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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-164

                                     SEPTEMBER TERM, 2013

 Margaret Murray                                       }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 City of Burlington                                    }    DOCKET NO. S1239-10 CnC

                                                            Trial Judge: Geoffrey W. Crawford

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

        Taxpayer Margaret Murray appeals from a superior court order affirming a decision by
the Board of Abatement of the City of Burlington on her request for the abatement of taxes,
interest, and penalties incurred from 1994 to 2010. Taxpayer contends that the conduct at the
abatement hearing and deliberations violated her due process rights and denied her a fair and
impartial hearing because the City’s attorney played an inappropriate role in the process and had
ex parte communications with Board members during the Board’s deliberations, and that the
Board was biased against her. We affirm.

       This is the second appeal to reach the Court in this matter. The basic facts are set forth in
in Murray v. City of Burlington, 2012 VT 11, 191 Vt. 597 (mem.), and may be briefly
summarized. Additional material facts are set forth in the discussion which follows. Taxpayer
owns property on Shelburne Street in the City, where a cleaning business has operated in the
past. In 1994, apparent petroleum-based contamination was discovered on the property.
Taxpayer unsuccessfully appealed the assessment of her property in 1995 and 1996. In 1995, in
addition to appealing her tax assessment, taxpayer also filed a tax abatement request. In
response, the Board of Abatement abated her taxes by reducing the appraisal on the property by
$10,000, to $155,300, but it declined to find the property totally worthless. Id. ¶ 3.

        Although the City thereafter continued to assess taxes, taxpayer did not pay any further
taxes, and did not appeal her tax assessments. A substantial arrearage, over $112,000 including
interest and penalties, accrued. In 2010, taxpayer filed a request for abatement of the accrued
taxes, interest, and penalties, again asserting that the property was worthless. Following a
hearing, the Board voted to abate the taxes that had accrued prior to 1994, amounting to $16,112,
on the ground that arrearages more than fifteen years old were uncollectible due to the
limitations period, but it denied the abatement request as to the balance of the arrearage. Id. ¶ 4.

          Taxpayer appealed to the superior court, which dismissed on jurisdictional grounds,
ruling that by failing to challenge the tax assessment—taxpayer had failed to exhaust her
available statutory remedies. Id. ¶ 7. We reversed that decision, holding that her request for
abatement, and her appeal of the Board’s abatement decision, were not foreclosed by taxpayer’s
failure to challenge her tax assessments. Id. ¶ 9. On remand to the trial court, we noted that the
superior court’s review of the Board’s abatement decisions is normally on the administrative
record—although the court retains discretion to admit additional evidence depending on the
issues raised and the state of the record. Id. ¶ 11. We also emphasized that the superior court’s
review of the board’s decision was “necessarily narrow,” and that abatement is not required even
if a taxpayer falls within one of the categories allowing for abatement. Id. ¶ 14.

        Following our remand, the trial court issued a preliminary order on taxpayer’s motion to
introduce additional evidence to support her claim that members of the Board were improperly
lobbied at the abatement hearing. The court ruled that it would “permit evidence of alleged ex
parte communications and other irregularities claimed by” taxpayer. The court held a merits
hearing in December 2012, in which it heard testimony from the assistant city attorney, the City
assessor, and taxpayer. The court also viewed a videotape of the abatement hearing in its
entirety. Shortly thereafter, the court issued a written ruling, affirming the Board’s decision.

        To address taxpayer’s claim of improper communications and influence, the court
described the abatement proceeding in some detail. The court noted that taxpayer and her
attorneys were present and afforded a full opportunity to participate and present any information
they deemed to be relevant. The abatement hearing commenced with a Board member
presenting a recommendation of a subcommittee of the Board that the tax abatement be limited
to $16,112 in taxes that were no longer collectible due to the limitations period. The assistant
city attorney and taxpayer’s attorney gave brief opening statements, and Board members then
addressed questions to taxpayer, her attorney, and, in some cases, the assistant city attorney.
After about an hour of discussion, a Board member moved to adopt the recommendation of the
subcommittee, and another member then moved to amend the motion to increase the abatement
to either fifty percent of the arrearage, or to waive all interest and penalties. Due to some
uncertainty as to the actual amounts involved, the Board suspended the hearing to allow the
assistant city attorney to retrieve his file, and the Board then took up other business.

        During the Board’s consideration of another matter, Board member Kurt Wright may be
seen on the videotape talking briefly with the assistant city attorney. A minute or two later, the
assistant city attorney addressed the Board concerning the other unrelated abatement request
under consideration, and the Board then voted on the matter. Immediately thereafter, Board
member Wright moved to recess the Board so that the City Council could hear from members of
the public who had been waiting to speak during the Council’s regularly scheduled public forum
period.1 During the public forum session, the assistant city attorney may be seen briefly walking
past the camera. At the completion of the Council’s public forum, the Board reconvened to
continue with taxpayer’s abatement request. The assistant city attorney reported that the
taxpayer’s arrearages consisted of approximately $54,000 in back taxes and $58,000 in interest
and penalties.

        A Board member then clarified that the intent of the amended motion was to abate all
interest and penalties. The City assessor, in response, suggested as a condition of abatement that
the City obtain an agreement from taxpayer to pay the remaining outstanding taxes. The
amended motion was put to a vote, and was defeated ten to three. Board member Wright voted

       1
          The Board of Abatement is composed of the full City Council, the mayor, and the
assessor. It is not uncommon for the City Council to move back and forth between roles, as
occurred here.
                                            2
in favor of the motion. The original recommendation of the subcommittee to abate $16,112 was
then considered, and passed unanimously.

        As noted, in addition to viewing the videotaped hearing, the trial court here took
additional evidence on any off-the-record communications that may have occurred between the
assistant city attorney and the Board. The assistant city attorney testified that he could not recall
speaking with Board member Wright while taxpayer’s hearing was suspended . He did not recall
walking in front of the Board before the abatement hearing reconvened and speaking with
taxpayer’s attorney, nor did he recall speaking with the assessor during the reconvened hearing.
He testified that he had no position on taxpayer’s abatement request, and could not recall making
any off-the- record statements to the Board about the request or seeking to influence their
decision. The City assessor testified that he could not recall speaking with the assistant city
attorney or another City attorney during the hearing nor did he recall the nature of their
conversation. He did assert that, in general, he did not discuss the substance or merits of an
abatement request with members.

        Against this evidentiary backdrop, the trial court considered taxpayer’s claim that she
was denied a fair hearing as a result of improper ex parte communications between the City’s
attorney and members of the Board.2 The trial court found that there was no evidence of any
improper ex parte communications. The court found the statements of neutrality by the assistant
city attorney and the assessor to be credible, and further found that, although neither could recall
the nature of the very brief off-the-record conversations seen on videotape, the fact that
conversations occurred provided “no basis for an inference that their conversation was an
improper attempt to lobby members of the Board against [taxpayer’s] abatement request.”

        On the merits, the court also found no basis for overturning the Board’s decision to abate
only $16,200 of the amount owing rather than the full amount. Taxpayer filed a subsequent
motion for a new hearing, supported by an affidavit from her attorney recounting a conversation
with the assistant city attorney just before the abatement hearing reconvened. He recalled the
assistant city attorney stating that it appeared taxpayer might “receive a substantial abatement”
and asking whether, in that case, taxpayer would be willing to “sell the property and or actually
pay the taxes?” The trial court denied the motion, finding that the evidence did not demonstrate
any improper lobbying or contact with the Board. Prior to the recess, a Board member had
moved to substantially increase the abatement recommended by the Board’s subcommittee, and
the assistant city attorney was simply making a “prediction and inquir[ing] about [taxpayer’s]
position.”


       2
          Taxpayer and the City argued below, and continue to dispute on appeal, the assistant
city attorney’s role at the abatement hearing; taxpayer argues that it was fundamentally
adversarial—in the nature of a prosecutor—while the City maintains that he served as the
Board’s attorney in an advisory capacity. It is, of course, fundamentally improper for an
advocate to engage in off-the-record communications with a judge, or for the judge to consider
matters not in the record. State v. Gokey, 2010 VT 80, ¶¶ 14-21, 188 Vt. 500. In evaluating
taxpayer’s claim that the assistant city attorney engaged in improper ex parte communications
with the Board, the trial court implicitly accepted taxpayer’s characterization of the assistant city
attorney’s role, but found no impropriety. For purposes of resolving the claims on appeal, we
adopt the same approach.

                                                 3
       On appeal, taxpayer renews her claim that she was denied her “due process rights . . .
given [the] ex parte conversations between the counsel for the City and the Board” and that the
Board “was biased or predisposed against [taxpayer] in light of the ex parte communications.” 3
Our review is limited. As we have held, review of municipal abatement decisions by the
superior court is normally on the record, and we apply the same standard as the trial court in
appeals to this Court. Garbitelli v. Town of Brookfield, 2011 VT 122, ¶¶ 9, 14, 191 Vt. 76.
Thus, review of evidentiary findings by the Board is limited to “whether there is any competent
evidence” to support them, id. ¶ 6 (quotation omitted), and we “review the Board’s decision
denying abatement for abuse of discretion.” Id. ¶ 14. Questions of law we review de novo. Id.
¶ 5. We have also recognized, however, that the trial court may, as here, take additional
evidence to supplement the record, id. ¶ 9, in which case we will defer to the trial court’s
findings as to the evidence and testimony taken by the court in the first instance.

        Here taxpayer’s appeal focuses on the process by which the abatement proceeding was
conducted, and taxpayer calls upon this Court to determine “what process is due” in the context
of an abatement hearing, and whether the proceedings afforded that due process. See, In re
Miller, 2009 VT 122, ¶ 13, 186 Vt. 505 (recognizing that the requirements of due process vary
depending on the nature of the proceeding). The due process question is normally a question of
law, although to the extent that the claims rest on what actually occurred in connection with the
hearing, we will defer to the trial court’s findings.

        In this case, the trial court rejected taxpayer’s factual assertion that counsel for the City
improperly discussed her case with members of the Board during the deliberation. The trial
court’s findings about what happened at the hearing are supported by substantial evidence in the
record. The conversation between the assistant city attorney and Board member Wright appears
to have lasted no more than a few seconds, and occurred during the Board’s consideration of a
completely separate and unrelated abatement proceeding. Both men then spoke shortly
thereafter. Later, after taxpayer’s hearing was reconvened, Board member Wright was one of a
minority of members voting in favor of an amended motion to grant taxpayer a much more
substantial abatement than she ultimately received. The trial court had an opportunity to listen to
direct testimony concerning the alleged ex parte conversations, and was in a position to evaluate
the witnesses’ credibility. See Begins v. Begins, 168 Vt. 298, 301 (1998) (noting that we defer
to court’s findings “[g]iven its unique position to assess the credibility of witnesses and weigh
the evidence”). Given this evidence, the trial court’s finding that there were no improper ex
parte communications between the assistant city attorney and members of the Board is not
clearly erroneous.

       3
           In the statement of facts set forth in her opening brief, taxpayer also asserts—without
any citation to the record or legal argument and authority—that the City “acted unconscionably”
and used its “superior position to exploit” her. We do not consider these claims to be sufficiently
briefed or argued to warrant consideration on appeal. See Johnson v. Johnson, 158 Vt. 160, 164
n.* (1992) (declining to consider claims so inadequately briefed as to fail to meet the standards
of V.R.A.P. 28(a)(4)). Taxpayer also argues that the board was predisposed against her, given
the ex parte communications and prior history of the abatement process prior to remand. To the
extent this argument rests on the claim of improper ex parte communications, we reject it for the
reasons set forth above. To the extent taxpayer argues that the Board was otherwise improperly
biased against her, taxpayer fails to identify with specificity the basis for her claim, and we
decline to speculate.

                                                 4
        Accepting these findings, we agree with the trial court that the abatement hearing process
did not violate taxpayer’s fundamental rights. We need not address taxpayer’s legal arguments
that the alleged improper communications violated her due process rights because the record
supports the trial court’s conclusions that the alleged improper communications did not actually
occur. Accordingly, we find no basis to disturb the judgment.

       Affirmed.

                                          BY THE COURT:


                                          _______________________________________
                                          Marilyn S. Skoglund, Associate Justice

                                          _______________________________________
                                          Beth Robinson, Associate Justice

                                          _______________________________________
                                          Thomas A. Zonay, Superior Judge,
                                          Specially Assigned




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