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

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

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

Michael Garbitelli

Plaintiff

v.

Town of Brookfield

Defendant

Decision re: Complaint for Review of Governmental A ction

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

Mr. Garbitelli owns real property in Brookfield. During the 2007 town-wide reappraisal, he refused to permit the town listers to inspect the property, and the town subsequently valued his property at more than $1.6 million dollars. Mr. Garbitelli appealed the assessment, but the appeal was dismiss ed after Mr. Garbitelli refused to permit the state appraiser to inspect anything othe r than the foyer and the basement. In affirming the dismissal of the appeal, the Vermont Supreme Court explained that the limited inspection allowed by Mr. Garbitelli was “n ot enough to provide the state appraiser with evidence sufficient to overcome the presumption” in favor of the town’s

assessment. Garbitelli v. Town of Brookfield , 2009 VT 109, ¶ 11, 186 Vt. 648 (mem.).

Mr. Garbitelli then filed another grievance in 200 9, but this time permitted the town listers to inspect the property. After inspec tion, the listers reduced the fair market value to $957,000. Mr. Garbitelli then sought a he aring before the town board of abatement to request a reduction in taxes for 2007 and 2008 based upon the new valuation. He argued that the reduced valuation sh owed that the 2007 valuation was clearly “a manifest error or a mistake of the liste rs.” 24 V.S.A. § 1535(a)(4).

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

valuations.

Mr. Garbitelli now seeks judicial review of the boa rd’s decision under V.R.C.P. 75. He argues that the board’s decision was arbitr ary and capricious, and that it was error for the board to treat the disparity in assessments as “self-inflicted.” He asks this court to2

find a mistake on the part of the listers, to grant him a reduction in taxes for the tax years 2007 and 2008 based on the current assessment, and to prohibit the town from attempting

to collect taxes based on the 2007 and 2008 assessm ents.

At the status conference held in August 2010, the p arties disagreed about the applicable scope of review, and about whether a cou rt trial would be needed to determine the issues presented. The parties thereafter submi tted legal memoranda and motions that can be construed as cross-motions for summary judgm ent.

Rule 75 is the modern equivalent of the extraordin ary writs that existed at common law, including mandamus, certiorari, and pro hibition. A complaint seeking review of governmental action must therefore seek r elief “in the nature of” one of the

common-law writs. Hunt v. Village of Bristol , 159 Vt. 439, 440–41 (1992). In this case, plaintiff seeks review of a decision of a town boar d of abatement, and thereby seeks relief

in the nature of certiorari. Chapin Hill Estates, Inc. v. Town of Stowe , 131 Vt. 10, 13 (1972).

Review in the nature of certiorari is confined to questions of law affecting the

merits of the case. Ahern v. Mackey , 2007 VT 27, ¶ 8, 181 Vt. 599 (mem.). As such, th e review does not involve a de novo hearing, but rath er is based upon the record that was

created before the town board. Hunt , 159 Vt. at 440–41; Molesworth v. Univ. of

Vermont , 147 Vt. 4, 6–7 (1986). It is true that the court may take testimony as needed to supplement the record and facilitate appellate revi ew, but this is appropriately done only when the record has not been adequately preserved. State v. Forte , 159 Vt. 550, 554–55 & n.2 (1993); Chapin Hill Estates , 131 Vt. at 13. Even then, the need for additiona l evidence depends upon the specific legal issues rai sed by the petitioner and the particular circumstances of the case, and any additional evide nce is relevant only to the extent that it sheds light upon the precise manner in which the board is alleged to have acted outside the bounds of its authority. Rhodes v. Town of Woodstock , 132 Vt. 323, 324–25 (1974).

Here, the board issued a written decision explaini ng its denial of taxpayer’s request for abatement, and thus there is no factual dispute about what the board decided or the grounds upon which the decision was made. N or are there any disputes about the facts of the case. As such, there is no need to ta ke additional testimony in this case, and the record is sufficiently established to support a decision on the merits by this court on the memoranda already filed. Hunt , 159 Vt. at 442.

The parties agree that tax abatement is an equitab le remedy, and the statute makes

clear that the board of abatement has discretion to determine whether abatement should be granted in any particular case. See 24 V.S.A. § 1535(a) (explaining that “[t]he board

may abate in whole or part taxes, interest, and collec tion fees . . . accruing to the town in the following cases”) (emphasis added). As such, t he scope of this court’s review is confined to determining whether the board’s decisio n was an abuse of discretion, Hunt

, 159 Vt. at 441 (quoting Royalton College, Inc. v. State Board of Education , 127 Vt. 436, 447–48 (1969)), and for the following reasons, the court does not find any abuse of

discretion here.3

First, the statute authorizes abatement upon a fin ding of a “manifest error or a

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

Second, the abatement procedures are not meant to provide a second opportunity to appeal property valuations. In this case, plain tiff already sought court review of the 2007 assessment, and his appeal was dismissed becau se he did not provide the state appraiser with enough information to overcome the p resumption that the town’s valuation

was correct. Garbitelli , 2009 VT 109, ¶ 11; Rutland Country Club v. City of Rutland

, 140 Vt. 142, 145 (1981). It was not an abuse of di scretion for the board to conclude that the question of valuation had already been determin ed in this case, and that the abatement procedures should not be used as another opportunit y to litigate the fair market value of the property.

Finally, the record does not support plaintiff’s a rgument that the board misconstrued his request for abatement. Plaintiff’ s essential claim is that the 2007 and 2008 assessments were mistaken. As explained in mo re detail above, the board

considered the evidence relative to this claim and determined that there was no mistake in

the assessments that was attributable to the town l isters. Because this determination was well within the board’s discretion, and supported b y both the evidence and the abatement statute, plaintiff is not entitled to relief in the nature of certiorari.

ORDER

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

Dated at Chelsea, Vermont this ____ day of Decembe r, 2010.

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