MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2023	ME 69 Docket: Aro

- 23

- 24 Argued: September	14,	2023 Decided: November	9,	2023
Panel: STANFILL ,	C.J.,	and MEAD, JABAR , HORTON , CONNORS , LAWRENCE, and DOUGLAS , JJ.

CASSIDY	HOLDINGS,	LLC

v.
AROOSTOOK	COUNTY	COMMISSIONERS et	al.

CONNORS ,	J. [¶1] The	question presented is	whether,	under 36	M.R.S.	§	844	(2023) , the	Aroostook C ounty C ommissioners (the	Commissioners) and	the	State	Board of	 Property	 Tax	 Review	 have	 concurrent	 jurisdiction	 to	 hear an	 appeal	 of	 a municipality’s	denial	of a tax	abatement application	by Cassidy	Holdings,	LLC (Cassidy), which	 owns nonresidential	 property	 with	 an	 equalized	 municipal valuation	 of	 $1	 million	 or	 greater. Because	 the	 statute’s	 plain	 language establishes	 concurrent	jurisdiction,	we	affirm	 the	Superior	 Court’s	judgment determining	 that	 the	 Commissioners	 have	jurisdiction	 over	 an	 appeal	 of	 the abatement	decision	and	remanding	the	m atter	to	the	Commissioners.2
I. BACKGROUND [¶ 2 ] “The	following	facts	are	drawn	from	the	Superior	Court ’ s	decision and	 are	 supported	 by	 the	 record

. ” Hurricane	 Island	 Found.	 v.	 Town	 of
Vinalhaven ,	2023	ME	33,	¶ 2,	295	A.3d	147

. [¶ 3 ] Cassidy	owns	nonresidential	property	with	an	equalized	municipal
valuation	 of $1 million	 or	greater in the C ity	 of Caribou

. After	 the City’s tax assessor	provided	a	valuation	of	Cassidy’ s property ,	Cassidy	requested	a	partial abatement	 of	 its	 2021	 property	 taxes, which the City’s Board	 of	 Assessors
denied. The	City	does	not	have	a b oard	of a ssessment r eview,	so Cassidy next appealed	 the	 Board	 of	 Assessors’	 decision	 to	 the	 Commissioners

. The
Commissioners concluded	 that they lacked	 subject	 matter jurisdiction	 and declined	to	hear	the	appeal. [¶ 4 ] Cassidy	then	appealed the	Commissioners’ decision	to	the	Superior
Court pursuant	to	Maine	Rule	of	Civil	Procedure	80B

. S ee 36	M.R.S.	§	844(1) (“Either	party	may	appeal	from	the	decision	of	the county	commissioners	to	the Superior	 Court,	in	 accordance	with	 the	Maine	 Rules	 of	 Civil	 Procedure,	 Rule 80B.”). [¶ 5 ] The	Superior	Court ( Nelson , J. ) concluded	that	the	Commissioners erred	in	determining that they lack ed jurisdiction	over the abatement	appeal3
and	remanded	the	case for the	Commissioners	to	proceed	on	the	merits.		The Commissioners	 timely	appealed	 that	decision

. 1 See 14	M.R.S.	 § 1851	 (2023) ; M.R.	App.	P.	2B(c)(1).
II. DISCUSSION
A. We	interpret	the	meaning	of	section	844	de	novo. [¶ 6 ] When the	Superior	Court	act s in an appellate	capacity, we	directly review	 the	 operative administrative decision “to	 determine	 whether	 the findings	are	unsupported	by	substantial	evidence	in	the	record,	and	whether there	was	any	abuse	of	discretion	or	error	of	law.” Penkul	v.	Town	of	Lebanon , 2016	 ME	 16,	 ¶	 14,	 136	 A.3d	 88 (quotation	 marks	 omitted)

. Here,	 the
C ommissioners concluded that they	 lacked	 jurisdiction	 to	 hear	 Cassidy ’s abatement	appeal ,	which	is	a determination of	law;	therefore, w e evaluate	that
decision by	reviewing	de	novo	any relevant	statutory provisions. Desfosses	v. City	 of	 Saco ,	 2015	 ME	 151,	 ¶	 8 ,	 128	 A.3d	 648

. We begin	 by	 examining the statute’s	plain	language , considering	the “ entire	statutory	scheme	to	achieve	a
harmonious	result. ” Wister	v.	Town	of	Mount	Desert ,	2009	ME	66,	¶	17,	974	A.2d
903 .		I f	the statute is	clear, we end	our	review, and	apply the	plain	meaning	to

1 Although t his	is	an	interlocutory	appeal ,	o n	February	15,	2023,	we	issued	an	order	allowing	the appeal	 to	proceed	under	an	established	exception	 to	 the	 final	judgment	rule. See Fichter	v.	Bd.	of Envtl.	Prot. ,	604	A.2d	433,	436	(Me.	1992) ; Bar	Harbor	Banking	&	Tr.	Co.	v.	Alexander ,	411	A.2d	74, 76 (Me.	1980)

.4 interpret	the	provision at	issue

. Desfosses ,	2015	ME 151, ¶	8 ,	128	A.3d	648

. If the	 statute	 is	 ambiguous,	 we	 proceed	 to	 using	 other	 interpretive	 tools	 to
construe	the	statute. See,	e .g. , Damon v. S.D. Warren Co. ,	2010	ME	24,	¶	10,	990
A.2d	1028.

B. The	 plain	 language	 of s ection	 844	 provides	 for	 concurrent jurisdiction	before	either	the	Commissioners	or	the	State	Board. [¶ 7 ] T he	 Commissioners	 argue that th e	 language	 of 36	 M.R.S.	 §	 844
grant s exclusive	 jurisdiction to	 the	 State	 Board over	 appeals	 of	 abatement decisions	 regarding	 nonresidential	 property	 with	 an	 equalized	 municipal valuation	 of	 $1	 million	 or	 greater , while Cassidy	 argues	 that the	 statutory language provides	 concurrent	 jurisdiction	 for	 such	 appeals before	 the
Commissioners	and	the	State	Board

. 2 [¶ 8 ] To	set	this	question	in	context, 36	M.R.S.	§§	841

- 849 (2023) set	out the	 avenues	 pursuant	 to	 which	 a	 taxpayer	 may	 seek	 an	 abatement	 of	 its municipal	 property	 taxes. T he taxpayer must	 start	 by	 filing	 a	 written

2 The	 Commissioners	 also	 point	 to Cent ral Me

. Power Co. v.	 Town	 of	 Moscow ,	 649	 A.2d	 320 (Me. 1994),	 as	 being	 dispositive	 regarding	 whether	 they	 have	 jurisdiction	 to	 hear	 the	 abatement appeal.		In Town	of	Moscow ,	we	said,	“ W hen	a	taxpayer	challenges	the	assessment	of	nonresidential property	with	a	municipal	valuation	exceeding	$500,000,	appeal	from	the	municipal	determination is	 to	 the	 Board	 of	 Property	 Tax	 Review.” Id. at 322.	 	 Whether	 another	 governmental	 body	 was authorized	to	hear	the	taxpayer’s	challenge	was	not	an	issue	in	that	case,	and	we	did	not	evaluate	the jurisdiction	 for	 abatement	 appeals	 beyond	 the	 State	 Board’s	 authorization	 under	 section	 844(2). See i d. at	 321

- 26. Therefore, our	 holding	 here	is	 consistent	with Town	 of	Moscow ’ s holding.	 	 The Legislature	 has	 since	 amended	 section	 844(2)	 to	 raise	 the	 valuation	 threshold	 from	 $500,000	 to $1,000,000.		P.L. 1995,	ch.	262 , §	7.5 application	with	the	assessors	or	the	municipal	officers.		36	M.R.S.	§	841(1).		If
th at abatement	application	is	denied,	the	taxpayer	may then appeal	the	decision to	the	municipality’s	board	of	assessment	review according	to 36 M.R.S.	§	843.
If

,	 as	 here, the	 municipality	 does	 not	 have	 a	 board	 of	 assessment	 review , appeals	of	abatement	decisions	are	governed	by	36	M.R.S.	§	844. [¶ 9 ] Under 36	 M.R.S.	 § 844 (1) , a	 property	 o wner	 who	 applied	 for abatement	with	the	assessors	or	municipal	officers	and	was	denied “ may	apply to	the	county	commissioners	within 6 0 days	after	notice	of	the	decisions	from which	 the	 appeal	 is	 being	 taken	 or	 within	 60	 days	 after	 the	 application	 is
deemed	to	have	been	denied.” [¶1 0 ] If	 the	 property	 owner	 is	 appealing	 an	 abatement	 decision regarding	 nonresidential	 property	 valued	 at $1	 million	 or	 greater , then
36 M.R.S.	§ 844 (2) becomes	relevant	and provides: Notwithstanding	 subsection	 1 ,	 the	 applicant may appeal	 the decision	of	the	assessors	or	the	municipal	officers	on	a	request	for abatement	with	 respect	 to	nonresidential	property	 or	properties having	an	equalized	municipal	valuation	of	$1,000,000	or	greater, either	separately	or	in	the	aggregate,	to	the State	Board	of	Property Tax	Review	within	60	days	after	notice	of	the	decision	from	which the	appeal	is	taken	or	after	the	application	is	deemed	to	be	denied. If	 the	 State	 Board	 of	 Property	 Tax	 Review	 determ ines	 that	 the applicant	 is	 over

- assessed,	 it	 shall	 grant	 such	 reasonable abatement	 as	 it	 determines	 proper.	 	 For	 the	 purposes	 of	 this subsection,	“nonresidential	property”	means	property	that	is	used primarily	 for	 commercial,	 industrial	 or	 business	 purpose s,6 excluding	 unimproved	 land	 that	 is	 not	 associated	 with	 a commercial,	industrial,	or	business	use. (Emphasis	added.) [¶1 1 ] The issue before us is	the	interplay	between subsections	1	and	2
of section	844	and	whether	subsection 2 requires	an	owner	of	nonresidential property	valued	at	$1	million	or	greater	to pursue a discretionary appeal before
the	State	Board and	not	the county	c ommissioners

. [¶1 2 ]		In	interpreting	statutory	language, “[w]ords	and	phrases	shall	be construed	according	to	the	common	meaning	of	the	language.” 1	M.R.S.	§	72(3) (2023)

. W e often	 look	 to	 dictionaries	 to	 identify	 that	 common	 meaning.
See, e.g., State	v.	Blum ,	2018	ME	78,	¶	9,	187	A.3d	566 ; Hum.	Rts.	Def.	Ctr.	v.	Maine Cnty.	Comm ’r s	Ass ’ n	Self

- funded	Risk	Mgmt.	Pool ,	2023	ME	56,	¶	2 2 , 301 A

. 3d
782 (“The plain meaning	of	the	[statutory]	language	may	be	determined	by	its dictionary	definition.”). [¶1 3 ] S ection	 844 (2) open s with	 the	 phrase “ [ n ] otwithstanding
subsection 1

. ” Several	 dictionaries	 define “notwithstanding ” as	 “in	 spite	 of.” Notwithstanding ,	 New	 Oxford	 American	 Dictionary	 (3d	 ed.	 2010); Notwithstanding ,	 American	 Heritage	 Dictionary	 of	 the	 English Language (5th ed.	 2016); Notwithstanding ,	 Webster’s	 New	 World	 College	 Dictionary7 (5th ed.	2016 )

. Therefore, the common	meaning	of	 this opening	phrase is in spite	of	subsection 1 ; that	is , subsection 1 does	not	affect subsection 2

. [¶1 4 ] We	turn	next to	the	word	“may .” Title 1 M.R.S.	§ 71(9

- A) (2023) provides	in	relevant	part	that	“‘[s]hall’	and	‘must’	are	terms	of	equal	weight	that indicate	 a	 mandatory	 duty,	 action	 or	 requirement. ‘May’	 indicates authorization	 or	 permission	 to	 act.” The	 New	 Oxford	 American	 Dictionary defines	“may”	as	expressing	permission. May ,	New	Oxford	American	Dictionary (3d	ed.	2010)

. The	Maine	Legislative	Drafting	Manual 3 similarly	provides: (3)	 May. “May”	 means	 “is	 permitted	 to,”	 “is	 authorized	 to,”	 “is entitled	to”	or	“has	power	to.” “May”	authorizes	or	permits	rather than	commands. Example: The	 commissioner	 may	 call	 a	 special	 meeting	 when necessary. If	 calling	 a	 special	 meeting	 is	 discretionary,	 “may”	 is	 the	 proper word. If	the	commissioner	is	required	to	call	a	special	meeting,	use “the	commissioner	shall

.	.	. ” Office	of	the	Revisor	of	Statutes, Maine	Legislative	Drafting	Manual ,	pt.	III,	ch.	2, §	1(A)(3)	at	101	(1st	ed.	Oct.	1990,	rev. Oct.	2 022 )

.

3 We	have	looked	to	this	manual	repeatedly. E.g., Manirakiza	v.	Dep’t	of	Health	&	Hum.	Servs. ,	2018 ME	10,	¶	10,	177	A.3d	1264 ; Jacob	v.	Kippax ,	2011	ME	1 , ¶	31 ,	10	A.3d	1159

.8 [¶1 5 ] The	 Legislature’s	 use	 of	 “may”	in	 section	 844 (2) is particularly significant	given its forceful use	of	language like	“shall”	or	“must”	in	other	parts
of	 the	 statute. See ,	e.g. , 36	M.R.S.	 §	 583	 (2023) (“Appeal	 from	an	abatement
decision	rendered	under	section	841 shall be	to	the	State	Board	of	Property	Tax Review.”	(emphasis	added)); 36	M.R.S.	§	1118	(2023) (“Appeal	from	a	decision
rendered	under	section	841	or	a	recommended	current	use	value	established
under	 section	 1106-A must be	 to	 the	 State	 Board	 of	 Property	 Tax	 Review.” (emphasis	added)). [¶1 6 ]		In	sum,	consistent	with	the	opening	“notwithstanding” clause ,	use of	the	term	“may”	makes	plain	that	an	applicant is	permitted	to appeal	to	the
State Board	 but does	 not	 mean	 that	 the	 Board	 is	 the	 exclusive	 body	 with jurisdiction	to	hear	the	appeal.		Rather,	the	applicant,	at	its	option,	may	choose to	appeal	either	to	the	State	Board	or to the c ounty c ommissioners. 4

4 Because	we	rule	based	on	the	plain	reading	of	the	statute,	we	need	go	no	further. See	Cobb	v.	Bd. of	Counseling	Professionals	Licensure ,	2006	ME	48,	¶	13,	896	A.2d	271	(holding that we	do	not	defer to	an	agency’s	interpretation	of	an	unambiguous	statute). We	note,	however,	that	in	support	of	their interpretation	of	the	statute,	the	Commissioners	cited	Maine	Revenue	Services	Property	Tax	Division Tax	Bulletin	No.	10,	in	which	the	agency	interpreted	section	844(2)	to	require	that	these	appeals	go to	the	State Board.		Originally,	however,	this	guidance	allowed	the	appeals	to	proceed	to	the	County Commissioners	or	the	State	Board	of	Property	Tax	Review.		Days	after	the	Superior	Court	entered judgment	in	 this	case,	 the	Maine	Revenue	Service’s	guidance	changed	and directed	appeals	 to	 the State	 Board	 without	 mention	 of	 the	 Commissioners.	 	 In	 making	 that	 change,	 the	 agency	 did	 not acknowledge that it	was	changing	its	position;	did	not	explain	why	it	was	doing	so;	and,	given	this lacuna	in	explanation,	did	not	indicate	that	it	had	reflected	upon	any	relevant	reliance	interests. An	agency	is	free	to	change	its	mind	in	its	interpretation	of	a	statute. See	Good	Samaritan	Hosp.	v. Shalala ,	508	U.S.	402,	417	(1993). But	if	it	does	so,	the	agency	must acknowledge	that	it	is	making	a9
III. CONCLUSION [¶1 7 ] We conclude that the	 statute	 is	 clear

. Section	 844	 allows	 a property	 owner	 to	 appeal	 an	 abatement	 decision directly to county
commissioners or	 to	 the	 State	 Board	 of	 Property	 Tax	 Review when	 the municipality	 does	 not	 have	 a	 board	 of	 assessment	 review and the	 taxed
property at issue	is	nonresidential property valued	at	$1	million	or	greater

. The	entry	is: Judgment	affirmed

.

change , explain	why , and	give	due	consideration	to	the	serious	reliance	interests	on	the	old	policy. Charles	Koch,	Jr.	&	Richard	Murphy,	Admin. L.	&	Prac ., Review	of	policy	changes §	11:30.25 ,	Westlaw (database	updated	February	2023) (At	the	time	Cassidy	had	to	decide	where	to	appeal,	the	agency was	indicating	it	could	go	to	the	Commissioners )

. S ee	also FCC	v.	Fox	Television	Stations,	Inc. , 556	U.S. 502,	 515 (2009) (“An	agency	may	 not

.	 .	 . depart	 from	a	 prior	 policy sub	 silentio

. ”); Nat ’ l	 Cable	& Telecomms

. Ass’n	v.	Brand	X	Internet	Servs

. , 545	U.S.	967,	981 ( 2005)	(“Unexplained	inconsistency	is, at	most,	a	reason	for	holding	an	interpretation	to	be	an	arbitrary	and	capricious	change	from	agency practice	under	the	Administrative	Procedure	Act.”); Encino	Motorcars,	LLC	v.	Navarro ,	579	US. 211, 221

- 22 (2016)	( noting that agencies	must	acknowledge the fact	of	change,	offer	good	reasons	for the change,	 take	 cognizance	 of	 reliance	 interests,	 and	 explain	 why	 they	 are	 “disregarding	 facts	 and circumstances	that	underlay	or	were	engendered	by	the	prior	policy”	(quoting Fox Television Stations, Inc. , 129 S.Ct. 1800 , 1811 ) ) ; Smiley	v.	 Citibank	 (S

. D

. ),	N.A. ,	517	U.S.	735,	742	 (1996)	 (“ s udden	and unexplained	 change”	 or	 “change	 that	 does	 not	 take	 account	 of	 legitimate	 reliance	 on	 prior interpretation”	may	be arbitrary); Nat ’ l	Lab

. Rel s. Bd

. v.	Lily	Trans p. Corp

. ,	853	F.3d	31,	36	(1st Cir. 2017)	 (noting that the	 Justices	 in Fox were	 unanimous in	 their	 “acceptance	 of	 the	 view,	 often expressed,	that	an	agency	is	not	forever	bound	by	an	earlier resolution	of	an	interpretive	issue,	but that	a	change	must	be	addressed	expressly,	at	least	by	the	agency’s	articulate	recognition	that	it	is departing	from	its	precedent” and	that	“an	about

- face	on	a	rule	owing	to	facts	changed	from	those underlying	the	prior	view	requires	that	the	new	facts	be	addressed	explicitly	by	reasoned	explanation for	the	change	of	direction”).10 Peter	T.	Marchesi,	Esq.,	and	Michael	D.	Lichtenstein,	Esq.	(orally),	Wheeler	& Arey,	P.A.,	Waterville,	for	appellant	Aroostook	County	Commissioners Roger	L.	Huber,	Esq.	(orally),	and	Emily	A.	Belanger,	Esq.,	Farrell,	Rosenblatt	& Russell,	Bangor,	for	appellee	Cassidy	Holdings,	LLC

Aroostook County Superior	Court	docket	number	AP

- 2022

- 2 F OR C LERK R EFERENCE O NLY