2014 VT 80


Hoiska
v. Town of East Montpelier (2013-274)
 
2014 VT 80
 
[Filed 18-Jul-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 80

 

No. 2013-274

 

Elaine Hoiska



Supreme Court


 


 


 


On Appeal from


     v.


Property
  Valuation and Review Division


 


 


Town of East Montpelier


March Term, 2014


 


 


 


 


Barbara
  Rodgers, State Appraiser


 

Elaine Hoiska,
Pro Se, Greenville, New Hampshire, Appellant.
 
Bruce Bjornlund, Waterbury, for
Appellee.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.            
ROBINSON, J.   Taxpayer appeals from the Vermont State
Appraiser’s valuation of her property in the Town of East Montpelier.  She
argues that the appraisal incorrectly treats her property as comprising two
contiguous lots under common ownership, and accordingly assigns a higher value
to the property than if it were a single developable lot.  In particular,
taxpayer takes issue with the state appraiser’s legal conclusion that she
legally subdivided the land in 1978 by procuring a survey, not filed in the
land records, that includes a line purportedly dividing the lot into two
parcels.  We agree that the state appraiser’s findings do not support the
legal conclusion that taxpayer effectively subdivided her property in 1978, and
reverse.
¶ 2.            
Appellant has not ordered a transcript, so we rely on the factfinder’s
account of the facts.  V.R.A.P. 10(b)(1). 
Taxpayer owns a 16.2-acre parcel of land in East Montpelier that she acquired
in 1977.  The property has a home and barn.  In 1986, taxpayer
recorded a survey of her property with a 1977 certification date and a 1978
revision date.  The map included a line subdividing the property into two
lots.  From 1974 to 1982, the Town’s zoning and subdivision regulations
both provided that subdivision approval was required only for subdivisions with
three or more lots.  In 1982, the Town adopted new zoning regulations that
required subdivision approval for two or more lots, but the subdivision
regulations remained the same.  Taxpayer has never applied for or obtained
subdivision approval.
¶ 3.            
In December 2010, the Town sent a letter to landowners, including
taxpayer, explaining that it discovered that owners of contiguous lots were not
being taxed uniformly.  The Town informed owners that starting the next
tax year, the Town would assess the principal housesite
on all adjoining parcels in common ownership at its full value, and the housesites on the contiguous parcels at one-half of the
land schedule’s full housesite value.  The
remaining property would be assessed as bulk land.  The letter informed
property owners that they could avoid assessment of their property as separate
parcels by legally combining the parcels under one deed by April 1.  
¶ 4.            
Taxpayer grieved the listers’ initial 2011
assessment, and the listers adjusted the value,
assigning a total value to the property of $291,600.  Taxpayer appealed to
the Board of Civil Authority, which affirmed the Town’s valuation.
 Taxpayer appealed that decision to the state appraiser.  Taxpayer
initially claimed that the valuation was incorrect because of the slope and
condition of the property.  She amended her appeal to include an argument
that the property was improperly assessed as two parcels because it was not legally
subdivided.  This eventually became the only basis for her appeal to the
state appraiser.
¶ 5.            
At the hearing before the state appraiser, the Town presented testimony
from a lister and the zoning administrator.  The
state appraiser admitted several exhibits, including the December 10, 2010
letter from the Town listers.  Taxpayer
testified on her own behalf.  Taxpayer testified that a surveyor added the
subdivision line to the survey map shortly before the survey was recorded in
the land records in 1986. She stated that her intent at that time was not to
subdivide her land but merely to preserve the possibility of subdivision in the
future without employing the services of another surveyor.  
¶ 6.            
The state appraiser rejected this testimony and found that the survey
was completed and certified in its present form—including the line across the
parcel—in 1978.  Based on this factual finding, the state appraiser
concluded that the survey evidenced a legally valid subdivision of the property
as of 1978.  The state appraiser rejected taxpayer’s argument that the
effect of the subdivision line on the map should be determined with reference
to the regulations in force in 1986 when the survey was recorded; instead, the
state appraiser reasoned that the law in operation in 1978, when the survey was
completed in its present form, governed the effect of the survey.  Because
the law in 1978 did not require any particular action to subdivide one lot into
two lots—no applications, approvals, or fees were required—the state appraiser
concluded that the completion of a survey alone was sufficient to evidence a
subdivision.  Because the subdivision was effective as of 1978, the state
appraiser reasoned that it was grandfathered as to any subsequent zoning or
subdivision regulations, and the Town properly treated taxpayer as owning two
contiguous lots.  Taxpayer appealed to this Court.
¶ 7.            
Vermont law requires property to be assessed at fair market value. 
32 V.S.A. § 3481(1); Allen v. Town of West Windsor,
2004 VT 51, ¶ 2, 177 Vt. 1, 852 A.2d 627.  Fair market value is
determined by using the highest and best use of the property, which is “the
value of the property for its most profitable, likely, and legal use.”  Scott Constr., Inc. v. Newport Bd. of Civil Auth., 165 Vt.
232, 235, 683 A.2d 382, 384 (1996) (quotation omitted).  Even where
land is not subdivided, it may be appraised based on its development value as
long as the valuation method is supported by credible evidence.  Id.
at 238, 683 A.2d at 385 (“Testimony as to the value of property if subdivided
is generally admissible on the issue of fair market value as evidence of the
highest and best use of that land.”); see 16 E. McQuillan,
The Law of Municipal Corporations § 44:147 (3d ed. 2014) (explaining that
purpose of assessment is to ascertain “true value” of property by considering
all factors that affect value, including “the use to which the property may
profitably be put”).  
¶ 8.            
In determining the highest and best use of property, a town may assess a
parcel as including multiple house sites where the owner has subdivided the
property into separate lots.  See Lathrop v. Town of Monkton, 2014
VT 9, ¶ 10, ___ Vt. ___, 91 A.3d 378 (explaining that development
potential of lot is an important factor in setting value).  In Lathrop
we held that a town’s valuation of a parcel as if it included two house sites
was reasonable where the parcel had been subdivided by permit because the
permit provided evidence that subdivision was financially feasible and would
result in the highest and best use of the land.  Id.
¶ 14.  Here, the Town is casting a wider net than Monkton did in
the Lathrop case, as Monkton limited its assessment for multiple house
sites to properties for which the owner had obtained a subdivision permit.
 Taxpayer has not challenged the Town’s valuation methodology; rather, she
argues that her land was not legally subdivided and therefore the Town erred in
assessing it as if it was.
¶ 9.            
On appeal, we “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, 970 A.2d 1281 (mem.). 
In this case, where the appellant taxpayer has not ordered a transcript, we
cannot review claims that the state appraiser’s findings are not supported by
the evidence.  V.R.A.P. 10(b)(1).* 
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,
958 A.2d 1188 (mem.) (quotation omitted). 
We review statutory interpretations and questions of law concerning matters not
within the state appraiser’s purview de novo.  See In re Albert,
2008 VT 30, ¶ 6, 183 Vt. 637, 954 A.2d 1281 (mem.)
(explaining that while this Court gives deference to agency interpretations of
statutes under their administration, this Court gives no deference on general
principles of law); Barrett v. Town of Warren, 2005 VT 107, ¶ 5, 179 Vt.
134, 892 A.2d 152 (applying deferential standard of review to interpretation of
statute within agency’s area of expertise).
¶ 10.         Taxpayer
argues that simply drawing a line on a survey map was insufficient to subdivide
the property.  The state appraiser found that the property was subdivided
in 1978 because the survey completed in 1978 included a line dividing two lots,
and the Town’s regulations in 1978 did not require any special action to
effectively subdivide.  We accept the state appraiser’s finding that
neither the Town’s zoning regulations nor the subdivision regulations required
any approval for the subdivision of property into less than three lots. 
The legal question, then, is whether under those circumstances the completion
of a survey that includes a subdivision line, without more, automatically
effects a subdivision.
¶ 11.         We
conclude that it does not.  A privately contracted survey could reflect a
hypothetical internal division line.  It could be a tool for future
subdivision.  The property owner could reject the division line reflected
on the survey in favor of a different one, or could opt to subdivide into
smaller or larger pieces.  Even in the absence of specific town
requirements for subdivisions of property, a survey alone, unaccompanied by any
evidence manifesting an intent by the owner to
actually subdivide along the lines reflected in the survey, does not effectuate
a subdivision.  
¶ 12.         The
intention to subdivide can be manifested in many ways, including by recording
the survey reflecting the subdivision, building on one or both subdivided lots,
conveying one or both subdivided lots, offering to sell one or more subdivided
lots, or otherwise expressing an intention to prospectively treat the lots as
separate.  However, the mere preparation of a survey reflecting two lots,
by itself, is not enough.  See Atkins v. Deschutes Cnty., 793 P.2d 345, 346 (Or. Ct. App.
1990) (holding that property was not “legal lot of record” within meaning of
grandfather clause for minimum lot size simply because it was included in
unrecorded survey even though there were no statutory or county requirements
governing subdivisions when parcel was surveyed); see also State ex rel.
Brennan v. R.D. Realty Corp., 349 A.2d 201, 203-05 (Me. 1975) (stating that
where no municipal officer’s approval for subdivision was required, subdivision
pursuant to plan that had been underway for several years was “in existence”
before the effective date of the new statute where the lots were actually
surveyed and marked, either by steel pins or regular markers, and were
numbered).  
¶ 13.         The
state appraiser’s finding that the line was drawn on an unrecorded survey in
1978 does not by itself support the appraiser’s conclusion that taxpayer
effectively subdivided her property in 1978.  Nor does the fact that she
subsequently recorded the survey—an overt act that
does signal an intent to subdivide and puts others on notice—change our
analysis.  Taxpayer filed the survey in 1986 at a time when, as found by
the state appraiser, the Town’s zoning regulations, but not its subdivision
regulations, required subdivision approval for subdivisions having two or more
lots.  There is no dispute that taxpayer neither requested nor received
approval to subdivide.  The 1986 filing did not effectively create a
subdivision where none existed before.  
¶ 14.         Because
we conclude that the state appraiser erred as a matter of law in concluding
that taxpayer had effectively subdivided her property in 1978 solely on the
basis of the existence of an unrecorded survey reflecting two lots as of that
time, we need not reach taxpayer’s alternate argument that because she held her
property through only one deed, she should have been exempt from the
application of the Town’s new appraisal methodology which the Town had
indicated would not be applied to taxpayers who legally combined their
contiguous parcels under one deed.
Reversed and remanded for a
determination of taxpayer’s 2011 assessment viewing taxpayer’s property as a
single property rather than two contiguous lots.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





* For this reason, we
do not address taxpayer’s argument that the state appraiser erred in finding as
a matter of fact that the line upon which the claimed subdivision is based was
drawn in 1978 rather than in 1986, as she testified.  Taxpayer did not
order a copy of the transcript from the proceedings before the state appraiser,
and we therefore cannot review the testimony—including taxpayer’s—concerning
the inclusion of the line on the survey.  Without the transcript, taxpayer
is unable to challenge the state appraiser’s finding that the survey in its
present form was completed in 1978, and we cannot conclude that the state
appraiser erred with respect to this finding.  See V.R.A.P. 10(b)(1); see also In re S.B.L., 150 Vt. 294, 297-98, 553
A.2d 1078, 1081 (1988) (failure to order transcript waives any challenge to
sufficiency of court’s findings).  For the same reason, we also decline to
consider taxpayer’s argument that the zoning administrator’s testimony was
insufficient to establish that in 1978 no particular action was required to subdivide
property into two lots.  Taxpayer claims that the addition of the
handwritten notation “1974” to an exhibit, after it was admitted, but before it
was photocopied, was also error.  In the decision, the state appraiser
acknowledged taxpayer’s objections concerning the regulation and explained that
the notation was consistent with the zoning administrator’s testimony that the
regulations encompassed in the exhibit became effective in 1974 and remained in
effect in 2009.  In the absence of a transcript, we accept the court’s
findings on these points.



