Garbitelli v. Town of Brookfield, No. 21-1-10 Oecv (Eaton, J., Dec. 15, 2010)

[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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                                                  STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Orange County                                                                              Docket No. 21-1-10 Oecv

Michael Garbitelli
      Plaintiff

v.

Town of Brookfield
      Defendant


                      Decision re: Complaint for Review of Governmental Action

       Plaintiff Michael Garbitelli seeks court review of a decision of the Town of
Brookfield Board of Abatement denying his request for property tax abatement.

        Mr. Garbitelli owns real property in Brookfield. During the 2007 town-wide
reappraisal, he refused to permit the town listers to inspect the property, and the town
subsequently valued his property at more than $1.6 million dollars. Mr. Garbitelli
appealed the assessment, but the appeal was dismissed after Mr. Garbitelli refused to
permit the state appraiser to inspect anything other than the foyer and the basement. In
affirming the dismissal of the appeal, the Vermont Supreme Court explained that the
limited inspection allowed by Mr. Garbitelli was “not enough to provide the state
appraiser with evidence sufficient to overcome the presumption” in favor of the town’s
assessment. Garbitelli v. Town of Brookfield, 2009 VT 109, ¶ 11, 186 Vt. 648 (mem.).

        Mr. Garbitelli then filed another grievance in 2009, but this time permitted the
town listers to inspect the property. After inspection, the listers reduced the fair market
value to $957,000. Mr. Garbitelli then sought a hearing before the town board of
abatement to request a reduction in taxes for 2007 and 2008 based upon the new
valuation. He argued that the reduced valuation showed that the 2007 valuation was
clearly “a manifest error or a mistake of the listers.” 24 V.S.A. § 1535(a)(4).

        The board denied the request after hearing. In a written decision, the board
explained that there was no mistake attributable to the listers: after plaintiff prevented the
town from inspecting the property, it was appropriate for the listers to value the property
using the best information that was available to them. The board also explained that the
abatement procedures were not a substitute for the procedures for appealing property
valuations.

        Mr. Garbitelli now seeks judicial review of the board’s decision under V.R.C.P.
75. He argues that the board’s decision was arbitrary and capricious, and that it was error
for the board to treat the disparity in assessments as “self-inflicted.” He asks this court to
find a mistake on the part of the listers, to grant him a reduction in taxes for the tax years
2007 and 2008 based on the current assessment, and to prohibit the town from attempting
to collect taxes based on the 2007 and 2008 assessments.

        At the status conference held in August 2010, the parties disagreed about the
applicable scope of review, and about whether a court trial would be needed to determine
the issues presented. The parties thereafter submitted legal memoranda and motions that
can be construed as cross-motions for summary judgment.

        Rule 75 is the modern equivalent of the extraordinary writs that existed at
common law, including mandamus, certiorari, and prohibition. A complaint seeking
review of governmental action must therefore seek relief “in the nature of” one of the
common-law writs. Hunt v. Village of Bristol, 159 Vt. 439, 440–41 (1992). In this case,
plaintiff seeks review of a decision of a town board of abatement, and thereby seeks relief
in the nature of certiorari. Chapin Hill Estates, Inc. v. Town of Stowe, 131 Vt. 10, 13
(1972).

        Review in the nature of certiorari is confined to questions of law affecting the
merits of the case. Ahern v. Mackey, 2007 VT 27, ¶ 8, 181 Vt. 599 (mem.). As such, the
review does not involve a de novo hearing, but rather is based upon the record that was
created before the town board. Hunt, 159 Vt. at 440–41; Molesworth v. Univ. of
Vermont, 147 Vt. 4, 6–7 (1986). It is true that the court may take testimony as needed to
supplement the record and facilitate appellate review, but this is appropriately done only
when the record has not been adequately preserved. State v. Forte, 159 Vt. 550, 554–55
& n.2 (1993); Chapin Hill Estates, 131 Vt. at 13. Even then, the need for additional
evidence depends upon the specific legal issues raised by the petitioner and the particular
circumstances of the case, and any additional evidence is relevant only to the extent that
it sheds light upon the precise manner in which the board is alleged to have acted outside
the bounds of its authority. Rhodes v. Town of Woodstock, 132 Vt. 323, 324–25 (1974).

        Here, the board issued a written decision explaining its denial of taxpayer’s
request for abatement, and thus there is no factual dispute about what the board decided
or the grounds upon which the decision was made. Nor are there any disputes about the
facts of the case. As such, there is no need to take additional testimony in this case, and
the record is sufficiently established to support a decision on the merits by this court on
the memoranda already filed. Hunt, 159 Vt. at 442.

        The parties agree that tax abatement is an equitable remedy, and the statute makes
clear that the board of abatement has discretion to determine whether abatement should
be granted in any particular case. See 24 V.S.A. § 1535(a) (explaining that “[t]he board
may abate in whole or part taxes, interest, and collection fees . . . accruing to the town in
the following cases”) (emphasis added). As such, the scope of this court’s review is
confined to determining whether the board’s decision was an abuse of discretion, Hunt,
159 Vt. at 441 (quoting Royalton College, Inc. v. State Board of Education, 127 Vt. 436,
447–48 (1969)), and for the following reasons, the court does not find any abuse of
discretion here.



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        First, the statute authorizes abatement upon a finding of a “manifest error or a
mistake of the listers.” 24 V.S.A. § 1535(a)(4) (emphasis added). Here, as the board
explained, the situation was not the result of any mistake on the part of the listers, but
rather the taxpayer’s own decision to prevent the town from inspecting the property. If
there was incomplete information about the property at the time of the valuation,
therefore, it was the result of the taxpayer’s own conduct and not the result of any fault
on the part of the listers. Given the statute’s emphasis that any error or mistake must be
attributable to the listers, there was no abuse of discretion in determining that abatement
should not be granted here.

       Second, the abatement procedures are not meant to provide a second opportunity
to appeal property valuations. In this case, plaintiff already sought court review of the
2007 assessment, and his appeal was dismissed because he did not provide the state
appraiser with enough information to overcome the presumption that the town’s valuation
was correct. Garbitelli, 2009 VT 109, ¶ 11; Rutland Country Club v. City of Rutland,
140 Vt. 142, 145 (1981). It was not an abuse of discretion for the board to conclude that
the question of valuation had already been determined in this case, and that the abatement
procedures should not be used as another opportunity to litigate the fair market value of
the property.

         Finally, the record does not support plaintiff’s argument that the board
misconstrued his request for abatement. Plaintiff’s essential claim is that the 2007 and
2008 assessments were mistaken. As explained in more detail above, the board
considered the evidence relative to this claim and determined that there was no mistake in
the assessments that was attributable to the town listers. Because this determination was
well within the board’s discretion, and supported by both the evidence and the abatement
statute, plaintiff is not entitled to relief in the nature of certiorari.


                                         ORDER

       For the foregoing reasons, defendant Town of Brookfield’s motion for summary
judgment is granted. Plaintiff Michael Garbitelli’s motion for summary judgment is
denied. A final judgment order shall issue separately.

       Dated at Chelsea, Vermont this ____ day of December, 2010.


                                              _______________________________
                                              Hon. Harold E. Eaton, Jr.
                                              Superior Court Judge




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