In re: Appeal of the Town of Colchester, No. S0933-10 CnC (Toor, J., Jan. 28, 2011) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.] 

VERMONT SUPERIOR COURT

CHITTENDEN UNIT

CIVIL DIVISION

│ 

IN RE: APPEAL OF THE TOWN OF │ Docket No. S0933-10 CnC 

COLCHESTER │ 

│ 

RULING ON MOTION FOR SUMMARY JUDGMENT

 Pursuant to 32 V.S.A. § 5408(d), the Town of Colchester (the Town) appeals the 

decision of the State’s Valuation Appeal Board (VAB) dated July 12, 2010. The VAB 

concluded that it could not find that certain property located in the Town is tax exempt, 

and therefore denied the Town’s appeal of its equalized education property value (EEPV) 

and the coefficient of dispersion (COD) for 2008. The State of Vermont (the State) has 

moved for summary judgment on the grounds that the Town has not shown, and cannot 

show, that the property at issue satisfies the requirements for tax exemption set forth in 

32 V.S.A. §§ 3802(4) and 3832(2). Charles L. Merriman, Esq. represents the Town; 

Assistant Attorney General Suzanne M. Monte represents the State. 

 Section 5408(d) requires this court to “hear” the appeal from the VAB “de novo.” 

32 V.S.A. § 5408(d). This “signifies that that court shall conduct a new evidentiary 

hearing and make its own independent findings.” Town of Killington v. Dep’t of Taxes, 

2003 VT 88, ¶ 5, 176 Vt. 70 (citing State v. Madison, 163 Vt. 360, 369 (1995)). 

However, given that this case is in a summary judgment posture, the court has not taken 

evidence or made findings of fact. Instead, the court applies the ordinary summary 

judgment standard, seeking to determine whether the State has established that there is no 

genuine issue of material fact and that the State is entitled to judgment as a matter of law. 
2

I. Factual Background

 The following facts are derived from the parties’ statements, and are undisputed 

except where noted. The Religious Hospitallers of St. Joseph of Vermont, Inc. (RHS)1 is 

a Vermont nonprofit corporation organized exclusively for religious purposes. PACE 

Vermont, Inc. (PACE) is a Vermont nonprofit corporation organized for charitable and 

education purposes and activities including: coordinating and providing health, social and 

transportation services to elders of designated communities; establishing a 

comprehensive service and financing model of long-term care; establishing and 

maintaining adult day health centers and other facilities as appropriate; and developing 

and conducting educational programs for communities and PACE staff. 

 In 2006 and 2007, RHS owned a 5-acre property in Colchester (the Property) 

occupied by a 3-story brick building that was previously used by RHS as a convent, but 

which was converted a number of years ago into a residential care home for nuns as well 

as offices. By a Lease Agreement dated March 24, 2006, RHS leased the Property to 

PACE for the purpose of providing health and social services to the elderly in exchange 

for an annual rental payment of at least $93,800. Specifically, under the terms of the 

lease: 

The Premises shall be used exclusively for the provision and 

administration of health and social services related to the Program of AllInclusive Care for the Elderly (“PACE”), serving persons who are frail, 

nursing home eligible, and seeking a non-residential adult day program, 

and directly related activities, and for no other, different or additional 

purpose unless the prior written consent of Landlord is obtained. 

 

1

 The Hospitallers is “[a] military and religious order founded in the 12th century and so called because it 

built a hospital at Jerusalem to care for pilgrims. . . . The Hospitallers still function in several countries as a 

humanitarian society.” Black’s Law Dictionary 754–55 (8th ed. 2004). 
3

Lease, § 3(a). Nothing in the record indicates that RHS gave written consent to use the 

Property for a different or additional purpose, nor does it appear that PACE has deviated 

from the lease provision. 

 In 2007, Colchester Town Assessor Mark Paulsen set the Property’s value at 

$1,624,800. The State asserts that Paulson also determined that the Property is taxable. 

The Town disputes whether Paulson made that determination, and asserts that Paulson 

was not qualified to determine the legal tax status of the Property. RHS and PACE 

timely appealed to the Board of Listers, which did not change the assessment. On 

October 25, 2007, RHS and PACE filed an appeal with the Board of Civil Authority 

(BCA). Paulsen appeared for the Board of Listers, and argued that the property was not 

exempt from taxation. On December 3, 2007, the BCA issued its decision, declining to 

rule on the issue of taxability and upholding the assessor’s valuation. In particular, the 

BCA wrote: 

After much discussion and deliberation the Committee felt that 

there are two issues to address. The first issue has to do with the exempt 

status of the property. The Committee determined that whether a property 

is tax exempt is a question of law, and concluded that the BCA does not 

have jurisdiction to rule on the exemption issue and should decline to rule 

on the issue of taxability. It is a matter for the court to determine. 

 The second issue to address is the value of the property. Although 

the appellant stated in the written material that the property is overassessed and should be reduced, there was not sufficient evidence 

presented to back the claim of $790,000, using the income approach. 

 We conclude that the subject property’s fair market value is 

$1,624,800 based on the evidence presented. 

State’s Ex. A, BCA Decision (Dec. 3, 2007). In a Notice of Appeal dated January 2, 

2008, RHS and PACE appealed the BCA’s decision to the Chittenden Superior Court (the 
4

Pace appeal).2 RHS and PACE later amended their petition to include a request for 

declaratory relief regarding exemption. RHS and PACE moved for summary judgment, 

seeking a declaration that the Property is tax-exempt. 

 The State asserts that the Town initially took a position adverse to the position 

held by RHS and PACE. The Town denies that, asserting that it drafted a memorandum 

of law in opposition to RHS and PACE’s motion for summary judgment and emailed the 

draft to counsel for the State, but later called the State’s counsel and notified the State 

that the Town would not file the draft motion but would instead take the legal position 

that the property is exempt. The motion the Town actually filed with the court supported 

RHS and PACE’s motion for summary judgment, and requested that the court grant the 

motion. 

The court granted the motion for summary judgment, stating: “Courts exist for 

purpose of resolving ‘cases or controversies.’ We therefore accept Town’s assent. 

Submit proposed judgment.” Entry, In re Pace Vermont, Inc. and Religious Hospitallers 

of St. Joseph of Vermont, Inc., No. S0024-08 CnC (Aug. 25, 2008) (Katz, J.). RHS and 

PACE submitted a proposed order to the court, and the court issued a final order 

consistent with that proposed judgment. The “Final Order” reads as follows: 

IT IS ORDERED that Appellants’ Motion for Summary Judgment is 

GRANTED. 

IT IS FURTHER ORDERED THAT the property located at 786 College 

Parkway in Colchester (“Property”) is entitled to an exemption from 

property taxes under 32 V.S.A. § 3802(4) for properties dedicated to 

public, pious or charitable uses. 

 

2

 The Pace appeal was captioned In re Pace Vermont, Inc. and Religious Hospitallers of St. Joseph of 

Vermont, Inc. and docketed No. S0024-08 CnC. The appeals described above—from the Town Assessor to 

the Board of Listers, and then to the BCA and ultimately to the Superior Court—were all pursuant to the 

appeals provisions of 32 V.S.A. ch. 131. 
5

IT IS FURTHER ORDERED THAT the assessment for the Property for 

tax years 2007–2008 and 2008–2009 shall be $0. 

IT IS FURTHER ORDERED THAT, as long as the Property is owned by 

Fanny Allen Holdings, Inc. f/k/a Fanny Allen Hospital Dieu or related 

successors and assigns and operated by PACE Vermont, Inc., or related 

successors and assigns, with a mission to care for the elderly, and that both 

entities remain non-profit corporations, then the Property shall be entitled 

to an exemption from property taxes under 32 V.S.A. Chapter 125. 

IT IS SO ORDERED. 

Id. Order (Oct. 22, 2008) (Katz, J.). The State of Vermont was not a party to the Pace

appeal. 

II. Procedural History as it Relates to this § 5408(d) Appeal

 This case has a lengthy procedural history, which the court recites here by 

drawing on the administrative record filed with this court pursuant to V.R.C.P. 74(d).3

 At 

about the same time that the Pace appeal was filed in early January 2008, the Town of 

Colchester—pursuant to 32 V.S.A. § 5408—petitioned the Director of the Vermont 

Department of Taxes’ Division of Property Valuation and Review (PVR) for a 

redetermination of the Town’s 2007 equalized education property value (EEPV) and 

coefficient of dispersion (COD). The Town indicated that it was disputing the Education 

Grand List and thus the Equalized Education Grand List; noted an appeal pending in 

Superior Court regarding a request for tax exempt status (the Pace appeal, presumably); 

and stated that it sought to have the resolution of the exemption dispute be reflected in the 

2007 Education Grand List and Equalized Grand List.

 By a letter dated January 11, 2008, PVR acknowledged the Town’s petition for 

redetermination. The letter indicated that a meeting would be scheduled, and that PVR 

 

3

 The following procedural history includes many of the “additional material facts not in dispute” that

appear in the Town’s opposition to the State’s motion for summary judgment. 
6

would propose a “tentative redetermination” if obvious errors were pointed out or if PVR 

believed corrections should be made. A representative from PVR did meet with Town 

officials, after which PVR issued a “Notice of Tentative Redetermination” dated 

March 7, 2008. The Notice of Tentative Redetermination stated that PVR “did not find 

sufficient reason to make changes in the equalized education property value or coefficient 

of dispersion. As a result, our values certified to you effective January 1, 2008 

remain . . . .” PVR scheduled a hearing for April 3, 2008 in the event the Town wished to 

pursue its appeal further. 

 In a letter dated March 13, 2008 and addressed to PVR Director William E. 

Johnson, the Town asked that the April 3 hearing be waived and that the appeal be 

determined based on the Town’s letter. The Town’s letter asserted that the Town’s 

equalization appeal turned on a dispute over the taxability of the Property owned by 

RHS, and that that dispute was currently before the Chittenden Superior Court.4

 The 

Town’s letter concluded by recognizing that its appeal was “predicated on an as-yet 

undecided Superior Court action. We believe, though, that we need to lodge the appeal 

for the purpose of preserving Colchester’s EEPV appeal rights until final adjudication of 

the Superior Court case.” 

 By a letter dated March 26, 2008 and addressed to Director Johnson, the Vermont 

Department of Taxes indicated it did not object to the Town’s request to waive the 

hearing. The letter, which was authored by Attorney Monte, stated the following: 

It is the Tax Department’s position that the Town has provided no basis 

for a redetermination. As acknowledged in the Town’s March 13, 2008 

letter, the Town included the property at issue—property owned by [RHS] 

and operated by [PACE]—on its 2007 grand list, which PVR then used for 

 

4

 That referred to the Pace appeal described above. 
7

purposes of its 2007 Equalization Study. The taxability of the [Property] 

is currently under separate appeal in the Chittenden Superior Court. 

 The Town has submitted no evidence in the current appeal 

indicating that the [Property] was incorrectly treated on its 2007 grand list 

or in the 2007 Equalization Study. Therefore, the Tax Department 

respectfully requests that the Town’s request for a redetermination be 

denied. 

Director Johnson rendered his decision in a letter dated April 8, 2008. He wrote: 

I have reviewed the letter you submitted on behalf of the Town of 

Colchester dated March 13, 2008, as well as the Department’s March 26, 

2008 response to your letter, submitted by Suzanne M. Monte, Esquire. 

 At this time, the Town has presented no basis for recalculation of 

its equalized education property value (EEPV) and coefficient of 

dispersion (COD). As the Town has acknowledged, the taxability of the 

[Property] is currently pending in the Chittenden Superior Court. The 

Town has waived its right to a hearing in the equalization study appeal; 

accordingly, a finding by PVR that the property is exempt, and that the 

Town’s Grand List should be adjusted, has no evidentiary support in this 

forum. Further, such finding is premature and should await a decision of 

the Superior Court. 

 The Town has stated that it wishes to preserve its appeal rights, 

pending decision by the Superior Court, and may do so in the manner 

prescribed by law. . . . 

In a letter dated April 9, 2008 and addressed to Director Johnson, the Town gave 

notice that it appealed the decision to the Valuation Appeal Board (VAB) pursuant to 32 

V.S.A. § 5408(c). The Town suggested that the VAB await the decision in the Pace

appeal before scheduling the redetermination appeal. By a letter dated April 30, 2008, 

the VAB acknowledged receipt of the April 9 letter, and indicated it would not schedule 

the appeal until the Superior Court decided the Pace appeal. 

As described above, Judge Katz issued a “Final Order” in the Pace appeal on 

October 22, 2008. In a letter dated December 22, 2008, the Town advised the VAB of 

the Final Order, attached a copy of that order, and requested that the VAB find that the 

Town’s Grand List is reduced by the listed value of the Property and order PVR to 
8

recalculate the Town’s EEPV using the reduced grand list. The Town’s letter mentioned 

that the Final Order was in response to an unopposed motion for summary judgment, but 

the Town did not enclose a copy of Judge Katz’s August 25, 2008 Entry. 

In January 2009 the State moved for summary judgment before the VAB, arguing 

that (1) the Pace appeal is not binding on the State; (2) the Property fails the test set forth 

in American Museum of Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103 (1989), 

because there is no concurrence of ownership and use; and (3) the Property runs afoul of 

32 V.S.A. § 3832(2) as a property owned by a religious society because it is not used for 

one of the statutorily-prescribed purposes. The Town opposed the State’s motion, 

arguing that (1) the VAB lacks jurisdiction to determine the taxability of the Property; (2) 

the State is bound by the Final Order in the Pace appeal; and (3) the commissioner’s 

equalization authority does not override that order. 

The VAB issued a “Decision and Notice of Hearing” addressing the State’s 

summary judgment motion on July 22, 2009. The VAB wrote: 

The Valuation Appeal Board has considered all filings in regards 

to the Town of Colchester’s appeal of William E. Johnson’s, Director of 

Property Valuation and Review, redetermination of the municipality’s 

equalized education property value and coefficient of dispersion dated 

April 8, 2008. 

The State’s Motion for Summary Judgment dated January 20, 2009 

is hereby denied. 

The Valuation Appeal Board has scheduled a de novo hearing in 

accordance with 32 V.S.A. section 5408(c) on whether to include the 

[Property] in the Town of Colchester’s 2008 equalized education property 

value and coefficient of dispersion (Grand List 2007). The hearing is 

scheduled for August 28, 2009 a Friday at 10:00 a.m. in the Colchester 

Town Offices in Colchester, Vermont. 
9

The Board did hold a hearing,5 after which the Town filed a Post-Hearing Memorandum 

of Law, proposed findings of fact, and a supplemental exhibit consisting of the March 7, 

2008 “Notice of Tentative Redetermination,” the March 26, 2008 letter, and the 

Director’s April 8, 2008 redetermination letter. For its part, the State also filed a 

memorandum of law and proposed findings of fact, both dated November 12, 2009. 

 The VAB issued its “Findings and Notice of Decision” dated July 12, 2010. The 

VAB recounted much of the procedural history described above. In the course of doing 

so, the VAB noted that it had read Judge Katz’s August 25, 2008 Entry, the effect of 

which it interpreted as being to inform the parties, and anyone else relying on the Entry, 

that Judge Katz, like Director Johnson, had heard “no evidentiary support” for the 

taxability of the Property, and was instead entering as an Order a stipulation of the 

parties. After discussing the procedural history, the VAB wrote as follows: 

While the three VAB members may now know something more 

than Director Johnson and Judge Katz about the activities taking place 

inside the PACE building in Colchester, after the hearing the three 

members were left with more questions than answers. In fact, the only 

witness at the hearing that had been inside the building at all was a witness 

for the state. The Town in the de novo VAB hearing at the end of last 

summer fell far short of proving that PACE was entitled to tax exempt 

status. The VAB cannot accept this Entry based on a stipulation of two 

parties as to tax exemption because the issue itself has never been tried. In 

fact Judge Katz seems to warn the Board not to rely on the Town’s assent 

to the taxpayer’s claim of tax exemption. Such a practice would set 

dangerous precedent. The problem in this case is that of many Vermont 

towns: whether to spend the town’s limited resources in a lengthy and 

expensive lawsuit when so much of the tax dollars collected are sent to 

Montpelier for the State’s education fund. . . . 

 In conclusion, the case before the VAB in regards to the Town of 

Colchester, the PACE property and the Vermont Department illustrates 

one of the major problems with Vermont’s education funding system. 

And that problem is that the time and expense of litigation involving tax 

 

5

 The court understands that Mark Paulson offered testimony at the VAB hearing. As mentioned above, 

Paulson was the Town assessor who set the Property’s value at $1,624,800 in 2007. At the time he 

appeared before the VAB, he was apparently a PVR employee. 
10

exemption status, or property tax valuation, is borne entirely by the 

Towns, yet such determinations directly affect the State’s equalized 

education grand list. One player is missing from the table at the settlement 

of a disagreement between a town and taxpayer, that being the State. 

Vermont’s equalization process brings the missing player back to the 

table, sometimes with consequences unforeseen by the town. 

 Despite the policy problems as outlined above, based on the 

evidence and arguments presented at the hearing in Colchester, and the 

filings by both parties before and since the hearing, the VAB cannot find 

that the PACE [Property] is tax exempt and, therefore, must deny the 

Town of Colchester’s appeal of its equalized education property value 

(EEPV) and coefficient of dispersion (COD) effective January 1, 2008. 

The Town appeals that decision to this court pursuant to 32 V.S.A. § 5408(d). 

III. The Town’s Motion for Leave to File a Surreply

 The State has now moved for summary judgment in this case on the grounds that 

the Town has not shown, and cannot show, that the Property satisfies the requirements for 

tax exemption set forth in 32 V.S.A. §§ 3802(4) and 3832(2). The Town has filed an 

opposition to that motion,6

 and the State has filed a reply. In its reply, the State cites 

what appears to be a transcript of Mark Paulsen’s testimony at the August 28, 2009 VAB 

hearing. The transcript was filed in this court on November 4, 2010 along with the 

State’s reply, but was not included in the administrative record filed on August 2, 2010. 

 The Town filed a motion for leave to file a surreply, noting that the State’s reply 

includes a partial transcript of Paulson’s testimony, and seeking an opportunity to 

respond to that “new material and claim.” Mot. for Leave to File a Surreply at 2 (filed 

Nov. 17, 2010). Also on November 17, the Town filed a surreply, asserting that 

Paulson’s testimony actually supports the Town’s estoppel claim. Surreply at 2 (filed 

 

6

 On October 11, 2010, the Town moved for an enlargement of time to oppose the State’s motion. The 

Town then filed its opposition on October 18, 2010. The State has not opposed the Town’s motion for an 

enlargement. The court therefore grants the Town’s motion for enlargement of time. 
11

Nov. 17, 2010). The court therefore begins with the Town’s motion for leave to file a 

surreply. 

Rule 74(d) requires in part: 

Any party desiring a transcript of any portion of the proceedings to be 

included in the record on appeal shall notify all other parties thereof, shall 

procure such portion at that party’s own expense, and shall cause it to be 

filed with the clerk of the superior court within 30 days after the filing of 

the notice of appeal. 

V.R.C.P. 74(d). Here, the State seeks in its reply to rely on a transcript from the VAB 

proceedings. The Town asserts that “the State’s submittal of Paulson’s supposed 

testimony at this late date is troubling,” and describes a dispute over the responsibility for 

recording the hearing. Surreply at 2 n.3 (filed Nov. 17, 2010). More important for 

present purposes, however, is that there is no evidence that the State notified the Town 

that the transcript should be included in the record of this appeal, and that the transcript 

upon which the State relies was not filed within 30 days of August 2, 2010—the date the 

Town filed this appeal. The Paulson transcript is therefore not a part of the record on 

appeal, and the court will not consider it. The Town therefore need not respond to that 

transcript. 

To the extent the Town’s surreply—and footnote 2 in particular—helps to clarify 

the Town’s legal arguments, the court will consider it. To that extent, in the interests of 

fully understanding the parties’ positions, and rendering a decision that might bring this 

long saga of litigation to a close, the court grants the Town’s motion for leave to file a 

surreply, and will at the same time consider the State’s response to the surreply. 
12

IV. The State’s Motion for Summary Judgment

 The issue presented in the State’s motion is whether the Property satisfies the 

requirements for tax exemption set forth in 32 V.S.A. §§ 3802(4) and 3832(2). In 

opposition, the Town does not take up that issue directly, but instead offers a variety of 

reasons why summary judgment should be denied. The court takes each argument in 

turn. 

A. The Town’s Claim That PVR Either Did Not Act or Unlawfully Exercised its Powers

 The Town begins its opposition by arguing that the State’s motion for summary 

judgment attempts to “recast” the dispute as whether the Property is taxable, and thus 

avoids the Town’s actual claim. That claim is, as best the court can tell, that PVR 

“unlawfully exercis[ed] judicial power when calculating the Town’s common level of 

appraisal (CLA).”7

 Opp’n at 1 (filed Oct. 18, 2010). The court finds this argument 

confusing because the Town also asserts that PVR did not actually make any 

determination as to whether the Property is taxable. Moreover, the action in this case 

began when the Town petitioned the Director of PVR for a redetermination of the Town’s 

2007 EEPV and COD. The Town indicated in its letter to Director Johnson that its 

equalization appeal turned on a dispute over the taxability of the Property. In short, the 

Town’s claim at the start of the § 5408 appeals process was not that PVR lacked authority 

to determine taxability, but that it affirmatively sought a ruling from PVR on that very 

issue. In any case, the court will address the Town’s claims.8

 

7

 The Town says that this appeal is really about the Town’s CLA because the CLA determines the Town’s 

education tax rates, and is determined via PVR’s equalization study. Opp’n at 1 n.2 (filed Oct. 18, 2010). 

8

 The Town also argues that there are disputed issues of fact in this case: (1) whether the Town took a legal 

position which bound the Town to litigate the taxability of RHS’s property on behalf of the State; (2)

whether PVR “found” or “determined” RHS’s property to be taxable; and (3) whether the State acted or 

failed to act in such a manner as to equitably estop the State from asserting that RHS’s property is taxable. 
13

 The Town argues that summary judgment must be denied either because PVR did 

not actually make a determination as to whether the Property is tax-exempt, or because 

PVR does not have judicial authority to determine the tax status of property. Opp’n at 3 

(filed Oct. 18, 2010). In support of its second point, the Town cites Subud of Woodstock, 

Inc. v. Town of Barnard, 169 Vt. 582 (1999) (mem.). The State maintains that the Town 

is incorrect, and that PVR did in fact determine that the Property is not tax exempt. The 

State further asserts that PVR cannot determine the EEPV and COD without determining 

the taxability of property, because PVR is required by statute to determine the “aggregate 

fair market value of all nonresidential and homestead property that is required to be listed 

at fair market value.” 32 V.S.A. § 5401(6). Finally, the State contends that Subud is 

inapplicable because that case involved a valuation appeal under 32 V.S.A. § 4461 

instead of a petition for redetermination under 32 V.S.A. § 5408. 

Vermont’s Equal Educational Opportunity Act (Act 60) operates to “equalize[] 

education expenditures per student across Vermont through a state-wide fund comprised 

of a general state support grant and local property tax revenue.” In re Town of 

Killington, 2003 VT 87A, ¶ 2, 176 Vt. 60. 

Each year, the Department of Taxes conducts an “equalization” study, the 

purpose of which is to estimate the full fair market value of all property 

that is taxable for education purposes and to determine the level of 

assessment equity (coefficient of dispersion). See Introduction to 

Vermont’s Equalization Study, Vermont Dep’t of Taxes, Division of 

Property Valuation and Review (Dec.2004), available at 

http://www.state.vt.us/tax/pvr.shtml. As the Department explains, the state 

 

Opp’n at 2 (filed Oct. 18, 2010). The first issue is one of characterization rather than fact. There is no 

dispute that the Town drafted a memorandum of law in opposition to RHS and PACE’s motion for 

summary judgment in the Pace appeal and emailed the draft to counsel for the State, but later called the 

State’s counsel and notified the State that the Town would not file the draft motion but would instead take 

the legal position that the property is exempt. The motion the Town actually filed with the court supported 

RHS and PACE’s motion for summary judgment, and requested that the court grant the motion. In any 

case, the court concludes that this circumstance does not raise any factual disputes material to the legal 

issues raised in this case. The court concludes that the other issues are questions of law, not fact.
14

assesses a tax to fund education costs based on the grand lists compiled by 

the listers in over 250 municipalities in the state. While the listers are 

required to list all taxable property each year at its fair market value, it is 

not feasible to do so given the ever-changing real estate market and 

because town-wide reappraisals are not conducted annually. Thus, to treat 

all municipalities equally, the Department must bring grand lists to fair 

market value. 

Dewey v. Town of Waitsfield, 2008 VT 41, ¶ 6 n.1, 184 Vt. 92. 

 As mentioned above, the listers in each municipality compile a grand list. The 

minimum contents of the list are spelled out in 32 V.S.A. § 4152. The grand list is to 

include “[t]he listed valuation of each parcel which is not exempt” and: 

For those parcels which are exempt, what the full listed value of the 

property would be absent the exemption and the statutory authority for 

granting such exemption and, for properties exempt pursuant to a vote, the 

year in which the exemption became effective and the year in which the 

exemption ends. 

32 V.S.A. § 4152(a)(5), (6). The grand list is used to raise municipal taxes. See 32 

V.S.A. § 4602. Municipalities also determine an “education property tax grand list.” 32 

V.S.A. § 5404(a); see also id. § 5401(5). Like the grand list, the value of the “education 

property tax grand list” is not supposed to include the value of nonresidential properties 

that are exempt by law. This is because the “education property tax grand list” includes 

values for “nonresidential” properties, id. § 5404(a), and because “nonresidential 

property” does not include “[p]roperty which is exempt from the municipal property tax 

by law and not by vote of the municipality.” Id. § 5401(10)(A). 

 Thus, for the purposes of both the grand list and the “education property tax grand 

list,” municipalities must make an initial determination about whether a nonresidential 

property is exempt. If the municipality has taken a vote to exempt the property, then that 
15

determination is simplified. If not, then the listers must attempt to determine whether 

there is statutory authority for the exemption. 

 After determining the grand list and the “education property tax grand list,” 

municipalities are required to transmit to the State the data contained in those lists. See

32 V.S.A. § 5404(b) (municipalities “shall transmit to the director in an electronic format 

as prescribed by the director: education and municipal grand list data, including 

exemption information . . .”). Based on those data, the State determines the “equalized

education property tax grand list for the state” by summing all of the “municipal 

equalized education property tax grand lists.” 32 V.S.A. § 5405(b) (emphasis added). To 

be clear: the “education property tax grand list” is determined by the municipality, and is 

distinct from the “equalized education property tax grand list,” which is determined by 

the State. Compare 32 V.S.A. § 5401(5) with § 5401(6). 

 Like the education property tax grand list determined by the municipality, the 

value of the “equalized education property tax grand list” determined by the State is not 

supposed to include the value of nonresidential properties that are exempt by law. As 

indicated above, the purpose of the equalization process is to “estimate the full fair 

market value of all property that is taxable for education purposes . . . .” Dewey v. Town 

of Waitsfield, 2008 VT 41, ¶ 6 n.1, 184 Vt. 92 (emphasis added); see also 32 V.S.A. 

§ 5401(6) (value of property that goes into calculating the “equalized education property 

tax grand list” is the value of “all nonresidential and homestead property that is required 

to be listed . . . .”); 32 V.S.A. § 5405(c) (same phrase regarding property “required to be 

listed at fair market value”). 
16

 With this background in mind, the court concludes as follows. In carrying out its 

mandate to determine the equalized education property tax grand list, PVR must make a 

determination as to the property’s tax-exempt status. While the municipality might have 

already made such a determination for the purposes of the lists it is required to generate, 

it is within PVR’s authority to reach a different conclusion for the purposes of the 

“equalized education property tax grand list.”9

 Town of Hartford v. Commissioner of Taxes, 135 Vt. 560 (1977), supports this 

result. In that case, the New England Power Company and the Town of Hartford had 

entered into a stipulation as to the correct assessed value of the company’s property in 

Hartford for the years 1970–1975. 135 Vt. at 561. That stipulation was entered and 

embodied in 1971 in a final decree of the Windsor County Court of Chancery. Under the 

provisions of 16 V.S.A. § 3458a,10 the tax commissioner redetermined the value of the

 

9

 The court notes that municipalities are required to indicate on their grand lists what the full listed value of 

the property would be absent the exemption the municipality believes applies. 32 V.S.A. § 4152(a)(6). 

The availability of that figure would facilitate the State’s calculations in the event the State determined the 

exemption did not apply. The fact that the municipalities must provide such data supports the court’s

conclusions, as there would be no reason to require the data if the State were required to defer to the local 

decision regarding exemptions. 

10 Section 3458a has since been repealed, but at the time read in relevant part as follows: 

Biennially, the commissioner of taxes shall determine the aggregate fair market value 

of all property which is taxable by each town and incorporated school district of the state. 

For purposes of this part, “taxable property” includes any property which has been 

exempted, whether in whole or in part, from taxation by action of the town in which that 

property is located. “Town” or “town school district” includes cities or city school 

districts, as the case may be. 

(1) The aggregate fair market value of taxable property as determined, or, if such be 

the case, as redetermined, by the commissioner for any town or district and for any year 

under this section shall be known as the equalized fair market value of that town or 

district for that year. 

(2) Any determination made by the commissioner under this section shall be based 

upon such sample appraisals, market studies, or other investigative, statistical or 

projective techniques as, in the judgment of the commissioner, and in view of the 

resources available for that purpose, shall be appropriate to support that determination. 
17

property for 1974 at a figure different than the figure for that year in the Court of 

Chancery’s final decree. The Town of Hartford appealed to the Windsor Superior Court, 

arguing that the values in the final decree are not properly subject to reappraisal. The 

Superior Court rejected the town’s contention, and affirmed the Commissioner’s 

appraisal. The Town of Hartford then appealed to the Supreme Court, again arguing that 

the values in the final decree are not properly subject to reappraisal. See id. 

 The Supreme Court likewise rejected the Town of Hartford’s argument and 

affirmed, reasoning as follows: 

The purpose of this appraisal was to implement an equalization of 

State funds as between municipalities. Various communities may vary in 

ways of appraisal that could put them at an advantage or disadvantage 

with respect to the distribution of State aid to education funds. It was the 

intended purpose of the reappraisal provisions to authorize the 

commissioner to bring the measuring of taxable resources of communities 

to a more nearly common measure. This, obviously, was to make the 

distribution of State funds for education as fair as possible. 

The essence of this statutory procedure is to free the commissioner 

from the appraisal binding on the municipality for its own tax purposes. 

There is no doubt that the court decree operating between the taxpayer and 

the town bound the town to a value of the property for town tax purposes, 

even though it was a stipulated appraisal rather than being determined 

independently by the trier. 

But the town is similarly bound by its own grand list, yet the 

statutory authority given the commissioner overrides it. Taking this 

statutory authority together with the acknowledged fact that neither the 

commissioner nor the Department of Taxes was a party to the litigation 

cited, it is the holding of this Court that the commissioner had full 

authorization to reappraise the property in question. To hold otherwise 

would frustrate the statutory objective. 

Id. at 562. Although Hartford was decided long before Act 60 became law, the purpose 

of § 3458a—to use an equalization process to make the distribution of State funds for 

education as fair as possible—is the same. And while Hartford involved a question of 

 

Hartford, 135 Vt. at 561–62. 
18

valuation rather than taxability, its lesson is equally applicable here: the State is not 

bound by the municipality’s determinations. 

 Subud of Woodstock, Inc. v. Town of Barnard, 169 Vt. 582 (1999) (mem.), does 

not require a contrary result. That case does establish that when PVR reviews the BCA’s 

determination of a property’s fair market value under 32 V.S.A. § 4461, it lacks 

jurisdiction to determine the property’s tax-exempt status. 169 Vt. at 583. However, 

those appeals address municipal taxation. PVR has a different role to play in petitions for 

redetermination of tax-exempt status for State property tax purposes, a distinction not 

addressed in Subud. The Court’s short entry order in that case did not address PVR’s 

statutory mandate to determine the “equalized education property tax grand list.” 

 Finally, the court rejects the Town’s claim that PVR did not make a decision 

about whether the Property is tax exempt. PVR expressly said that the Town had 

presented no evidence of tax exemption and that there was therefore “no evidentiary 

support” for a “finding by PVR that the property is exempt.” Letter from Director 

Johnson dated April 8, 2008. Although it could have been argued that PVR’s decision 

was not final because of its reference to the then-pending court case, the Town itself 

treated the decision as final by appealing it to the VAB. Thus, the Town waived any 

objection on that basis. 

B. Whether PVR is Bound by the Final Order in the Pace Appeal

 The State argues that the Pace appeal does not bind the State because the State 

was not a party to that action. State’s Mot. for Summ. J. at 10 (filed Sept. 7, 2010). The 

Town contends that the State had actual notice that the Town would not contest RHS and 

PACE’s claim of exemption, and was thus required to join the earlier action under 
19

V.R.C.P. 18 if it asserted a claim of relief other than that asserted by the Town, RHS, and 

PACE. Opp’n at 5 (filed Oct. 18, 2010). The Town also asserts that PVR was obligated 

to join the Pace appeal under 32 V.S.A. § 3613. Id. at 6. The State replies that V.R.C.P. 

18 is permissive and applies to joinder of claims and remedies by a party—which the 

State was not in the Pace appeal. Reply at 6 (filed Nov. 4, 2010). The State further 

contends that 32 V.S.A. § 3613 is inapplicable. Id. 

 Vermont’s Declaratory Judgments Act includes the following provision: “When 

declaratory relief is sought, all persons shall be made parties who have or claim any 

interest which would be affected by the declaration, and no declaration shall prejudice the 

rights of persons not parties to the proceeding.” 12 V.S.A. § 4721. Here, it is undisputed 

that the State was not a party to the Pace appeal. Pursuant to § 4721, then, the Final 

Order in that case cannot prejudice the State’s rights.11 The court agrees with the State 

that V.R.C.P. 18 did not require the State to join the Pace appeal. The court also agrees 

with the State that § 3613 does not apply—that provision can only be interpreted to 

involve the State’s right to appeal from assessments against state easements for flood 

control projects. Any other interpretation would lead to the illogical conclusion that the 

State had appeal rights from all listers’ decisions regardless of whether the State had any 

interest affected by those decisions. 

C. Whether Equitable Estoppel Applies

 The Town argues that the State is equitably estopped from asserting that a value 

for the Property should be included in the calculation of the Town’s common level of 

appraisal. Opp’n at 6 (filed Oct. 18, 2010). “The doctrine of equitable estoppel seeks to 

 

11 That problem does not arise in this case because the taxpayer is not affected by this court’s ruling, which 

relates only to the Town’s obligations to the State. 
20

promote fair dealing and good faith by preventing ‘one party from asserting rights which 

may have existed against another party who in good faith has changed his or her position 

in reliance upon earlier representations.’” Beecher v. Stratton Corp., 170 Vt. 137, 139 

(1999) (quoting Fisher v. Poole, 142 Vt. 162, 168 (1982)). The elements of equitable 

estoppel are well established in Vermont: 

The party invoking the doctrine has the burden of establishing four 

essential components: (1) the party to be estopped must know the facts; (2) 

the party being estopped must intend that his or her conduct shall be acted 

upon or the acts must be such that the party asserting the estoppel has a 

right to believe it is so intended; (3) the party asserting estoppel must be 

ignorant of the true facts; and (4) the party asserting estoppel must rely on 

the conduct of the party to be estopped to his or her detriment. 

Jones v. Dep’t of Forests, Parks and Recreation, 2004 VT 49, ¶ 15, 177 Vt. 81. In 

addition: 

[E]stoppels “against the government are rare and are to be invoked only in 

extraordinary circumstances,” . . . where the “injustice that would ensue 

from a failure to find an estoppel sufficiently outweighs any effect upon 

public interest or policy that would result from estopping the government 

in a particular case.” 

Id. (citations omitted). 

 The Town contends that the State engaged in conduct, or made representations, 

that led the Town to believe that PVR would abide by the result in the Pace appeal. See 

Opp’n at 7 (filed Oct. 18, 2010). Specifically, the Town asserts that (1) PVR agreed to 

postpone the hearing before the VAB pending a decision in the Pace appeal; (2) PVR did 

not inform the Town of PVR’s intention to treat the Final Order as a “non-decision” until 

after the time for appealing that order had passed; and (3) PVR is actively involved in 

instructing towns on grand list matters. Id. Even if all true, none of those facts indicates 

a representation by the State to the Town that the State was agreeing to be bound in a 
21

declaratory judgment action to which the State was not a party. The court therefore 

concludes that the Town has not met its burden of establishing the second element of its 

estoppel claim. 

D. The Claim of Inadequate Discovery

 The Town’s final argument against summary judgment is that the procedure is 

premature. Rule 56 does not require that summary judgment motions await completion 

of discovery, but it does require “an adequate time for discovery.” Bushey v. Allstate 

Ins. Co., 164 Vt. 399, 405 (1995). The three factual issues on which the Town asserts it 

has had inadequate discovery are: (1) whether RHS leases the Property to PACE for a 

profit; (2) whether RHS and PACE share a “single mission” or close relationship; and (3) 

the circumstances of the hearing before the VAB for the purposes of establishing the 

Town’s equitable estoppel claim. See Opp’n at 9–10 (filed Oct. 18, 2010). 

 The first two issues go to the three-part test articulated in American Museum of 

Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103 (1989). For the reasons discussed 

below, the court need not apply that test in this case, and thus no additional discovery on 

those issues is necessary. The third issue goes to the Town’s equitable estoppel claim. 

The court has already addressed that claim; no further discovery is necessary to resolve 

that issue. 

E. Taxability

The issue of the taxability of the Property in this case has simultaneously 

meandered its way through a variety of levels of review on two different tracks. The first 

track—the Pace appeal—was unusual in the sense that at the time the issue came before 

this court, the Town sided with the taxpayer and argued that the Property was exempt, 
22

and there was no party arguing that the Property was taxable. Thus the Pace appeal did 

not actually resolve any controversy. The second track—the § 5408(d) appeal in this 

case—pits the Town against the State. This process is far from ideal or efficient. 

However, the taxability issue has now been fully briefed, involves no material disputed 

facts, and is ripe for summary judgment. 

The issue presented in the State’s motion is whether the Property satisfies the 

requirements for tax exemption set forth in 32 V.S.A. §§ 3802(4) and 3832(2). Those 

sections can both be found in chapter 125 (“Exemptions”) of Title 32. The former 

section provides in pertinent part: “The following property shall be exempt from 

taxation: . . . (4) Real and personal estate granted, sequestered or used for public, pious or 

charitable uses . . . .” 32 V.S.A. § 3802(4). The latter section provides in pertinent part: 

The exemption from taxation of real and personal estate granted, 

sequestered or used for public, pious or charitable uses shall not be 

construed as exempting: . . . 

(2) Real estate owned or kept by a religious society other than a church 

edifice, a parsonage, the outbuildings of the church edifice or parsonage, a 

building used as a convent, school, orphanage, home or hospital, land 

adjacent to any of the buildings named in this subsection, kept and used as 

a parking lot not used to produce income, lawn, playground or garden and 

the so-called glebe lands. 

Id. § 3832(2). 

 In American Museum of Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103 

(1989), the Supreme Court articulated a three-part test for determining whether a property 

is entitled to a tax-exempt status as a public use. That test also applies to lands 

sequestered for pious and charitable uses. Herrick v. Town of Marlboro, 173 Vt. 170, 

174 (2001). It is not enough, however, to meet the Fly Fishing test; in order to qualify for 

exemption, a property must also fall outside the exceptions carved out by § 3832. See
23

Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica, 2005 VT 16, ¶ 12, 178 

Vt. 35 (sections 3802(4) and 3832 must be read together). The court therefore begins 

with § 3832. 

 Here, there appears to be no dispute that the Property is real estate and that for the 

time periods relevant to this appeal, it was owned by RHS. Nor does the Town appear to 

argue that RHS is not a “religious society.” See Town’s Ex. 7 at 5, attached to Town’s 

Surreply (“PVR correctly notes that the RHS/PACE property is religious property.”). 

Indeed, it is undisputed that RHS is a Vermont nonprofit corporation organized 

exclusively for religious purposes. The term “religious society” is “quite broad,” id. ¶ 19, 

and the court has no trouble concluding that RHS is a “religious society.” Because it is 

owned by a religious society, the Property can only be exempt if it fits within one of the 

uses permitted by § 3832(2). Of the various permitted uses, the only one the Town 

argues applies is that the Property is a “home or hospital.” 

1. Is it a Hospital?

A hospital is “an institution providing medical and surgical treatment and nursing 

care for ill or injured people.” Oxford American Dictionary 378 (1999) (emphasis

added); see also 18 V.S.A. § 1902(1) (defining “hospital” for purposes of Vermont’s 

hospital licensing statute as “a place devoted primarily to the maintenance and operation 

of diagnostic and therapeutic facilities for in-patient medical or surgical care of 

individuals suffering from illness, disease, injury or deformity, or for obstetrics.” 

(emphasis added)).12

 

12 The court is aware that the Supreme Court has declined to incorporate the definition used in Title 18 into 

the earlier enacted tax statutes of Title 32. Med. Ctr. Hosp. of Vt., Inc. v. City of Burlington, 152 Vt. 611, 

623–24 (1989). That was in the context of declining to distinguish between a hospital’s inpatient and
24

The VAB indicated that its members “may now know something more than 

Director Johnson and Judge Katz about the activities taking place inside the PACE 

building,” but did not articulate specific findings on that point. Still, it is undisputed that 

PACE leases the Property for the purpose of providing health and social services to the 

elderly. While it appears that establishing and maintaining a hospital might be consistent 

with the purposes for which PACE was organized, the facility at the Property in this case 

does not fit the definition of a “hospital.” The facility in this case provides health and 

social services to persons who are frail, nursing home eligible, and seeking a nonresidential adult day program. That is different than providing treatment or nursing care 

for the ill or injured.13

It is true that a hospital’s inpatient and outpatient facilities are indistinguishable 

for taxation purposes. Med. Ctr. Hosp. of Vt., Inc. v. City of Burlington, 152 Vt. 611, 

623 (1989). According to the Town, that means “[a] facility that provides only outpatient 

medical services is therefore a hospital for purposes of the exemption statutes.” The 

Town’s position, however, begs the question, since outpatients are by definition hospital 

patients. Oxford American Dictionary 557 (1999) (defining “outpatient” as “a hospital 

patient whose treatment does not require overnight hospitalization”). The Town’s 

argument is predicated on the assumption that the PACE facility provides outpatient 

medical services; that argument assumes the conclusion the Town wants to reach. For 

these reasons, the court concludes that the Property is not a hospital. 

 

outpatient facilities for tax purposes. The court cites the definition in Title 18 to reinforce the general idea 

that a hospital is a facility for the care of ill or injured people. 

13 The court also notes that the Town has not come forward with any evidence that PACE or RHS have 

obtained a license pursuant to 18 V.S.A. § 1903 to maintain the Property as a hospital, and that neither RHS 

nor PACE’s articles of organization, mission statements, or IRS documents describe their purpose or 

activities as operating a hospital. 
25

2. Is it a Home?

As with the term “hospital,” the court’s primary objective in construing the word 

“home” is to implement legislative intent. Shlansky v. City of Burlington, 2010 VT 90, 

¶ 8. To do that, the court looks first to the plain meaning of the language used in light of 

the statute’s legislative purpose. Id. In discussing the word “home” as it appears in 

§ 3832(2), the Supreme Court has noted that “home” is “general and vague” and “can 

describe virtually any facility in which persons stay overnight for any reason.” Cent. Vt. 

Hosp., Inc. v. Town of Berlin, 164 Vt. 456, 460 (1995). Here, it is undisputed that the 

PACE facility is a non-residential adult day program. It therefore does not meet even the 

most general definition of a “home.” 

Because the Property is owned by a religious society, and because it is neither a 

“home” nor a “hospital,” the court concludes that even if it were otherwise entitled to an 

exemption for public, pious or charitable uses under 32 V.S.A. § 3802(4), section 3832(2) 

operates to prevent the court from construing § 3802(4) as exempting the Property. 

Order

 The Town’s Motion for Enlargement of Time is granted. The Town’s Motion for 

Leave to File a Surreply is granted. The State’s motion for summary judgment is 

granted. The decision of the VAB is affirmed. 

Dated at Burlington this 28th day of January 2011. 

 ______________________________ 

 Helen M. Toor 

 Superior Court Judge