Guntlow et. al. v. Town of Pownal, No. 379-9-13 Bncv (Wesley, J. Apr. 2, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                              VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                                        CIVIL DIVISION
Bennington Unit                                                                                       Docket No. 379-9-13 Bncv


Pauline Guntlow and Richard Winterkorn,
Appellants.

v.

Board of Abatement, Town of Pownal
Appellee.


                                                 Opinion & Order
                                     on Rule 75 Appeal from Denial of Abatement

       For the second time, Pauline Guntlow and Richard Winterkorn appeal a decision by the
Town of Pownal Board of Abatement.1 On remand, the Board held another hearing on August 8,
2013, which was adjourned until August 12, 2013. At the later hearing, the Board gave its
decision, together with explanations recorded in the minutes. The Board granted a partial
abatement of $1,342.81 in response to Appellants’ claim related to sewer bond fees, but denied
any other relief. This appeal followed.

        By entry issued January 16, 2014, the Court noted an appeal pursuant to V.R.C.P. 75 is
typically limited to the record made at the administrative proceeding and does not involve a de
novo evidentiary hearing. See Garbitelli v. Town of Brookfield, 2011 VT 122, ¶ 6, 191 Vt. 76.
Thus, the Court required each party to submit a further memorandum, together with references to
the record made before the Board of Abatement. Each party was also required to specify any
claim that the record below was incomplete.

        The parties complied with the January 16 entry and neither has demonstrated further
evidence is necessary to the Court’s proper Rule 75 review. The record before the Court
includes a transcript of the abatement hearing and the minutes kept of the hearing including a
written explanation of the Board’s decision. While Appellants maintain review should be de
novo, they acknowledge the current record comprises the facts on which they rely for their
claims of error. As Garbitelli holds, the Court’s review does not involve substituting its
assessment of those facts for the determination made by the Board of Abatement, unless the
development of the facts below was inadequate. Id. at ¶ 10. Thus, the Court addresses
Appellants’ Rule 75 appeal by confining its review to the adequacy of the record made before the
Board of Abatement.


1
  In Doc.No. 158-5-12 Bncv, the Court found the Pownal Board of Abatement had not provided a sufficient
explanation for its denial of Appellants’ request for abatement. By summary judgment ruling issued June 12, 2013,
the Court remanded the case for either a more detailed decision or a new hearing.
         Referring to the record made at the hearing on August 8, 2013, Appellants argue the
Board should have abated their taxes because the tax collector refused to accept a partial
payment, the listers erred by changing their property classifications from contiguous to
individual, and the listers erred by improperly calculating sewer bond fees, leach field
assessments, and eliminating the house site allocation allowance. Appellants also argue the
listers erred in equalizing the value of their properties. With respect to the grounds presented for
abatement, Appellants claim the Board did not provide them with a sufficient explanation of its
reasoning for denial. Further, Appellants claim the abatement hearing was procedurally
defective, due to the request that the listers involved with their property recuse themselves from
the meeting. Although the listers agreed to abstain from voting, the listers did not recuse
themselves from the proceedings, apparently to satisfy the quorum requirement. Appellants
maintain recusal was required.

        When a board of abatement denies a request, the board must “state in detail in writing the
reasons for its decision.” 24 V.S.A. § 1535(c). Nevertheless, the nature of abatement
proceedings, including the broad range of discretion granted to the Board, limit an aggrieved
taxpayer’s ability to challenge the sufficiency of an explanation of denial. Appellants’ challenge
here is similar to the one made in Hojaboom v. Town of Swanton. See 141 Vt. 43 (1982). Yet,
that holding was superseded by Harris v. Town of Waltham, 158 Vt. 477, 481 (1992)(“There is
no question that the Legislature intended to overrule Hojaboom … at least in part”). Following
Harris, far less specificity is required with respect to a municipal board decision regarding
property values. “The statute requires that the BCA state its reasons; not the reasons that would
have been used by a professional body, with the time for careful decision-making, and based on a
focused and detailed appeal.” Harris, 158 Vt. at 483, n.3. The Court concludes the specificity
required by 24 V.S.A. § 1535(c) is even less than required to explain denials of appeals from
Grand List assessments under 32 V.S.A. § 4404, the procedure under review in Harris.

        Here, the minutes of the meeting span five pages. After Appellants’ presentation of
multiple and extensive grounds for relief, including many exhibits, the minutes reflect that the
Board listed the separate grounds, identifying as to each one that it had considered and either
accepted or rejected it as a basis for relief. The Court concludes that the Board gave an adequate
explanation of its decision. See id.

        In reviewing the case law surrounding reviews of abatement decisions, the Court
concludes that its scope of review is very limited. According to Murray v. City of Burlington,
2012 VT 11, ¶ 14, 191 Vt. 597,“[t]he Board’s decision is ‘entirely permissive,’ and abatement is
not required even if a taxpayer falls within one of the categories allowing for abatement …. The
superior court's review of the board's decision is ‘necessarily narrow.’” Abatement is available
only when a plaintiff can show “a manifest error or a mistake of the listers,” and a failure to grant
it upon such a showing remains reviewable only for abuse of discretion. Garbitelli, 2011 VT
122, ¶ 6, (quoting Ketchum v. Town of Dorset, 2011 VT 49, ¶ 14, 190 Vt. 507 (“Review of
evidentiary questions is limited to ‘whether there is any competent evidence to justify the
adjudication’”)). While a taxpayer may argue in support of abatement that an assessment was so
unsupported that it constitutes “manifest error or a mistake of the listers,” the Board’s decision
remains highly discretionary. Id. ¶ 17.



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        In light of the record in this case, and the wide breadth of discretion associated with
abatement proceedings, the Court concludes Appellants have shown no evidence of “manifest
error” sufficient to support abuse of discretion as a matter of law. Rather, Appellants are
attempting to seek through abatement proceedings a remedy properly confined to the property
tax appeal procedures in 32 V.S.A.§ § 4111, et seq., because they have shown no “manifest
error” by the listers. Garbitelli, 2011 VT 122, ¶¶ 6, 14 (abatement should not be seen as a
substitute for the statutory procedures for property tax appeals, and a taxpayer faces a heavy
burden in demonstrating abuse of discretion).

        In regard to Appellants’ allegation that the tax collector erred by refusing to accept their
payment, the Board denied relief. The Board stated “the delinquent tax collector could not take a
portion of payment towards one parcel on a tax bill.” Beyond the belief that they should be
entitled to tender partial payment, and that the tax collector should be required to accept it,
Appellants offer no legal support for the proposition that such a failure by the tax collector was
“manifest error” requiring abatement.

         For Appellants’ claim that the listers erred in changing their property classification from
contiguous to individual, the Board denied relief because “it was not proven by the appellant that
the listers had erred.” Considering the claim of erroneous sewer fees, the Board decided to
refund $1,342.81 in taxes. As to the leach field, the Board noted the listers had already made
adjustments after a 2011 grievance. The Board declined to consider the house site allocation as
grounds for abatement because that determination is made by the State of Vermont. Finally, on
Appellants’ claim the listers erred by failing to equalize her property values, the Board denied
relief “because the same costs table/schedule were used to value the appellant’s property as were
to the rest of the parcels in town.” Each explanation was adequate and supported by the record,
especially considering Appellants failed to point to facts and law that demonstrated “manifest
error” by the listers. In absence of such a showing, relief through abatement is unavailing, since
all these challenges to the assessed value could have been pursued through procedures for
property tax appeals. Id.

         Under 24 V.S.A. § 1553, the listers and the town treasurer make up the board of
abatement. The board must have a quorum to act. 24 V.S.A. § 1553. A public body may also go
into an executive session, which excludes the public, through a two-thirds majority of the
members present at a meeting. 1 V.S.A. § 313. The public body must also state the nature of the
material it intends to discuss in the executive session. Id. Here, the Board complied with the
procedural rules relating to quorum requirements and executive sessions. The listers who
reviewed Appellants’ properties were members of the board and were present at the meeting. See
24 V.S.A. § 1553. While Appellants requested the listers responsible for the assessment of their
property recuse themselves from the appeal, they present no law that entitled them to such a
recusal. Nonetheless, certain listers agreed to abstain from voting though still remaining present
during the meeting to satisfy quorum requirements. Again, except for insisting on their view as
to what should compel recusal, Appellants made no showing that the Board’s actions were taken
in violation of 24 V.S.A. § 1553 or 1 V.S.A. § 313, or any statutory or procedural requirement.

       In sum, the record demonstrates an evidentiary basis for each decision made by the Board
of Abatement in consideration of the grounds for relief put forward by Appellants, as well as an

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adequate explanation of the reasons for those decisions. There was no abuse of discretion.
Appellants’ Rule 75 appeal must be denied.
                                             Order

      The Court AFFIRMS the decision by the Pownal Board of Abatement. The Court enters
judgment in favor of Appellee.


       Dated and signed electronically at Bennington, Vermont on April 2, 2014.




                                                           John P. Wesley
                                                           Superior Court Judge




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