lack of a sprinkler system and based on the
Town’s evidence found that the cost of this was $10,800.2 This amount was deducted from the
value of the comparable sales. It was within the state appraiser’s discretion, as the trier of fact,
to determine the weight, credibility, and persuasive effect of the evidence. Here, the appraiser
found the Town’s cost-approach and sales analyses, and the factors underlying them, to be


       2
          On appeal, taxpayer asserts that the cost of the sprinkler system is higher than $10,800.
Because taxpayer has failed to order a transcript of the hearing, he has waived any challenge to
the sufficiency of appraiser’s findings. In re S.B.L., 150 Vt. 294, 297-98 (1988); see V.R.A.P.
10(b)(1) (stating that “[b]y failing to order a transcript, the appellant waives the right to raise any
issue for which a transcript is necessary”). In addition, to the extent this amount is supported by
evidence not presented to the state appraiser, it is not part of the record on appeal. Our review is
based on the evidence submitted to the state appraiser and we will not consider new evidence on
appeal.
                                                  2
reliable and supported by the evidence, and taxpayer has not demonstrated that its findings in this
regard were “clearly erroneous.” Lake Morey Inn, 167 Vt. at 248.

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Brian L. Burgess, Associate Justice




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