

Franks v. Town of Essex (2011-359
& 2012-258)
 
2013 VT 84
 
[Filed 27-Sep-2013]
 
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.
 
 

2013 VT 84 

 

Nos. 2011-359 & 2012-258

 

Gillian Franks


Supreme Court


 


 


 


On Appeal from


     v.


Property
  Valuation and Review Division


 


 


 


May Term, 2012


Town of Essex


April Term, 2013


 


 


Rockingham
  Area Community Land Trust
 
     v.
 
Town of Rockingham
 
Merle R. Van Gieson, State
  Appraiser (2011-359)
Norman E. Wright, State
  Appraiser (2012-258)
 

Rebecca E. Boucher, Brian S. Dunkiel,
and Geoffrey H. Hand of Dunkiel Saunders Elliott 
  Raubvogel & Hand PLLC, Burlington, for
Plaintiff-Appellant. (2011-359)
 
William F. Ellis of McNeil, Leddy & Sheahan, P.C.,
Burlington, for Defendant-Appellee.
  (2011-359)
 
Robert A. Gensburg of Gensburg, Atwell and Greaves, PLLC,
St. Johnsbury, for 
  Plaintiff-Appellee. (2012-258)
 
William F. Ellis and Kevin J. Coyle of McNeil, Leddy &
Sheahan, P.C., Burlington, for
  Defendant-Appellant. (2012-258)
 
James W. Barlow, Vermont League of Cities and Towns,
Montpelier, for Amici Curiae 
  Vermont League of Cities and Towns and Vermont
Assessors and Listers Association.
   (2011-359 & 2012-258)
 
 
PRESENT:   Reiber, C.J., Skoglund, Burgess and
Robinson, JJ., and Zonay, Supr. J.,
           
         Specially Assigned
 
 
¶ 1.            
REIBER, C.J.   These cases raise the question of how
nonrental residential properties subject to housing-subsidy covenants should be
valued for property-tax purposes.  Taxpayers in both cases contend that
the governing statute mandates an automatic reduction in valuation for
properties subject to these covenants or, what is effectively equivalent, a
mandatory tax exemption on a portion of the property’s value.  The towns
in which these properties are located contend instead that the statute, 32
V.S.A. § 3481, requires that municipal listers give individualized
consideration to the effect, if any, these covenants may have on the fair
market value of a given property when they determine the appropriate assessed
value for the allocation of property taxes.  The Vermont League of Cities
and Towns and the Vermont Assessors and Listers Association join the towns as
amici curiae.  We agree with the towns that the existence of a
housing-subsidy covenant is but one of myriad factors listers and assessors
must take under advisement in ascertaining a property’s fair market
value.  
¶ 2.            
In the first of these two cases, Franks v. Town of Essex,
taxpayer Gillian Franks (Franks) owns an affordable-housing unit in the Town of
Essex that is subject to a housing-subsidy covenant.  After taxpayer
appealed the assessed value of the unit, the state appraiser concluded that the
mere existence of a housing-subsidy covenant does not automatically lower a
property’s fair market value,[1]
and found that in this specific case, the covenant did not, in fact, negatively
affect the property’s value.  Taxpayer appealed the state appraiser’s
decision to this Court.  
¶ 3.            
In the second case, Rockingham Area Community Land Trust v. Town of
Rockingham, taxpayer Kathleen Margaret (Margaret) owns a house subject to a
housing-subsidy covenant granting the land trust a ninety-day purchase option
and ostensibly capping the amount she will receive upon the sale of her home to
her original contribution, plus twenty-five percent of its appreciation and
capital improvements.  The house sits on land owned by the trust, which
leases the land to Margaret.  Under the terms of the ninety-nine-year lease,
Margaret agreed to pay all property taxes assessed on the land and house. 
After the trust grieved the assessed value of the house and land on Margaret’s
behalf, the state appraiser in this second case eventually concluded that, by
law, housing-subsidy covenants automatically decrease a property’s value. 
The state appraiser then reduced the assessed value to a figure that appears to
correspond to the property’s prior-year assessment, although the appraiser did
not explain the calculation’s basis.  The town appealed the state
appraiser’s determination to this Court.      
       
¶ 4.            
We hold that the statute does not compel a so-called automatic reduction
in property tax valuation for all parcels subject to a housing-subsidy
covenant, but instead demands an individualized consideration of the effect a
particular covenant has on a property’s fair market value.  For the
reasons that follow, we affirm the state appraiser’s determination in Franks
but reverse the appraiser’s decision in Rockingham, remanding the latter
case for consideration of the property’s value in light of our holding.  
I.
¶ 5.            
Central to both these appeals is the meaning of our property-valuation
statute.  Taxpayers in both cases contend that the unambiguous statutory
language of 32 V.S.A. § 3481 requires a decrease in the fair market value
of a taxpayer’s property if it is subject to a housing-subsidy covenant. 
Vermont employs an ad valorem system for the taxation of property.  That
is to say, property is taxed in accordance with its actual value.  “The
property taxation statute requires the listed value of real property to be
equal to its appraisal value, which in turn must reflect its estimated fair
market value.”  Barrett v. Town of Warren, 2005 VT 107, ¶ 6,
179 Vt. 134, 892 A.2d 152 (citing 32 V.S.A. § 3481(1)-(2)).  In
Vermont, then, property is taxed in accordance with its fair market value and
not based upon an owner’s equity.  A property’s estimated fair market
value is defined by statute as “the price which the property will bring in the
market when offered for sale and purchased by another, taking into
consideration all the elements of the availability of the property, its use
both potential and prospective, any functional deficiencies, and all other
elements such as age and condition which combine to give property a market
value.”  32 V.S.A. § 3481(1). 
¶ 6.            
Since 1997, the municipal listers and assessors who determine
property-tax valuations have been specifically required to include in this
calculation “a consideration of a decrease in value in nonrental residential
property due to a housing subsidy covenant . . . .”  Id.;
1997, No. 60, § 64.  These covenants—designed to help maintain
affordable housing—may include, among other things, restrictions on use, resale
price, tenant income and rents, as well as limitations on the income of a
purchaser of a housing unit for his or her own residence.  See 27 V.S.A.
§ 610(b).  The covenants are generally executed by lower-income
homebuyers as a condition for the receipt of a purchase subsidy from the
Vermont Housing and Conservation Board (VHCB) or its nonprofit partners, whose
by-laws require that the subject housing be maintained as affordable housing on
a perpetual basis.  See 10 V.S.A. §§ 303(3)-(4), 321(a)(1).
¶ 7.            
Taxpayers in both cases maintain that the housing-subsidy-covenant
“consideration” language in the property-tax-valuation statute requires listers
to presume an automatic decrease in a property’s value based on the mere
existence of a covenant of this type.  Although deference to the state
appraisers’ legal interpretation of 32 V.S.A. § 3481(1) is generally
appropriate, it does not resolve this matter because two appraisers arrived at
conflicting interpretations of the statute.  Barrett, 2005 VT 107,
¶ 5 (Court will generally uphold state appraiser’s legal interpretation of
§ 3481(1) absent a compelling indication of error).    
¶ 8.            
We begin by observing that on all issues of statutory interpretation, we
presume the Legislature intends the plain and ordinary meaning of a
statute.  Pease v. Windsor Dev. Review Bd., 2011 VT 103, ¶ 17, 190 Vt. 639, 35 A.3d 1019 (mem.).  Here,
the statute imposes a duty on municipal listers to include “a consideration
of a decrease in value” from a qualifying housing-subsidy covenant.  See
32 V.S.A. § 3481(1) (emphasis added).  Words that are not
defined within a statute are given their plain and ordinary meaning, which may
be obtained by resorting to dictionary definitions.  Pease, 2011 VT
103, ¶ 17.  To “consider” generally means “to think about with care or
caution,” while “consideration” is “continuous and careful thought” or “a
taking into account.”  Webster’s New Collegiate Dictionary 241-42
(1977).  Other definitions we have consulted do not deviate from this
general understanding.  See, e.g., Webster’s International Dictionary 569
(2d ed. 1961) (defining the noun “consideration” principally as: “observation;
contemplation,” “[the] [a]ct or process of considering continuous and careful
thought; examination; deliberation; attention,” “[t]houghtful or sympathetic
regard or notice,” and “[t]hat which is, or should be, considered as a ground
of opinion or action . . . . ”); Black’s Law Dictionary 277
(5th ed. 1979) (defining the verb “consider” as “[t]o fix the mind on, with a
view to careful examination. . . . [t]o
examine. . . . [t]o inspect. . . .[t]o
deliberate about and ponder over. . . . [t]o entertain or
give heed to.”).  Based on these definitions, a lister or assessor must
give thought to and take into account a potential decrease in value as a result
of a covenant.   The very act of taking something under advisement in
this manner does not suggest the sort of specific, pre-ordained outcome of an
automatic decrease in valuation.   
¶ 9.            
Nothing in the statutory language suggests its drafters intended an
interpretation that contradicts the plain meaning of “consideration” by
imposing a rote reduction in assessed value for all properties subject to a
housing-subsidy covenant.  First, the drafters’ use of an indefinite
article to describe any decrease in value attributable to a housing-subsidy
covenant supports this conclusion.  In describing the type of decrease for
which listers must include consideration, the statute employs the indefinite
article “a”—as in “a decrease”—which indicates that there may or may not be a
reduction in value, instead of the definite article “the,” which would imply
that the presence of a covenant necessarily reduces value.  Cf. In re
Swanton Mkt. Area, 112 Vt. 285, 291-92, 23 A.2d
536, 538 (1942) (distinguishing between “a loss” and “the loss,” and concluding
latter phrase means “the definite loss which has occurred rather than an
indefinite loss which may occur”).  Second, even if the
property-taxation statute could be understood to mandate a so-called automatic
decrease in assessed value, its interaction with the housing-subsidy-covenant
statute would leave unanswered the more vexing question of the amount by which
to reduce a nominally restricted property’s value.  Taxpayers’
interpretation would, in effect, mandate an automatic valuation decrease of an
indeterminate amount.  In cases where market evidence and analyses found
absolutely no reduction in value, listers would face the unenviable task of
reconciling an “automatic decrease” with the need to assign a value reflecting
actual data.  This is precisely the sort of absurd result we seek to avoid
when interpreting statutes.  See Shlansky v. City of Burlington,
2010 VT 90, ¶ 8, 188 Vt. 470, 13 A.3d 1075 (“In looking to the statutory
language as an expression of legislative intent, we presume the Legislature
intended an interpretation that furthers fair, rational consequences, and not
one that would lead to absurd or irrational consequences.” (quotation omitted)).
¶ 10.        
From a public-policy standpoint, an individualized consideration is
particularly important given the fact that not all housing-subsidy covenants
are built alike.  Great variation in their terms is permissible, and this
variety could easily yield divergent market effects.  See 27 V.S.A.
§ 610(b) (containing nonexhaustive list of restrictions and noting that
covenants may be perpetual or time limited).  Although the covenants “run
with the land,” id. § 610(e), they “may be amended or terminated by
written agreement of the owner of the land and all persons or entities holding
the right to enforce the covenant.”  Id. § 610(d). 
Either the subsidy’s provider or a state-designated affordable-housing organ or
nonprofit corporation to whom the right of enforcement has been assigned may
enforce the covenants.  Id. § 610(e).  As illustrated by
the record in both of these cases, the housing-subsidy covenants are frequently
terminated by consent.  The language in the Rockingham property
covenant imposes no limitation on the ability of the parties—the taxpayer and
the land trust—to terminate the restriction.  The land trust involved in
the Rockingham property can, in fact, extinguish the covenant through
purchase, foreclosure or by agreement.  Without individualized analysis of
a covenant’s specific terms and the market context—an inquiry that may well
discern no difference in estimated fair market value between the nominally
restricted subject property and other unencumbered properties—the concept of a
so-called automatic decrease would be meaningless.  
¶ 11.        
Taxpayers cite Prowitz v. Ridgefield Park Vill., 568 A.2d 114,
(N.J. Super. Ct. App. Div.  1989) for the proposition that automatic
decrease in assessed value is required.  We find their argument
unpersuasive.  To begin with, the Appellate Division of the New Jersey
Superior Court remanded that case for a consideration of the extent to which
restrictive covenants affected the subject property’s tax valuation.  568
A.2d at 119 (remanding for effect of restriction to be taken “into
account”).  The court did not specify an automatic decrease, but instead
mandated precisely the type of consideration we have said our statute
commands.  Furthermore, several salient distinctions convince us that Prowitz
differs materially from the present case.  First, the Prowitz court
noted that municipal appraisers should assess neither the value transferred
through an easement appurtenant to a dominant parcel, which enjoys a
corresponding increase in value, nor the value transferred to the public more
generally through an easement in gross.  Id. at 117.  The
court also observed that “the whole gamut of governmental regulation imposing
like restraints” exerts a “depreciating effect on value.”  Id. at
118.  Here, no such shift of value occurred, nor does governmental
regulation for the public good categorically and perpetually reduce the
properties’ fair market values.  Although the Prowitz court spoke
in glowing terms of the indisputable social good and public benefit of
maintaining affordable housing, the court’s reasoning, in fact, relied heavily
on the existence of a statewide statutory obligation to provide a certain
quantity of affordable housing within each jurisdiction.  See id.
(“[T]he provision of a fair share of affordable housing is, by reason of the
Fair Housing Act, a municipal obligation imposed by statute.”).  These
restrictions helped the municipality in achieving its legally mandated
lower-income-housing requirements, in effect offering a quid pro quo for the
corresponding decrease in the municipal tax base. 
¶ 12.        
It does not appear from the statutory language that the Legislature
intended to impose such a laudable-but-sweeping requirement on Vermont
municipalities.[2] 
Rather, the State created a program to facilitate lower-income home ownership
by making provision for grants to eligible buyers to help defray the purchase
cost.  The regime seeks to restrain the future price of the same
properties by requiring owners in most cases to forego a portion of a home’s
regular market appreciation pursuant to a housing-subsidy covenant.  In
enacting amendments to the property-tax statute, the Legislature required
listers to be mindful of the potential market impact of the housing-subsidy
covenants that often accompany these grants.  In doing so, however, the
Legislature did not impose an affirmative duty on all town residents to
personally subsidize these properties at the local level by forcing neighbors
to shoulder a disproportionate share of the cost of education and municipal
services.  Yet this is precisely the interpretation urged by taxpayers in
both cases.  We therefore hold that the statute as written does not
require the imposition of an automatic reduction in a property’s
valuation.   
 
 
II.
¶ 13.        
There remains the more fact-intensive question of whether the assessors
and listers in these cases properly considered the effect, if any, of these
covenants.   
A. Franks
 
¶ 14.        
Franks contends that, even if the property-taxation statute does not
mandate an automatic decrease in valuation, the state appraiser abused his
discretion in failing to defer to the methodology contained in a memorandum
authored by the Director of the Division of Property Valuation and Review
(PVR).  Franks urges this Court to defer to the memorandum’s methodology
rather than the state appraiser.  Franks maintains that the evidence does
not support the state appraiser’s finding that the housing-subsidy covenant
resulted in no decrease in fair market value.[3]  We conclude that the state
appraiser’s valuation was reasonably drawn from the evidence, and that the
state appraiser correctly understood the issue presented.
¶ 15.        
Franks bought the subject property in 2003 with the assistance of grants
from Champlain Housing Trust (CHT), which is one of the entities to which VHCB
makes housing-subsidy grants pursuant to its statutory authority.[4]  At the time, the property was
valued at $130,000.  Franks paid $81,250 and financed the remainder with
grants of $48,750 from the housing trust and VHCB.  She signed a covenant
in which she agreed that, at resale, she would receive full credit for her capital
improvements, plus twenty-five percent of appreciation.  More
specifically, the covenant provides that if Franks desires to sell the
property, she must provide written notice to CHT and an appraisal must be
performed.  After completion of the appraisal, CHT has 180 days to locate
an eligible buyer.  If CHT locates an eligible buyer, taxpayer must sell
the property to CHT for the “option price.”  The “option price” is the
owner’s original purchase price, plus any capital improvement credits, plus the
owner’s twenty-five percent appreciation share, minus the grants provided by
CHT and VHCB.[5] 
The new buyer’s net purchase price is the option price plus CHT’s six percent
fee.  If CHT cannot locate an eligible buyer within 180 days, taxpayer may
sell the property to any purchaser, provided that she repays the principal
amount of the grants plus fifty percent of any increase in appreciation
resulting from the conveyance.  
¶ 16.        
In 2010, the Town assessed the value of Franks’ property at
$173,900.  Franks appealed this assessment to the Town’s Board of Civil
Authority, which affirmed the Town’s valuation.  Franks then appealed to
the state appraiser.  Franks argued that the Town improperly valued her
home as if there were no covenant.  That is to say, she claimed the Town
treated the property as if she paid $130,000 in 2003, could have sold it for
$173,900 in 2010, and could claim the full appreciation upon resale.  She
argued that it is unfair to tax her on the unrestricted value of her home
because that value does not reflect the restrictions contained in the
covenant.  She cited a Department of Taxes memorandum authored by the PVR
in support of her argument.  The memorandum suggests valuing homes
encumbered by housing-subsidy covenants by using the new buyer’s net purchase
price, which is the option price plus a transaction fee.  The Town
argued that the assessor considered the existence of the housing-subsidy
covenant, and that he found “no market evidence to suggest that the existence
of the covenant had any impact on value.” 
¶ 17.        
The state appraiser found that listers and assessors in some
municipalities have determined that such covenants reduce properties’ fair
market value, while others have determined they do not.  For example, the
City of Burlington applies an across-the-board reduction in property-tax bills
for CHT homes.  The state appraiser, however, did not interpret 32 V.S.A.
§ 3481 to require assessors to automatically lower fair market value or
the listed value for property subject to a housing-subsidy covenant. 
Although such covenants must be “considered” by assessors pursuant to
§ 3481, the state appraiser said, comparable-sales data are needed to
determine if the fair market value is in fact affected.  Taxpayer
presented evidence in support of her argument for a lower-listed value, but she
did not present comparable-sales properties or other market evidence that the
covenant affected the fair market value.  Thus, the state appraiser found
the best estimate of fair market value to be $174,300.  Applying an
equalization ratio of 99.79%, the state appraiser found the listed value of the
property to be $173,900.  The state appraiser did not defer to the PVR
memorandum, reasoning that the methodology contained therein is only used as
guidance if the assessor finds a decrease in value because of a housing subsidy
covenant, and here, there was no such decrease.    
1.
¶ 18.        
We reject the suggestion that we must defer to the PVR memorandum for
several reasons.  First, we defer only when there can be some legitimate
dispute as to the meaning of the language in the statute the agency is charged
with executing.  We will not interpret statutory language in a manner at
odds with the statute’s language merely because it comes from someone within
the agency charged with implementation.  Even if we did defer to the
memorandum at issue here, the document’s language compels an outcome
diametrically opposed to Franks’ argument.  The PVR memorandum specifically
states that it “outlines a uniform approach that local listers can
employ for determining the listed value of owner-occupied homes subject to
[housing subsidy covenants]” (emphasis added).  It goes on to suggest a
valuation approach, and that if an assessor chooses to use the valuation
approach, he or she must work with the nonprofit and homeowner.  Finally,
citing § 3481, it notes that “Vermont law requires local assessment
officials to consider the effect of this type of resale restriction when valuing
this type of property.”
¶ 19.        
Deference to the PVR director is unnecessary here because the memorandum
merely suggests a methodology to be used in valuing covenant-restricted
properties.  The memorandum restates the statutory language that a
covenant must be considered.  The memorandum specifically leaves the
choice of whether to use its methodology up to the assessor.  Thus, the
state appraiser did not abuse his discretion in declining to follow the
suggestion in the memorandum, and we decline to defer to the PVR director on
appeal.[6]
2.
¶ 20.        
Franks next argues that the record does not support the state
appraiser’s finding that the town assessor considered the impact of the covenant
on the fair market value of the property.  Franks also contends that the
state appraiser’s reliance on the town assessor’s compiled list of ten
condominiums sold in 2009 and 2010 was erroneous.  Franks argues
specifically that the list compares the sale of one home subject to a covenant
to a number of homes not subject to covenants, and thus no comparable sales
were used.  She also maintains that the town assessor’s use of the prices
paid for real property found on PTTRs was erroneous because those numbers
include the grants provided by CHT, and taxpayer cannot realize that amount as
equity in the property.  Finally, she contends that the one home subject
to a covenant was assessed without taking the covenant into account.  
¶ 21.        
The state appraiser found that the town assessor took into consideration
the housing-subsidy covenant, and that there was no decrease in value. 
Specifically, the state appraiser found that taxpayer presented evidence
sufficient to rebut the presumption of the validity of the town assessor’s
appraisal.  However, he concluded that the price paid as reflected on a
PTTR generally represents fair market value, and that the new buyer’s net
purchase price is obviously lower than that on the PTTR because CHT subsidizes
a portion of the cost.  The state appraiser found that the CHT grant is
akin to a zero-percent second mortgage or owner-financing that CHT recovers
when the property is resold.  
¶ 22.        
Before turning to Franks’ specific allegations of error, we emphasize
the limited nature of our review on this factual issue.  We defer to the
state appraiser when the findings are supported by the record.  Lake
Morey Inn Golf Resort, Ltd. P’ship v. Town of Fairlee, 167 Vt. 245, 248,
704 A.2d 785, 787 (1997).  Thus, if there is some basis in evidence for
the valuation, in order to prevail the taxpayer must demonstrate that the state
appraiser’s exercise of discretion was clearly erroneous.  Id. 
We will uphold the state appraiser’s findings if they are rationally drawn from
the evidence.  Allen v. Town of W. Windsor, 2004 VT 51, ¶ 4,
177 Vt. 1, 852 A.2d 627.  
¶ 23.        
Franks produced evidence, in part through testimony, in support of her
arguments.  Emily Higgins, the director of the Homeownership Center for
CHT, explained generally how the grants work.  She also testified that the
fair market value of a covenant-restricted home is its restricted value, while
the unrestricted value is used as a starting point from which to calculate the
option price and the new buyer’s net purchase price.  John Emmeus Davis, a
partner at a consulting cooperative that specializes in affordable housing
policy, testified that the resale restrictions imposed by the covenant are a
burden on the value of the property.  He also testified that the list of
condominiums sold in 2009 and 2010 does not demonstrate that the covenant does
not impact fair market value because it looks at the unrestricted value, not
the restricted value. 
¶ 24.        
The town assessor testified that he took the covenant into
consideration, and found no evidence that the covenant reduced the value of the
property.  He also testified that the covenant dictates the option price
at which the owner must sell the property back to CHT, and the amount of equity
the owner may realize upon sale, but that the covenant did not, in this case,
affect the value of the property.  The town assessor testified that he
looked to 2009 and 2010 sales of condominiums in Essex, one of which was
subject to a housing-subsidy covenant.  Analyzing those sales, using the
price paid for the property on the PTTR, he found no reduction in Franks’
property’s value.   
¶ 25.        
Michael Mahoney, a real estate appraiser, testified that such covenants
do not necessarily require a decrease in listed value, because the price at
which someone sells or buys properties encumbered by such covenants is not
always a reflection of the value of those properties.  He testified that
the restricted price is not arrived at by way of an arms-length transaction
because it is the result of a contractual arrangement between the owner and
CHT.  The covenants affect the net amount that sellers receive when the
property is sold, he said, but the financial assistance provided by CHT in the
form of the grant does not actually reduce a property’s value.  R. Todd
LeBlanc, an assessor for the City of South Burlington, testified that he takes
into consideration similar covenants, and that there has been no effect on fair
market value.  He testified that the covenants are essentially “back end
loaded mortgages,” wherein CHT provides financial assistance in the form of
grants, and upon resale, the grants plus seventy-five percent of equity that
has accrued is repaid to CHT.  He noted that because the City of South
Burlington does not adjust the value of property based on the amount of any
outstanding liability on the property, there is no basis for adjusting value in
cases like this based on the amount of the grant. 
¶ 26.        
Although Franks faults the comparable sales prepared by the town
assessor, the burden of persuasion remained with Franks to show that the
appraisal did not reflect the fair market value of the property.  Kruse
v. Town of Westford, 145 Vt. 368, 372, 488 A.2d 770, 773 (1985). 
Franks failed to carry that burden.  Importantly, she did not present
comparable-sales market evidence to show that the covenant reduced fair market
value.  Franks’ witnesses testified that the covenant affects fair market
value and that the restricted value is the property’s fair market value. 
The Town’s witnesses testified to the opposite conclusion—that CHT’s financial
assistance, which must be repaid, does not affect the value of property and
that the unrestricted price is the better indicator of fair market value. 
The state appraiser’s findings are supported by the testimony of the Town’s
witnesses as to the effect of the covenant.  The state appraiser was
entitled to find on the basis of the evidence that the unrestricted value was
the result of an arms-length transaction, and therefore was a good indicator of
fair market value, in contrast to the restricted value.  Although the
record contains contradictory evidence, we defer to the state appraiser’s
decision that the unrestricted price reflects fair market value in this
case.  Lake Morey Inn Golf Resort, L.P., 167 Vt. at 248, 704 A.2d
787.
3.
¶ 27.        
Franks’ final contention is that the state appraiser misunderstood the
issue presented and predetermined the outcome of this case.  At the
hearing, the state appraiser stated that the issue to be determined was the
listed value of the property, or the amount on which the owner pays
taxes.  He noted that the fair market value is the value determined by a
licensed fee appraiser, and the listed value is determined therefrom. 
Franks argued that the issue was the fair market value of the home.
¶ 28.        
This argument merely reveals the parties’ use of different terminology,
likely originating from the equation of fair market value with listed value in
32 V.S.A. § 3481.  As noted, “[t]he property taxation statute
requires the listed value of real property to be equal to its appraisal value,
which in turn must reflect its estimated fair market value.”  Barrett,
2005 VT 107, ¶ 6 (citing 32 V.S.A. § 3481(1)-(2)).  While Franks
used the term “fair market value,” the state appraiser was using the term
“listed value.”  Despite this difference in terminology, the transcript
and the state appraiser’s decision reflect that the state appraiser understood
the basic issue, which was how Franks’ home, subject to a housing-subsidy
covenant, should be valued for property tax purposes.
B. Rockingham Area Community Land Trust
¶ 29.        
In Rockingham, it is the Town that appeals the state appraiser’s
determination.  The relevant facts are as follows.  Margaret
purchased her three-bedroom ranch house in Bellows Falls in June 2008. 
The previous owners had sold the property to the land trust for $100,700 and
the land trust immediately sold the house to Margaret for $121,000.  The
land trust provided Margaret with $18,500 of the purchase price in the form of
grants.  The trust, which through a series of conveyances owns the
underlying parcel in fee simple, leased the land to Margaret, who agreed as
part of the accord to pay all ad valorem taxes on the land and house.
   
¶ 30.        
As a condition of receiving the purchase grants, Margaret executed a
housing-subsidy covenant similar to the covenant to which the previous owners
had agreed.  By the terms of the covenant, the land trust possesses a
ninety-day option to purchase the house for the lesser of the following:
 (1) the original purchase price of $121,000, minus the $18,500 grant,
plus twenty-five percent of any appreciation on the property, plus credit for
any capital improvements, or (2) the total appraised value of the property upon
notice to sell, minus the $18,500 grant.  The covenant contains three
provisions for termination:  when the land trust executes its purchase options;
if Margaret’s mortgagees foreclose; or by written agreement between the land
trust and Margaret.  
¶ 31.        
In 2010, the town listers set a value of $152,000 for the
property.  Margaret appealed to the listers but was denied.  She then
appealed to the town Board of Civil Authority, which lowered the total assessed
value to $143,800.  Margaret then appealed to the state appraiser,
pursuant to 32 V.S.A. § 4461 et seq.  The state appraiser in
Margaret’s case found that “[n]either party offered any market data or sales to
support market value showing that any properties were affected” by the
housing-subsidy covenants.  The state appraiser nevertheless concluded
that the statute required an automatic reduction in listed value, and noted
that the Town’s 2010 reassessment was not the result of a material change in
the property or a town-wide revaluation before setting an April 1, 2010 value
of $118,000, which appears to correspond to the prior-year listed value.  
¶ 32.        
The Town appeals the state appraiser’s decision, arguing that the state
appraiser erred by arbitrarily reducing the assessed value to $118,000 when
Margaret had not presented any evidence tending to establish the covenant’s
purported negative effect on fair market value or the amount of the alleged
decrease.  Margaret maintains that even without an automatic decrease in
value, the state appraiser nonetheless reached the correct result in setting a
taxable value of $118,000 because the covenants actually had the effect of
reducing the property’s value to that amount.    
¶ 33.        
On appeal, “[t]his Court will affirm the State Appraiser’s decision as
to fair market value if the findings were rationally drawn from the evidence
and were based on a correct interpretation of the law.”   Zurn v.
City of St. Albans, 2009 VT 85, ¶ 7, 186 Vt. 575, 980 A.2d 795
(mem.).  Here, we conclude that the record lacks the evidentiary support
necessary to sustain the appraiser’s market-value determination on the basis of
the covenant’s purported effect.  When a taxpayer appeals a town’s listing
to the state appraiser, the municipality bears the initial burden to produce
evidence as to fair market value.  Id. ¶ 7.  A town’s
valuation enjoys a presumptive validity on appeal to the state appraiser, but
the taxpayer may rebut that presumption by producing admissible evidence. 
Allen, 2004 VT 51, ¶ 4.  Once the
taxpayer produces admissible evidence tending to prove the taxpayer’s claim,
the town must produce some evidence to justify its appraisal, although the
ultimate burden of persuasion remains with the taxpayer.  Kruse,
145 Vt. at 372, 488 A.2d at 773.  As the appraiser observed in his
conclusions:  “Neither party offered any market data or sales to support
market value showing any properties were affected the by [sic] housing
covenants.”  Margaret thus failed to meet her burden of persuasion in her
appeal to the state appraiser, and it was an abuse of discretion for the state
appraiser to “pick a figure out of thin air.”  Cf. Zurn, 2009 VT
85, ¶ 10 (affirming state appraiser’s rejection of discount where taxpayers did
“not contest the State Appraiser’s find§ings that they offered no evidence as
to what discount would be appropriate”).   We therefore reverse the
state appraiser’s decision and remand. 
The state appraiser’s
decision in Franks is affirmed; the state appraiser’s determination in
Rockingham is reversed and remanded for further consideration in light of this
holding.  
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice
 

 
¶ 34.        
ROBINSON, J., dissenting.   I agree with the majority’s
express central holding that 32 V.S.A. § 3481 does not compel an automatic
reduction in property tax valuation for all parcels subject to a
housing-subsidy covenant but instead demands an individualized consideration of
the effect a particular covenant has on a property’s fair market value.  Ante,
¶ 4.  But I believe the majority’s focus on whether the statute
mandates an automatic reduction from the unrestricted fair market value of a
property versus individualized consideration of the effect of a covenant
obscures the pivotal issue in this case.  
¶ 35.        
The real bone of contention here is whether, in conducting the requisite
individualized consideration, an assessor is supposed to determine the impact
of the restriction on the appraised unrestricted market value of the
property—which appears as the sale price on the property transfer tax return
(PTTR)—or whether the assessor is supposed to figure out what a willing buyer
would pay a willing seller for the property subject to all of the covenant
restrictions, including the requirement that owner sell the property for what
the majority calls “the option price,” such that the assessed value of the
property does not encompass the additional quantum of market value that the
property would have without the restrictions.  Put another way, the key
question is:  With a home subject to a statutorily qualifying
housing-subsidy covenant, is the portion of the unrestricted market value that
is essentially “held” by the participating nonprofit or other agency in the
form of a grant and/or unrealized appreciation part of the fair market—and thus
taxable—value of the property, or is the fair market value of the property in
this context defined solely with reference to the value a buyer would pay for
the property given the restrictions, including the limits on the proceeds that
can be realized by the owner upon resale?  I believe this is the question
that actually divides the parties and the respective state appraisers. 
Although the majority does not squarely resolve this fundamentally legal
question, I believe it does so implicitly in the context of its evaluation of
the evidence in these two cases.  
¶ 36.        
For the reasons set forth below, I conclude that in enacting 32 V.S.A.
§ 3481, the Legislature adopted the latter approach—that “fair market
value” in the context of residential nonrental property subject to restrictive
housing-subsidy covenants is calculated with reference to what a willing
individual buyer would pay to purchase the property subject to the
applicable restrictions, considering what that buyer could realize from
reselling the property, and without regard to any potential value “held” by the
participating nonprofit organization or state agency.  Because the state
appraiser’s analysis in the Franks decision is at odds with this
approach, I would reverse.  The state appraiser’s reasoning in the Rockingham
decision is consistent with the above understanding, but I would remand this
case for further explanation of the rationale underlying the state appraiser’s
specific valuation.
I.
¶ 37.        
I begin with my reasons for concluding that the statute calls for a
determination of the actual price an individual buyer would pay to
acquire the property subject to the various restrictions, rather than the total
potential unrestricted value of the property reflected on the PTTR.  

¶ 38.        
The relevant statute equates “listed value” with the “appraisal value”
and provides that, with specified exceptions, “appraisal value” is the
property’s “fair market value.”  32 V.S.A. § 3481.  It,
in turn, defines “fair market value” as follows:
The estimated fair
market value of a property is the price which the property will bring in the
market when offered for sale and purchased by another, taking into
consideration all the elements of the availability of the property, its use
both potential and prospective, any functional deficiencies, and all other
elements such as age and condition which combine to give property a market
value.  Those elements shall include a consideration of a decrease in
value in nonrental residential property due to a housing subsidy covenant as
defined in section 610 of Title 27, or the effect of any state or local law or
regulation affecting the use of land . . . . 
Id.  The point of this directive is to make it clear that
fair market value—and thus appraisal value and ultimately listed value—is not
based on the amount a buyer would pay for the property unencumbered by
restrictions as to its use or resale but, rather, is based on the real-world
amount a buyer would pay a seller for the property given the applicable
restrictions.  The requirement that an assessor consider the effect of the
restrictions on value would make no sense if the touchstone of fair market
value was the amount a buyer would pay for a hypothetical identical property not
subject to such restrictions.  By definition, the restrictions would never
affect value understood in that way, and consideration of the effect of the
restrictions would be pointless.  See In re Jenness and Berrie,
2008 VT 117, ¶ 24, 185 Vt. 16, 968 A.2d 316 (“When possible we construe
statutes to avoid rendering one part mere surplusage, and we strive to read all
parts of the statutory scheme in harmony.” (citation omitted)).  The
Legislature’s indication that an appraisal should include “consideration” of
the restrictions thus not only requires that the restrictions be a factor in
determining “fair market value,” but also indicates that the “fair market
value” the Legislature has in mind is that applicable to the property with
the restrictions.
¶ 39.        
Moreover, the Legislature’s instruction that determination of fair
market value should include consideration of the housing-subsidy covenants does
not stand in isolation; the same provision requires consideration of “the
effect of any state or local law or regulation affecting the use of land,
including but not limited to chapter 151 of Title 10 or any land capability plan
established in furtherance or implementation thereof.”  32 V.S.A.
§ 3481.  The way one considers the effect of state land use
regulation on the fair market value of the property is to determine what a
willing buyer would pay to purchase the property subject to the applicable
regulations—not what a willing buyer would pay to purchase the property in the
absence of any such regulations.  It would be odd to acknowledge that the
“consideration” requirement in § 3481 requires that property subject to
development restrictions be valued at the price a buyer would pay to take the
property subject to those restrictions, but then to suggest that the same
“consideration” requirement has a different meaning with respect to the
housing-subsidy covenant restrictions.  Vermont Golf Ass’n, Inc. v. Dep’t of Taxes, 2012 VT 68,
¶ 30, 192 Vt. 224, 57 A.3d 707 (Robinson, J., concurring) (“In
order to determine the intent of the Legislature, we must examine and consider
fairly, not just isolated sentences or phrases, but the whole and every part of
the statute, . . . together with other statutes
standing . . . as parts of a unified statutory system.”
(quotation omitted)).  
¶ 40.        
I do not contend that the words of the statute on their face mandate
that the fair market value of covenant-restricted property “automatically” be
pegged at a level lower than the fair market value of otherwise identical
property not subject to the covenants (i.e., the amount listed on the
PTTR).  The impact of the covenant on the actual fair market value of the
property as compared to the fair market value of a hypothetical identical
unrestricted property will depend on the specific requirements of the covenant
in question as well as the prevailing market conditions.  I can imagine a
scenario in which the impact of a covenant on the actual fair market value of
the property might be modest—such as a falling housing market in which the
inability of a prospective purchaser to capture all of the future appreciation
in a property does not substantially suppress the price that a buyer would be
willing to pay for property subject to minor resale restrictions.  But the
statute does reflect a recognition that in the vast majority of cases, a buyer
would pay less for a property that is subject to legal restrictions—whether
they be on use, development, or resale—than for an identical property without
such restrictions.  The statute does not require an “automatic” reduction
in the value of property subject to the covenants relative to the unrestricted
value reflected on the PTTR, but the individualized consideration required by
the statute will necessarily lead to some reduction in value in the
overwhelming majority of cases.
¶ 41.        
This interpretation not only best matches the language and structure of
§ 3481, it also best promotes the goals of Vermont’s statutory
scheme.  Am. Museum of Fly Fishing, Inc. v. Town of Manchester, 151
Vt. 103, 108, 557 A.2d 900, 903 (1989) (“In interpreting a statute, legislative
intent should be gathered from a consideration of the whole and every part of
the statute, the subject matter, the effects and consequences, and the reason
and spirit of the law.” (quotation omitted)).  The Legislature created the
Vermont Housing and Conservation Trust Fund, administered by the Vermont Housing
and Conservation Board (VHCB) for the express purpose, among others, of
encouraging and assisting in creating affordable housing.  10 V.S.A.
§ 302(b).  In fulfilling its statutory mandate, the VHCB makes grants
to entities dedicated to creating or retaining affordable housing for lower
income Vermonters, provided the bylaws of those entities require that such
housing be maintained as affordable housing on a perpetual basis.  10
V.S.A. §§ 303(3)(A), 303(4), 321(a)(1).  Also in furtherance of its
policy promoting affordable housing, the Legislature passed a statute allowing
for “housing subsidy covenants” to encourage the development and continued
availability of affordable rental and owner-occupied housing for low- and
moderate-income people.  27 V.S.A. § 610.  The statute allows
for the creation of a housing-subsidy covenant as a condition of, among other
things, a grant, loan or contract made by a nonprofit corporation or state
agency.  Id.  The restrictions built into the covenant may
include without limitation restrictions on use, resale price, tenant income and
rents, and restrictions on the income of a purchaser of a housing unit for his
or her own residence.  Id.  This statute, designed to promote
affordable housing, is, in turn, incorporated by reference into the statute
governing property taxes that directs that fair market value be determined with
consideration of the impact of such restrictions on the amount a buyer would
pay.  32 V.S.A. § 3481.  We must understand the instruction in
§ 3481 to “consider” the effect of restrictive covenants with reference to
the Legislature’s expressed goal of promoting affordable housing.
¶ 42.        
If the hypothetical unrestricted value of a property were the benchmark
for assessing property taxes, rather than the property’s actual value to a
prospective purchaser given the restrictions on the property, a low-income
person who qualifies for and purchases a covenant-restricted home pursuant to a
housing subsidy could nonetheless be required to pay property taxes as if that
person had purchased an otherwise identical unrestricted property on the open
market.  That taxpayer would be required to pay taxes at a level
commensurate with a property that the low-income, housing-subsidy-eligible
taxpayer presumably could not have afforded in the first place.  That does
not make sense.  If a person can be subsidized into an affordable home,
but taxed out of it when the first property tax bill comes, then the promise of
the housing subsidy programs authorized by the Legislature is chimeric. 
See Shlansky v. City of Burlington, 2010 VT 90,
¶ 8, 188 Vt. 470, 13 A.3d 1075 (“In looking to the statutory
language as an expression of legislative intent, we presume the Legislature
intended an interpretation that furthers fair, rational consequences, and not
one that would lead to absurd or irrational consequences.” (quotation and
alterations omitted)). 
¶ 43.        
I realize that this means that a quantum of the otherwise-taxable value
of a property disappears from the tax rolls when an unrestricted property is
subjected to a statutorily compliant affordable housing covenant, and that
fellow taxpayers in a town with covenant-restricted affordable housing thus
shoulder a higher share of the cost of local government.  Ante,
¶ 12.  That is true, but unremarkable.  The Legislature makes
policy judgments all the time that affect the way a town can tax property, and
thus impact the tax liability of other local taxpayers.  For instance, the
Legislature exempts from property taxation most property owned by the state and
federal governments, chartered veterans organizations, YMCAs and YWCAs, and
animal welfare organizations.  32 V.S.A. § 3802(1), (2), (6),
(15).  It exempts from property taxation real estate used for public,
pious or charitable uses, college fraternity houses, cemeteries, the grounds of
annual agricultural fairs, qualifying property dedicated to water pollution
abatement, qualifying health centers and certain solar power plants.  Id.
§ 3802(4), (5), (7), (9), (12), (16), (17).  And it has expressly
exempted certain disabled veterans and their families from paying property tax
on $10,000 of the appraisal value of their homes.  Id.
§ 3802(11).  
¶ 44.        
In all of these cases, the Legislature has concluded that the public interest
warrants limiting the property taxes a town can collect from certain property
owners, thereby forcing municipalities to socialize more of the costs of local
government among other property tax payers.  The Appellate Division of the
New Jersey Superior Court likewise recognized the public benefit of affordable
housing legislation in concluding that the taxable fair market value of
affordable housing subject to resale restrictions should be determined on the
basis of the value of the property subject to the deed restriction.  Prowitz
v. Ridgefield Park Vill., 568 A.2d 114 (N.J. Super. Ct. App. Div.
1989).  The court in that case explained:
The
deed restriction limiting resale price constitutes a patent burden on the value
of the property, not on the character, quality or extent of title. It is,
moreover, a restriction whose burden on the owner is clearly designed to secure
a public benefit of overriding social and economic importance, namely, the
maintenance of this State’s woefully inadequate inventory of affordable
housing.
 
Id. at 118.  In short,
the notion that home-ownership by low-income Vermonters is at least as worthy a
public good as college fraternities and county field day celebrations is not
jarring.  
¶ 45.        
Moreover, the Legislature has enacted restrictions on development
throughout the state that affect the value of property subject to those
restrictions while promoting a perceived public good.  A regulated
property is appraised at its fair market value subject to whatever restrictions
apply, rather than the amount a seller would pay on the open market for
otherwise identical property not subject to such restrictions, 32 V.S.A.
§ 3481(1), so a town realizes less tax revenue from that property than it
would have in the absence of the regulations, and other taxpayers in the town
pay more than they otherwise would have.  Diminution in the taxable value
of property resulting from state regulation is by no means unique to the
affordable housing setting. 
¶ 46.        
My understanding of the statute is also consistent with the way it
applies to subsidized rental housing.  Prior to 2005, the statutory
section that requires consideration of qualifying housing-subsidy covenants on
residential property lumped together restrictions applicable to rental and
nonrental properties, requiring “consideration” of those restrictions in
valuing either kind of property.  32 V.S.A. § 3481(1) (2004) (amended
2005).  In an unpublished and nonprecedential 2002 entry order, a
three-Justice panel of this Court reversed an appraisal based on an
income-capitalization approach that assumed market rents were unobtainable in
light of the applicable statutory restrictions.  The panel concluded that
the statutory requirement that the appraisal include a consideration of a
decrease in value due to a housing-subsidy covenant precluded the appraiser
from relying on actual market rents and required, instead, consideration of
rents actually obtainable in light of the covenants.  Laterre House
Ltd. P’ship v. Town of Wilmington, No. 2001-341, 2002 WL 34423628, at *3
(Vt. Mar. 27, 2002) (unpub. mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx.  The panel was
right in 2002, and the logic of its decision applies with just as much force in
the context of nonrental residential property.  As with rental property,
the valuation of nonrental residential property subject to housing-subsidy
covenants must be determined with reference to the proceeds a prospective buyer
could actually receive upon resale of the property in light of the covenants,
not based on the fair market value of a hypothetical, otherwise identical piece
of unrestricted property.[7] 

¶ 47.        
The position of the Division of Property Valuation and Review (PVR) of
the Department of Taxes reinforces my conclusion.  The Legislature has
assigned PVR responsibility for providing technical assistance and instruction
to the listers in a uniform appraisal system, and assisting municipalities in
the administration of property taxes, including the appraisal of classes of
property difficult to appraise.  32 V.S.A. § 3411(5), (10). 
Pursuant to this authority, the director of PVR issued a memorandum to Boards
of Listers in November 2008 providing guidance concerning valuation of
owner-occupied homes subject to resale restrictions as defined in 27 V.S.A.
§ 610.  While this appeal was pending, on January 3, 2012, the
Commissioner of the Department of Taxes issued a technical bulletin signed by
the director of PVR and the Commissioner that incorporates the analysis of the
November 2008 memorandum.  Far from contradicting the requirements of the
statute, the memorandum and bulletin reinforce that the statute here requires
town listers to determine the value of property subject to housing-subsidy
covenants with reference to what a purchaser would actually pay for the
property with the restrictions.
¶ 48.        
I am not taking issue with the majority’s conclusion that the PVR
memorandum does not compel the use of PVR’s recommended methodology for valuing
the property here to the exclusion of any other approach.  Ante,
¶¶ 18-19.  But the memorandum and the Commissioner’s position have
broader significance.  The PVR memorandum offers a specific mechanism for
valuing properties subject to housing-subsidy covenants, but the core message
of the memorandum is more general:  Listers should value properties
subject to resale restrictions based on their restricted value and not their
fair market value without regard to the restrictions.  In the end, this
Court is the arbiter of questions of law.  However, PVR’s interpretation
of the requirements of the tax statute is entitled to the same deference we
afford other agency interpretations of statutes within their purview.  See
Mollica v. Div. of Prop. Valuation & Review, 2008 VT 60, ¶¶ 9,
11, 184 Vt. 83, 955 A.2d 1171 (we generally defer to administrative agencies
interpreting statutes within their legislatively delegated expertise, though
our “paramount concern” is construing a statute consistent with its express
purpose).
¶ 49.        
This understanding of the proper application of 32 V.S.A. § 3481 is
consistent with our application of the statute in other contexts.  In the
case of Townsend v. Town of Middlebury, 134 Vt. 438, 365 A.2d 515
(1976), this Court considered the impact of a renewable lease and a preemptive
purchase option on a property’s fair market value for property tax purposes.
 Noting that § 3481 requires consideration of laws affecting the use
of a property in determining the property’s value, this Court concluded that
“the Legislature intended that bona fide restraints affecting property, at
least those governmental in origin, should be a factor in determining fair
market value.”  Id. at 440, 365 A.2d at 516.  The Court
extended the principle to include restraints in favor of a nongovernmental
entity arising from private dealings—a renewable lease and a preemptive
purchase option—on the ground that all of the elements affecting the
availability of the property and its use combine to give property a market
value.  Id.  The Court concluded that it was “obvious” that
the lease/option affected the market value of the property because:
[a]
buyer, confronted with the presence of a lease/option involving a parcel of
property which [the buyer] was interested in purchasing, would certainly take
such agreement into account in determining what price [the buyer] would find
acceptable for the parcel desired since any such agreement would affect both
the use and future alienability of the property.
 
Id.  Accordingly, we
concluded that the property should be valued at the price a willing buyer would
pay to purchase it subject to the relevant restrictions.  Id. 

¶ 50.        
For all of these reasons, I believe the statute requires that the
touchstone for valuing property subject to a housing-subsidy covenant is the
amount an individual buyer would pay to purchase the property subject to the
various restrictions that apply, and is not the total unrestricted value the
property would have in the absence of the covenant.
II.
¶ 51.        
The majority does not expressly hold otherwise,[8] and does not squarely address what I
believe to be the central legal issue in this case.  Instead, it weighs
the competing arguments on the question of fair market value as if they were
evidence about a question of fact, without isolating and independently
addressing the threshold legal question that should drive the factual
analysis.  Lurking silently within the “evidence” and findings the
majority relies upon as supporting the state appraiser’s conclusion in the Franks
case, as well as in the failings the Court points to in the state appraiser’s
analysis in the Rockingham case, is an unspoken conclusion that the unrestricted
market value is the guiding star in valuating the property at issue in these
cases.
A.
Franks 
¶ 52.        
In the Franks case, the majority recounts the testimony
supporting the state appraiser’s decision.  The majority notes that the
Essex town assessor found no evidence that the covenant reduced “the value of
the property.”  Ante, ¶ 24.  But the majority also
rightly acknowledges that the same witness took the position that the covenant
dictates the option price at which the owner must sell the property back to
Champlain Housing Trust (CHT), and the amount of equity the owner may realize
upon sale, but did not affect the “value” of the property.  Id. 
The town assessor’s conclusion that the covenant does not impact value rests
entirely on his position that the total, hypothetical, unrestricted value of
the property is what is legally relevant in the determination of “value,” as
opposed to the amount of equity a particular owner (and thus a prospective
buyer) might realize on resale.  Likewise, the same town assessor used
“comparable sales” to establish that the covenants did not impact the value of
the property.  But the “comparable sales” data he used relied on the
prices reflected on the PTTR—the figure reflecting the hypothetical, unrestricted
value of the property to a willing buyer.  Again, the weight of this
“evidence” depends entirely on the validity of the legal assumption on which
the town assessor based his conclusion.
¶ 53.        
The majority cites a real estate appraiser who similarly testified that
the covenants do not decrease the value of the property.  Ante, ¶
25.  As the majority says, this expert testified that the restricted
price is not arrived at by way of an arms-length transaction because it is
the result of a contractual arrangement between the owner and housing trust,
and although the covenants affect the net amount sellers receive when they sell
the property, the subsidy provided by the housing trust does not actually
reduce the property’s value.  Id.  Again, this expert clearly
views the operative value as the unrestricted fair market value, not the value
that an individual would pay to purchase the property subject to the resale
restrictions and limitations on equity realized.  The relevance of his
testimony depends on the soundness of his legal assertion.
¶ 54.        
The majority describes the testimony of a different town assessor who
likened the covenants in the Franks case to “back end loaded mortgages,”
and testified that his town does not adjust the value of property based on the
amount of outstanding liabilities, presumably including mortgages, on the
property.  This testimony similarly rests on a legal conclusion that the
relevant value is the whole value of the unrestricted property—not simply the
owner’s “equity.”[9] 

¶ 55.        
Finally, the majority notes that taxpayer failed to present
comparable-sales market evidence to show that the covenant reduced fair market
value.  If my understanding of the law is right, the concept of relying on
comparable-sales data makes no sense—especially if the “sales price” of the
comparable sales is the unrestricted value reflected on the PTTR.  By
definition, as noted by the majority, the property purchases in these cases are
not arms-length, market transactions.  The actual price an individual pays
to buy a home—and the return the individual can potentially receive on
resale—are largely a function of the CHT grant associated with the
property.  The larger the grant, the lower a buyer’s cost to purchase the
property and the lower a buyer’s potential proceeds upon resale.  It is
difficult to imagine how one could construct a meaningful “comparables”
analysis in this context.  That is no doubt why the methodology suggested
by PVR focuses on the buyer’s actual net purchase price, or net purchase price
plus twenty-five percent of the appreciation, as the marker of fair market
value.
¶ 56.        
That the state appraiser equated fair market value with the property’s
hypothetical unrestricted value is clear from the numbers.  Franks paid
$81,250 to purchase her property in 2003.  At the time, the unrestricted
value of the property was $130,000.  The unrestricted value of the
property had risen to $173,900 in 2010—representing an increase in the
hypothetical, unrestricted value by $43,900.  If Franks sought to sell the
property, she would be required to sell to CHT for an option price, which,
assuming she had not made any significant capital improvements, would be
$92,225 (($130,000 less $48,750 in grants) plus .25($43,900)).  The state
appraiser has concluded that a willing buyer would pay $173,900 for property
that taxpayer could not sell for more than $92,225.  He was obviously
considering the unrestricted value of the property in ascertaining fair market
value.  That a buyer would not pay anything close to $173,900 to purchase
property that could be resold for no more than $92,225 seems
self-evident.  See Townsend, 134 Vt. at 440, 365 A.2d at 517 (buyer
considering parcel subject to lease/option “would certainly take such agreement
into account” in determining an acceptable price for the parcel desired “since
any such agreement would affect both the use and future alienability of the
property.”)
¶ 57.        
In sum, the state appraiser’s conclusion in Franks does not
represent a weighing of the evidence warranting the deference this Court
affords to the state appraiser’s findings of fact; rather, it reflects a legal
determination about the definition of fair market value in the context of
resale restrictions incident to affordable housing programs.  Because I
conclude that the legal standard applied by the state appraiser was wrong, I
would reverse the state appraiser’s decision and remand for a determination of
what a willing buyer would pay to buy the property subject to the various
resale restrictions, including the restriction on the equity a buyer could
recover from the property upon resale.  
B.
Rockingham Area Community Land Trust 
¶ 58.        
 In the Rockingham case, the majority is not so deferential
to the state appraiser’s determination of fair market value, rejecting the
state appraiser’s determination because the taxpayer had failed to produce
evidence of comparable sales.  Ante, ¶ 33.  For the reasons
noted above, the concept of “comparable sales” is not that helpful in the
unique circumstance of property subject to restrictive housing-subsidy
covenants.
¶ 59.        
The state appraiser in the Rockingham case thoroughly reviewed
the testimony of the various parties and commonsensically concluded that the
housing-subsidy covenant “removes one of the bundle[s] of rights an owner has
or prospective buyer should consider before purchasing a property.”  Given
the Legislature’s express instruction that fair market value be ascertained
with consideration of the impact of the housing-subsidy covenant restrictions,
32 V.S.A. § 3481, he reasonably concluded that the Town’s assessed value
did not comply with the statute.  He rejected the Town’s legal analysis,
explaining that “while the full value of the property may well continue to be
represented by the buyer’s investment plus the grant . . . the
legislation evinces a clear intent to remove a portion of the value that would
otherwise be taxable from the appraisal value in order to advance a separate legislative
goal favoring affordability of housing.”  I find the state appraiser’s
legal analysis in the Rockingham case spot-on.
¶ 60.        
As in the Franks case, the numbers clearly make this point. 
If Margaret wanted to sell her property, assuming she made no capital
improvements, she could not sell in the first instance for more than $108,350,
calculated as follows:
  $121,200
      (unrestricted value when she bought it) 
- $18,500
        (grant from the land trust and
appreciation during the prior owner’s tenure)
+$5,650
          (twenty-five percent of
appreciation of unrestricted value based on Board of Civil Authority’s
valuation)
 
Given these figures, no reasonable
buyer would pay $143,800 to step into her shoes.  The state appraiser’s
conclusion that the actual fair market value of the property was accordingly
substantially lower than the unrestricted value asserted by the Town of
Rockingham jibes with the evidence.
¶ 61.        
I agree with the majority that the state appraiser’s rationale for
designating $118,000 as the value of the property is not entirely clear. 
That the state appraiser’s 2010 appraisal is identical to the 2009 appraised
value is clear.  The reason the state appraiser adopted the 2009 appraisal
values for the property is not clear.  I would remand to the state
appraiser to explain the basis for adopting the 2009 appraised value for 2010,
or for further proceedings.

 
III.
¶ 62.        
This is a straightforward case of statutory interpretation.  The
majority has taken its best shot at discerning the proper application of
Vermont’s statutory scheme regarding taxation of property subject to
restrictive housing-subsidy covenants.  For the reasons noted above, I
disagree with its conclusions.  The good news is that the ultimate power
to determine how properties like the ones in this case are appraised remains
with the Legislature.  If the majority got it right, the Legislature can
be satisfied with this decision.  If the majority’s understanding of the
statutory scheme does not jibe with the Legislature’s intent, the Legislature
can amend the statute to make its intentions more clear.

 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 





[1]
 Section 3481 of Title 32 provides in relevant part: “Those elements [that combine to give
property a market value] shall include a consideration of a decrease in value
in nonrental residential property due to a housing subsidy covenant as defined
in section 610 of Title 27 . . . .”  32 V.S.A.
§ 3481(1).
 


[2]
 We note also that the Legislature knows how to mandate a specific method
of appraisal if it wishes to do so.  “We have repeatedly held that when
the Legislature wishes to achieve
a particular result, and shows that it knows how to do so,
the failure to do so in a particular case will be respected.”  Congdon
v. Taggart Bros., Inc., 153 Vt. 324, 326-27, 571 A.2d 656, 658
(1989).  In the statute, the Legislature has laid out a method for
determining fair market value of residential rental property, mandating that
“fair market value shall be determined by an income approach using” market
rents with utility allowance adjustments, actual expenses incurred with respect
to the property, a vacancy rate that is fifty percent of the market vacancy
rate, and a capitalization rate that is typical for the geographic area. 
32 V.S.A. § 3481(1)(A)-(D).  By contrast, regarding nonrental
residential property, the Legislature chose the phrase “[t]hose elements [that
combine to give property a market value] shall include a consideration of a
decrease in value . . . due to a housing subsidy
covenant.”  Id. § 3481(1).  
 


[3]
 Franks argues for the first time on appeal that
the state appraiser’s interpretation of § 3481 violates the
Proportional Contribution Clause of the Vermont Constitution because similarly
situated taxpayers would be treated arbitrarily and inequitably.  Taxpayer
did not raise this argument below, and we therefore do not address it on
appeal.  See Garilli v. Town of Waitsfield, 2008 VT 91, ¶ 7,
184 Vt. 594, 958 A.2d 1188 (mem.).
 


[4]
 The covenant was originally entered into with the Burlington Community
Land Trust, which merged with another group in 2006 to form CHT.
 


[5] 
Throughout this opinion, the option price is also referred to as the restricted
value of the property, while the price paid as reflected on the Property
Transfer Tax Return (PTTR) is referred to as the unrestricted value.


[6] 
On January 3, 2012, a technical bulletin was issued by the Vermont Department
of Taxes.  The technical bulletin, like the PVR memorandum, “outlines a
uniform approach that local listers can employ for determining the
listed value of owner-occupied homes subject resale restrictions as defined in
27 V.S.A. § 610” (emphasis added).  Because the bulletin was issued
after the hearing and issuance of the state appraiser’s decision, we do not
consider it on appeal. 


[7] 
The majority points to specific language in the statute added in 2005 that sets
forth a methodology for valuing residential rental property subject to housing
subsidy covenants.  Ante, ¶ 12 n.2.  The majority points
to this language as evidence that the Legislature could have, but did not,
adopt a specific required methodology for valuing nonrental residential
property.  Id.  I do not disagree with that general
conclusion.  By providing a methodology for valuing rental residential
property subject to housing-subsidy covenants that takes into account the rents
realizable pursuant to those covenants—incorporating by reference the U.S.
Department of Housing and Urban Development’s market value figures—the
language, as revised, also reinforces the understanding that the statute calls
for valuation of property with reference to the value a prospective purchaser
could actually realize from the property rather than the hypothetical value of
otherwise identical unrestricted property.


[8] 
The majority’s discussion distinguishing the New Jersey Superior Court
Appellate Division’s opinion in Prowitz and suggesting that taxpayers
here seek to shift a disproportionate tax burden to fellow taxpayers suggests
that the majority believes that the unrestricted value of the properties
at issue in these cases determines fair market value, but the majority does not
expressly say so.  Ante, ¶¶ 11-12.


[9] 
The analogy also fails to acknowledge the critical distinction between a
mortgage encumbering property and the arrangement at issue here:  The
Vermont Legislature has not passed a statute requiring that an appraisal for
property tax purposes take into account the indebtedness encumbering real
property through a mortgage securing a debt, but has specifically
required consideration of the housing subsidy covenants.  32 V.S.A.
§ 3481.  Though the subsidy in the Franks case may function
financially in a way that is analogous to a mortgage, the distinct arrangements
are apples and oranges with respect to the laws governing property valuation.



