                              No.    90-491

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1991



RICHARD J. LINGSCHEIT,
            Plaintiff and Appellant,
     -vs-
CASCADE COUNTY, a body politic, RICHARD J. MICHELOTTI and MONTANA
DEPARTMENT OF REVENUE,
            Defendants and Respondents.



APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                Robert P. Goff argued; Church, ~arris,Johnson        &
                Williams, Great Falls, Montana.
            For Respondent:
                Geralyn Driscoll argued; Department of Revenue,
                Helena, Montana.



                                              Submitted: June 18, 1991
                                               ~ecided: September 9, 1991
Filed:



                                Clerk
1    .
Justice R. C. McDonough delivered the Opinion of the Court.

     The plaintiff taxpayer, Richard J. Lingscheit appeals the
order of the Eighth Judicial District Court, Cascade County,
granting summary judgment to the defendants, Cascade County and the
Montana Department of Revenue and denying taxpayer's request for
a refund of allegedly overpaid property taxes. Taxpayer requested
a refund pursuant to 5 15-16-601, MCA.    The sole issue on appeal
is whether the District Court erred in granting summary judgment
to the defendants.   We affirm.
     The taxpayer is the former owner of the Holiday Inn motel in
Great Falls, Montana. The property was appraised by the Department
of Revenue (DOR) at $2,496,924 during the taxpayer's ownership.
In 1986 and 1987, the Cascade County Commissioners levied taxes on
the property based on that appraised value.      Taxpayer paid the
taxes based on that appraisal for those years without protest.
     Taxpayer sold the real property on November 24, 1987. The new
owner protested the appraised value for the 1988 taxable year and
sought relief from the Cascade County Tax Appeal Board.   A hearing
took place on July 28, 1988.
     At that hearing, the DORIS appraiser testified that    he had
not followed the guidelines set forth under The Marshall-Swift
Valuation Service Manual.      The appraiser stated that the DORIS
administrative regulation, A.R.M. 42.19.101(2) requires use of the
manual.   The manual requires an appraiser to use his independent
judgment when appraising property.    The appraiser also testified
that he did not appraise the property by that method; rather, he
utilized the DORIS policy statement 83-1, which includes appraisal
guidelines for franchises and provides a cost ranking of Holiday
Inns.
     In its order, the County Tax Appeal Board did not address
whether an incorrect appraisal method was used, but merely stated
that I1[t]he Board feels this property should be given an additional
20% reduction for Functional Obsoles~ence.~
     On September 29, 1988, following the issue of that order, the
taxpayer plaintiff petitioned for a tax refund for the years 1986
and 1987. The County Commissioners took no action on the petition.
On February 16, 1989, the taxpayer filed an action against the
county and its treasurer. The DOR intervened as a party defendant.
     On July 10, 1989, the DOR moved for summary judgment.           The
motion was briefed and argued on May 16, 1990 and on May 23, 1990
the District Court issued its order granting summary judgment in
favor of the defendants.    Taxpayer now appeals.
     The statute at the center of the issue here is       fj   15-16-601,
MCA, which provides in pertinent part:
     Any taxes, interest, penalties, or costs paid more than
     once or erroneously or illegally collected     ...
                                                     w , by
     order of the board of county commissioners, be refunded
     by the county treasurer.
Section 15-16-601, MCA.    Taxpayer asserts that the relief afforded
by the statute is available to him.     In his complaint he alleges
that due to the inconsistency between the policy incorporated by
the DOR in The Marshall-Swift Valuation Service Manual and the
DORIS internal policy statement 83-1, the taxes levied on his
former property were either illegally or erroneously collected.
     The taxpayer relies primarily on Christofferson v. Chouteau
County (1937), 105 Mont. 577, 74 P.2d 427; and Department of
Revenue v. Jarrett (1985), 216 Mont. 189, 700 P.2d 985, in support
of his position.         In Christofferson, the County erroneously
required the plaintiff to purchase a tax sale certificate when
purchasing a parcel of state land.       Several months prior, the
Commissioner of State Lands had directed the county treasurer to
cancel any assessments as well as unpaid taxes against the land.
The plaintiff requested a refund upon discovering that the land was
state land, the certificate of purchase had been cancelled, and he
could not have a tax deed.     This Court reversed the denial of the
refund, holding that the predecessor to 5 15-16-601, MCA, was
enacted to avoid the harsh voluntary payment common law rule in the
case of illegal and erroneous tax collections.      The former rule
provided that taxes voluntarily paid could not be recovered.
Christofferson, 74 P.2d at 431-32.
     In Jarrett, the DOR mistakenly appraised the taxpayer's lot
at $14,510.00 for 1978 through 1981 under the erroneous belief that
the lot was included in a special improvement district which
provided sewer facilities.       The lot was not located within the
district. DOR discovered the error in 1982 and reappraised the lot
at $7,418.00.   Taxpayer had paid the taxes for 1978 through 1981
without protest.   After the lower appraisal, the taxpayer filed a
claim   for a   refund    of the overpaid   taxes with   the County
omm missioners pursuant to 1 15-16-601, MCA.      The commissioners
denied his claim and he appealed to the County Tax Appeal Board.
The County Tax Appeal Board awarded the refund as did the State
Tax Appeal Board.     DOR sought judicial review, and the district
court affirmed the refund on summary judgment. This Court affirmed
the district court.    In Jarrett, we noted that 5 15-16-601, MCA,
was only available to a taxpayer who has no recourse under 5 15-
1-402, MCA, which provides for payment of taxes under protest and
an action to recover. Jarrett, 700 P.2d at 988, see also Montana
Bank of Roundup, N. A. v. Musselshell County Board of Commissioners
(Mont. 1991), 810 P.2d 1192, 1195, 48 St.Rep. 392, 394.    In this
case, the taxpayer argues that at the time in 1986 and 1987 when
he would have had to commence the remedy process under 1 15-1-402,
MCA, by filing an administrative appeal with the Cascade County Tax
Appeal Board, he did not know of the existence of the alleged
illegal or erroneous valuation.    The property no longer belonged
to him in 1988.
       In this case, we first note that the use of the word ggmayw
                                                                 in
the statute does not mandate that the county commissioners order
a refund in all cases of an erroneously or illegally collected tax.
The statute is permissive rather than mandatory.   See 5 15-16-601,
MCA.    Thus, once a legal determination is made that taxes were
erroneously or illegally collected, it is still within the
discretion of the Board of County Commissioners to decide if the
situation warrants a refund to the taxpayer. Hence, we review the
denial of the refund under the abuse of discretion standard.
       We conclude that the Board did not abuse its discretion in
denying the refund.     While the case is similar to Jarrett and
Christofferson, both Jarrett and Christofferson involved mistakes
in appraisals that were clerical in nature.       In both cases the
assessments at issue should never have been made.      In this case,
the taxpayer does not allege that the assessment should never have
been made; rather, he alleges an error in the methodology used by
the appraiser and    the DOR.       At   the hearing   on taxpayer's
successor~s refund, the     DORIS   appraiser gave     the   following
testimony:
      Q.   So you didn't use your own independent judgment in
           arriving at that cost ranking, is that correct?
     A.    No, I didnot.
     Q.    And you have no alternative but to assign a 3
           ranking to the property?
     A.    It was my feeling that I was obligated to use their
           grade level, yes.
The appraiser admitted that he used the DORIS cost ranking policy
rather than exercising his own independent judgment in appraising
the property. However, his testimony does indicate that he did use
his independent judgment in deciding that he was obligated to
follow the DORIS cost ranking. Thus, the alleged error here is not
clerical, it involves the exercise of the appraiser's judgment in
determining what method he should use.     Furthermore, in its order
reducing the taxes of the taxpayer's successor in interest, the
board did not find that an incorrect appraisal method was used, but
merely stated that "the Board feels this property should be given
an additional 20% reduction for Functional Obsole~cence.~Thus,
unlike Jarrett and Christofferson, it is not certain that the taxes
                                                         9


8




levied against the property during this taxpayer's ownership were
in fact excessive.
     The case of North Butte Mining Co. v. Silver Bow County
(1946), 118 Mont. 618, 169 P.2d 339, supports our decision in this
case.   There, the taxpayer sought refunds of net proceeds paid to
the County in 1942 and 1943.      The value of the net proceeds
reported in 1942 and 1943    had included a I1government bonus or
subsidy8I which in 1945 this Court held was not part of the net
proceeds of a mine.   The County denied the refunds and this Court
upheld the refusal stating that "[a] mistake in the valuation of
property resulting in an excessive tax is no ground of recovery
under a statute such as section 2222 [the predecessor of 5 15-16-
601, MCA]."   North Butte Mininq Co., 169 P.2d at 341.   This Court
further stated:
     It is our view that neither the levy, assessment nor the
     collection of the tax was wrongful or illegal.         To
     constitute a wrongful or illegal levy, assessment or
     collection there must have been unwarranted or illegal
     action on the part of the taxing officials. There is
     none such here. The only assessment and levy that could
     have been made under the facts contained in the statement
     furnished by the plaintiff was the assessment and levy
     which was made and the only proper tax to be collected
     from the statement furnished was that which was
     collected.
North Butte Mininq Co., 169 P.2d at 340.      Here the taxpayer's
allegations pertain strictly to the method used in appraising the

property, there is no evidence that if the appraiser had followed
the manual that a lower valuation would definitely have been
reached.   It is possible that use of his independent judgment may
have resulted in a higher appraisal.   The taxpayer each year was
provided notice that he had available the administrative appeal
procedures provided by 5 5 15-1-402, 15-7-102, and 15-15-102, MCA,
if he felt the valuation for any reason was not the fair market
value.   He failed to use these remedies. In light of this and the
discretion conferred by the statute to the County Commissioners,
we conclude that the commissioners did not abuse their discretion
in denying the refund.        This being strictly a legal question, the
District Court did not err in granting summary judgment to the DOR
and the County.      Rule 56(c), M.R.Civ.P.   The order of the District
Court is
     AFFIRMED.



We Concur:            H
                                                    & &
                                                     , d
                                                      Justice


             -   -

         Chief ~usticfl
                          I
                              --.




           Justices
 I




Justice John Conway Harrison, dissenting.


     I dissent.      I would find that this case is controlled by our
holding in Department of Revenue v. Jarrett (1985), 216 Mont. 189,
700 P.2d 985, where this Court interpreted S 15-16-601, MCA, in
favor of the taxpayer.      In Jarrett, the taxpayer alleged that a
portion of his taxes were erroneously collected from him.        Under
5 15-16-601, MCA, that taxpayer in Jarrett was entitled to recover
that portion of the tax based on the erroneous assessment which he
voluntarily paid in prior years.     Jarrett, 700 P.2d at 989.
     I would hold that under this Court's holding in Jarrett, and
the interpretation of 5 15-16-601, MCA, the taxpayer in the instant
case is entitled to the recourse provided under that code section.
Here the taxpayer did not own the subject property at the time he
learned that the erroneous or illegal taxes had been collected or
at the time he made claim for the recovery of those taxes.      Nor do
I find it significant to the decision that the taxpayer's successor
in interest and not the taxpayer made the appeal to the county
board through which the erroneous or illegal tax collection was
discovered.       I would further note that in this decision the
taxpayer has met the requirements in    5
                                        j   15-16-601, MCA, for illegal
or erroneously collected taxes.
     In an early case, ~hristoffersonv. Chouteau County (1937),
105 Mont. 577, 74 P.2d 427, the Court recognized that the remedy
created in    §   15-16-601, MCA, is an exception to the common law
"voluntary payment rule."     That rule does not and should not bar
the taxpayer from a remedy in this case.   As I view this section,
it provides a taxpayer a remedy for illegally or erroneously
collected taxes even though he or she voluntarily paid those taxes
when they became due and believed at the time that the taxes were
being lawfully and correctly collected.
     I would reverse the District Court's grant of summary judgment
and allow the taxpayer to present his case to the trier of fact for
a decision on the merits.
Justice Terry N. Trieweiler dissenting.
     I dissent from the opinion of the majority.
     This case was dismissed by summary judgment for the wrong
legal reasons.     The majority treats it as if it went to trial and
failed for lack of proof.
     In plaintiff's affidavit in opposition to the Department of
Revenue's motion for summary judgment, he pointed out that he owned
the property in question from January 1, 1986, through November 24,
1987, but that it was not until late 1987, after he could no longer
file an appeal under 5 15-1-402, MCA, that he learned about the
illegal and erroneous manner in which his property had been
appraised. In late 1987, he learned that the Department of Revenue
had issued Policy Statement 83-1 which resulted in an appraisal
precluding independent judgment of the appraiser, contrary to the
Marshall Swift Valuation Service Manual which had been adopted by
the Department of Revenue by administrative regulation, A.R.M.
42.19.101, as the acceptable method for appraising commercial
improvements.
     Upon learning about the irregularity and the method by which
his property had been appraised, plaintiff consulted his attorney,
who advised the party that had purchased plaintiff's property.
That party then brought an administrative appeal before the Cascade
County Tax Appeal Board, which resulted in a reduction of the
appraised value.
     George Tyner, the person who had appraised plaintiff's
prolperty, testified at the appeal hearing before the Cascade County
Tax: Appeal Board.      A partial transcript of his testimony was
prolvided to the District Court in opposition to the Department of
Revenue's    motion    for summary judgment, and   established the
following facts:
     Q.     Anyhow, in evaluating this property for the current
            appraisal cycle, you then were given a directive by
            Helena to rank it as a 3, is that correct?
     A.     Yes.
     Q.     Okay. So the Department of Revenue in Helena just
            arbitrarily saidthatthe particular franchise motel
            here will have a 3 regardless of what physical
            condition it's in, is that correct?
     A.     They put out the policy. I don't how they arrived
            at it; if it was arbitrary, if they did some market
            analysis, or what they did. I don't know. They
            didn't    ...
     Q.     But somebody in Helena   ....
     A.     Yes.
     Q-     ...  determined what the quality of this particular
            motel was here in Great Falls, is that a fair
            statement?
     A.     Yes.
     Q.     Did you personally determine it to be a 3?
     A.     No.
     Q.     You were simply told by Helena that it was 3?
     A.     Yes.
     Q.     So you didn't use your own independent judgment in
            arriving at that cost ranking, is that correct?
No.    I did not.
And you have no alternative but to assign a 3
ranking to the property?
It was my feeling that I was obligated to use their
grade level, yes.
Isn't use of the Marshall Valuation Service Manual
mandated by the Administrative Rules of the State
of Montana?
Yes.
And you're familiar with ...  Does not the Marshall
Valuation Service Manual require the use of
independent judgment in arriving at the value of the
subject property?
That's my interpretation of it, yes.
Is it a fair statement then that the Department of
Revenue has made no attempt to follow its own
guidelines in the Marshall Valuation Service which
requires an appraiser to use his own independent
judgment when you've arbitrarily taken the cost
classification from Helena?
I would say that's a fair statement.
That's contrary to the manual, isn't that correct?
Yes.
Prior to this policy statement coming out, I would
think that it's a fair statement that this office
in Great Falls exercised its own independent
judgment and found it to be a Class 2 building.
They may have. I don't know because I don't have
a grade entered.
At any rate, the DOR say in Helena to place it at
a Class 3 building, correct?
Yes.
Okay. How does Helena really know what the quality
of that building is?
     A.   I don1 know. I 'm assuming before they put out the
                t
          policy that they did some market analysis. I don't
          know if they did or not. I really don't know.
     Q.   If they did any market analysis, you don't know if
          it included the Great Falls property or not?
     A.   No, I don't.
     It is clear from Tynerls testimony that the taxes levied on
plaintiff's property were based upon a method of appraisal which
violated the Department of Revenue's own administrative rules. The
method of assessment was, therefore, erroneous and illegal, and the
County Tax Appeal Board found that the assessment which resulted from
that method of appraisal was excessive.
     Plaintiff was not in possession of this information within the
time allowed for filing appeals under 1 15-1-402, MCA.        Therefore,
his situation is exactly the kind of situation for which 1 15-16-601,
MCA, was intended.
     Section 15-16-601, MCA, provides in relevant part that:
     (1) (a)   Any taxes     . . . erroneously or illegally
     collected  . . . may, by order of the board of county
     commissioners, be refunded by the county treasurer.
     In DepartmentofRevenuev. Jarrett (1985), 216 Mont. 189, 700 P.2d 985,

the issue was simply whether the value of property can be changed for
past tax years pursuant to 1 15-8-601, MCA, when a taxpayer has not
filed any administrative appeals as to those tax years. We held that
it could. In disposing of the Department of Revenue's argument that
the taxpayer was barred under 8 15-8-601, MCA, by failing to have
availed himself of the appeal process under 1 15-1-402, MCA, we
stated:
     This statute is permissive not mandatory. Ataxpayer can
     only use this protest procedure if he is aware that his
     taxes may be incorrect at the time he pays them.        A
     taxpayer who does not know he is being overtaxed will not
     pay his taxes under protest and can not receive a refund
     under section 15-1-402, MCA.


     Section 15-16-601, MCA, provides the necessary relief for
     respondent.


     Clearly, section 15-16-601, MCA, was not meant to be used
     in lieu of the section 15-1-402, MCA, requirements of
     paying under protest, but when the recourse of section
     15-1-402, MCA, is not available, a taxpayer can obtain
     a refund under section 15-16-601, MCA.

J r e t 216 Mont. at 192-94, 700 P.2d at 987-88.
 art,

     Furthermore, even though the relief provided for by 1 15-16-601,
MCA , is discretionary, this Court found that the discretion           the
county commissioners can be abused, and so held on appeal.             We
stated:
     Section 15-16-601, MCA, provides that taxes paid
     erroneously may be refunded by the county treasurer, "by
     order o the board o county commhsioners." The Yellowstone Board
            f           f
     of County Commissioners denied respondent's request for
     a tax refund.         However, respondent has followed the
     proper procedure for appealing that decision.


     The Yellowstone County Tax Appeal Board properly reviewed
     the respondent's case and determined respondent was due
     a refund.
      . . .  The state board found an erroneous appraisal
     resulted in a mistaken levy. This finding was contrary
     tothe finding ofthe county commissioners. The evidence
     was in dispute and the finding could go either way.


     It is the opinion of the Court that under section
     15-16-601, MCA, respondent should receive a tax refund
     for the erroneous assessment made on his land in 1978
     through 1981. We remand to the Yellowstone Board of
     County Commissioners with instructions to order the
     Yellowstone County Treasurer to issue a refund to
     respondent.
J r e t 216 Mont. at 194-95, 700 P.2d at 988-989.
 art,

     In spite of the majority's efforts, the circumstances in J r e t
                                                               art

are indistinguishable from the circumstances in this case. In J r e t
                                                               art,

the taxpayer's land was erroneously appraised based on inaccurate
factual information.      In this case, the taxpayer's land was
erroneously and illegally appraised, based upon an improper method
of   appraisal which   was   based   upon   arbitrary   and   inaccurate
information about its true value.    In both cases, the taxpayer was
unaware of the error or irregularity until after the time had expired
for filing appeals under S 15-1-402, MCA. Therefore, in neither case
could the taxpayer avail himself of the administrative appeal
process.
     The majority emphasizes that the statute relied upon by
plaintiff uses the word         and is therefore permissive, rather
than mandatory. However, the permissive language in the statute did
not prevent this Court from reversing a decision of the county
commissioners in J r e t when its discretion was found to have been
                  art

abused.
     Furthermore, the County Commissioners in this case failed to
exercise the discretion which 5 15-16-601, MCA, requires that they
exercise.    The plaintiff filed a verified petition for a refund of
taxes with the County Commissioners on September 29, 1988.       As of
February 16, 1989, five and one-half months later, the County
Commissioners had taken no action on the plaintiff's petition.
     On February 16, 1989, plaintiff filed a complaint in the
District Court for review of the commissioners1 inaction. However,
the District Court did not review the commissioners1 inaction to
determine whether its discretion had been abused. The District Court
erroneously dismissed plaintiff's complaint by summary judgment based
upon its erroneous conclusions about the applicability of the J r e t
                                                               art

decision to this case.    The District Court concluded that J r e t was
                                                             art

inapplicable for the following reasons:
     1.     In J r e t the Department of Revenue discovered its own
                art,

error;
     2.      In J r e t the same person owned the property at the time
                 art,

the error was made and at the time it was discovered; and
     3.     The person who succeeded plaintiff as the owner of the
property in this case paid under protest and appealed to the County
Tax Appeal Board.
      None of the factual distinctions relied upon by the District
Court were in any way material to this Court's decision in Jarrett.

      The County Commissioners gave no reasons for not granting
plaintiff's petition, and the District Court failed to review the
County Commissioners1 inaction to determine whether they abused their
discretion. Therefore, the fact that 5 15-16-601, MCA, is permissive
is irrelevant to our review of this case.     How can we conclude that
the board did not abuse its discretion when the board never exercised
its discretion and we have absolutely no record from which to
determine how it arrived at its decision to ignore plaintiff's
petition? We do not even have any basis to conclude that it decided
to ignore plaintiff's petition.         For all we know, and for all
plaintiff knows, the petition could have been lost on a clerk's desk
and the commissioners may have never seen it.
      The majority tries to distinguish Jarrett on the ground that the

mistake in that case was clerical in nature and resulted in an
assessment which should never have been made.     However, that is not
correct.   There was ultimately a correct appraisal from which a tax
was levied. The problem with the original appraisal was simply that
it was "erroneo~s.~
      The basis of plaintiff's claim in this case is that when the
appraiser failed to use his own independent judgment while appraising
his   property,   he   violated   the   regulations, rules,   and   laws
established by the Department of Revenue.     Therefore, the appraisal
was illegal and the tax levied pursuant to that appraisal was illegal
and erroneous. The majority's effort to ignore that undisputed fact
is at best a classic example of sophistic reasoning.        The majority
states:
     The appraiser admitted that he used the DORIS cost
     ranking policy rather than exercising his own independent
     judgment in appraising the property.        However, his
     testimony does indicate that he did use his independent
     judgment in deciding that he was obligated to follow the
     DORIS cost ranking. Thus, the alleged error here is not
     clerical, it involves the exercise of the appraiser's
     judgment in determining what method he should use.
     In other words, what Tyner did was okay because he used his own
judgment in deciding not to exercise his own judgment.
     Next, the majority concludes that w[t]hus, unlike Jarrett and
Christofferson, it is not certain that the taxes levied against the
property during this taxpayer's ownership were in fact excessi~e.~~
     Of course, it is not clear that they were excessive.          We can
presume that they were excessive by the mere fact that the County
Tax Appeal Board reduced them by 20 percent when they were appealed.
However, we cannot know they were excessive because plaintiff was
denied an opportunity to prove what the results would have been had
the correct appraisal method been used when his claim was dismissed
by summary judgment for the wrong legal reasons.
     Finally, this Court relies on its previous decision in N r h Butte
                                                             ot

Mining Co. v Silver Bow County (1946), 118 Mont. 618, 169 P.2d
           .                                                         339.

However, the facts on which that decision was based are in no way
similar to the facts in this case. In N r h B t e Mining Co., plaintiff Is
                                       ot ut
net proceeds taxes were computed by the State Board of Equalization
based upon figures submitted by plaintiff.            The plaintiff's figures
included government bonuses or subsidies which should not have been
included. This Court found that any error in that case was a direct
result of actions by the taxpayer and not by the government.              That
was the basis for our decision that        !j   2222, R.C.M.   (predecessor to
!j   15-16-601, MCA) , was inapplicable.        We stated:
       To constitute a wrongful or illegal levy, assessment or
       collection there must have been unwarranted or illegal
       action on the part of the taxing officials. There is
       none such here. The only assessment and levy that could
       have been made under the facts contained in the statement
       furnished by plaintiff was the assessment and levy which
       was made and the only proper tax to be collected from the
       statement furnished was that which was collected.


       Since the statute does not authorize the refund of taxes
       voluntarily paid throuqh mistake of law on the part of
       the taxgaver, plaintiff's claim was properly disallowed
       by the county.
North Butte Mining Co., 118 Mont. at 620, 622, 169 P.2d at 340, 341

(emphasis added).
       In this case, unlike N r h Butte Mining Co., the error or illegality
                             ot

complained of was committed by the State's appraiser. The plaintiff
had nothing to do with the conduct complained of.              Therefore, N r h
                                                                           ot

Butte Mining Co. has nothing to do with the facts in this case.

       For these reasons, I would          find that, while the County
Commissioners have some discretion under         !
                                                 j   15-16-601, MCA, they have
abused that discretion by failing to act in any way. I would reverse
the District Court and remand this case to the Board of County
Commissioners for Cascade County with instructions to properly
consider plaintiff's petition, and either grant it, or in the event
that it is denied, to set forth proper findings and conclusions which
form the basis for its denial so that that decision can be properly
reviewed by the District Court.
