Helms Deep, LLC v. Dept. of Rev.

210 February 13, 2023 No. 16

IN THE OREGON TAX COURT

REGULAR DIVISION

HELMS DEEP, LLC,

Plaintiff,

v.

DEPARTMENT OF REVENUE,

State of Oregon,

Defendant.

and

MULTNOMAH COUNTY ASSESSOR,

Defendant-Intervenor

(TC 5449)

Defendant-Intervenor Multnomah County (the county) sought dismissal

of Plaintiff’s property tax appeal for tax year 2017-18 as untimely under the

extended deadline in ORS 305.288(1). The county asserted that it was entitled to

summary judgment because Plaintiff’s property was not a “dwelling.” The court

denied summary judgment without reaching the merits of the issue because the

county relied primarily on facts determined in the prior Magistrate Division

proceeding, and the county’s only admissible evidence (a declaration of a county

appraisal employee) was unspecific as to the time of the employee’s observations

of the property and otherwise was conclusory. The county’s evidence, considered

independently, did not suffice to enable the court to conclude that no objectively

reasonable factfinder could determine that the property was not a dwelling. In

addition, Plaintiff presented an appraisal card that created a genuine issue of

material fact.

Oral argument on Defendant-Intervenor’s motion for

summary judgment was held December 12, 2022, in the

courtroom of the Oregon Tax Court, Salem.

Alex C. Robinson, CKR Law Group, Lake Oswego, filed a

response and argued the cause for Plaintiff.

Carlos A. Rasch, Assistant Multnomah County Counsel,

Portland, filed the motion and argued the cause for

Defendant-Intervenor.

Decision rendered February 13, 2023.

ROBERT T. MANICKE, Judge.

This property tax case comes before the court on a

motion for summary judgment filed by Defendant-Intervenor

Cite as 25 OTR 210 (2023) 211

Multnomah County (the county1) asking the court to dismiss

Plaintiff’s appeal as untimely under any basis for relief,

including ORS 305.288(1).2 Plaintiff opposes the motion;

Plaintiff has not cross-moved.

I. PROCEDURAL FACTS

Plaintiff filed two appeals in the Magistrate Division

related to the subject property. Plaintiff first appealed the

value of the property for tax year 2018-19, in Magistrate

Division case TC-MD 190153N. In that case, the magis-

trate held a trial at which each party presented valuation

experts, and the magistrate issued an unappealed decision

determining the subject property’s real market value for tax

year 2018-19.

While the case involving tax year 2018-19 was pend-

ing before the magistrate, Plaintiff filed a separate com-

plaint in the Magistrate Division, appealing the value of the

property for tax year 2017-18, in case TC-MD 200292N. The

magistrate there granted summary judgment for the county

on the grounds that the property was ineligible for correc-

tion under ORS 305.288(1). The magistrate then entered a

decision denying Plaintiff’s appeal.

Plaintiff has appealed to this division of the court

from the magistrate’s decision in case TC-MD 200292N,

involving tax year 2017-18. At oral argument before this

division, it was undisputed that Plaintiff had not petitioned

the county board of property tax appeals to reduce the

property’s values for tax year 2017-18 as permitted by ORS

309.026. That fact precluded an appeal to the Magistrate

Division for tax year 2017-18 under the “usual” route pursu-

ant to ORS 305.275(1)(a)(B). See ORS 305.275(3). The parties

also agree that ORS 305.288(1) provided the only possible

route for an appeal directly to the Magistrate Division. See

generally Work v. Dept. of Rev., 22 OTR 396, 404-05 (2017)

1

Defendant Department of Revenue, which is the named defendant under

Oregon Revised Statutes (ORS) 305.501(1) (2021), “asked Multnomah County

to defend” the case and did not participate in briefing or oral argument on the

county’s motion.

2

Unless otherwise indicated, citations to the ORS are to the 2017 edition.

212 Helms Deep, LLC v. Dept. of Rev.

(describing four possible “routes to obtain relief” from value

determinations), aff’d, 363 Or 745, 429 P3d 375 (2018).3

II. FACTS RELEVANT TO ORS 305.288(1)

The parties agree that the subject property consists

of real property owned by Plaintiff and identified by the

county as account number R171366.

An appraisal employee of the county, Scott Elliott,

made a sworn declaration, which the county submitted

in support of its motion, stating the following facts that

Plaintiff did not contest in its response.

“In March 2016, the County received building permits for

the subject property. Because the permits were residential

in nature, the property was placed in the County’s residen-

tial property portfolio. At this time, the County had no fur-

ther information about the property or its intended use.

“On July 6, 2017, [Elliott] attempted to inspect the property

while it was still under construction to get a better under-

standing of what was being built for valuation and taxation

purposes. However, [Elliott] was denied an opportunity to

conduct the inspection and further information by owner

representatives onsite.

“Based on the limited information the County had in 2017

provided only by the building permit types, the County

characterized the subject property as residential for pur-

poses of valuation and taxation.

“Upon completion of construction in 2018, Plaintiff appealed

the 2018 taxes and the County was able to inspect the sub-

ject property for the first time.”

3

A third “route” to relief lies under ORS 306.115(3), which allows the

Department of Revenue to order a roll change in certain circumstances. This

court may review the Department’s decision under that provision under an

abuse-of-discretion standard. See ADC Kentrox I v. Dept. of Rev., 19 OTR 91,

93-98 (2006). Counsel for Plaintiff represented at oral argument that Plaintiff

has petitioned the Department for relief under ORS 306.115(3), and that action

on that petition is awaiting this court’s decision under ORS 305.288(1). A fourth

route lies under ORS 305.288(3), which allows this court to order a correction

upon a determination that “good and sufficient cause” exists for the taxpayer’s

failure to pursue any statutory right of appeal. Plaintiff has not sought relief

under this fourth route.

Cite as 25 OTR 210 (2023) 213

Elliott also testified as follows:

“At this inspection, appraisers for the County were able to

determine and conclude that the property was not residen-

tial, had not been primarily used as residential, and was

not intended to be used as residential. This determination

was based on the condition of the property, observations

by County appraisers, discussions with onsite represen-

tatives, and amenities and build type, including a skate

park, conference rooms, and event space[.] As a result, the

County removed the property from the residential portfolio

and placed it in the commercial property portfolio, where it

remains as of this date.”

As to this latter testimony, Plaintiff did not contest that an

inspection occurred, that county appraisers concluded as

stated above, or that the county placed the property into

the commercial portfolio. Plaintiff did, however, express

disagreement with the substance of two conclusions Elliott

described: that the property was not residential and was not

intended to be used as residential.

As an exhibit to its response to the county’s motion,

Plaintiff submitted a copy of a two-page document entitled

“Property Appraisal Card 2017.” The county did not contest

the authenticity of the document. The Appraisal Card refers

to property account number R171366 and contains, among

other things, the following text:

• “Acct Details * * * RESIDENTIAL IMPROVED * * *

Last Appraised: 07/06/17”

• “IMPROVEMENT INFORMATION * * * I1 SFR Single

Family Residential Class G * * * Mkt Value: 8829610

* * * 2015 – PURCHASED FOR CONVERSION TO

PRIVATE RESIDENCE”

As part of its reply, the county attached a declara-

tion of counsel authenticating two exhibits: (1) an excerpt

from the County’s appraisal in the 2018 appeal, depicting

photographs of the subject property and (2) screenshots

from the NM Bodecker Foundation’s website, highlighting

the foundations mission and use of the subject property. The

screenshots bear the copyright date 2022.

214 Helms Deep, LLC v. Dept. of Rev.

At oral argument, the parties agreed that the prop-

erty was under construction on January 1, 2017. Counsel

for Plaintiff acknowledged that the property would not have

satisfied all of the conditions of ORS 305.288(1) for tax years

after tax year 2017-18.

Each party made numerous additional factual

assertions in briefing which are not evidence, and which

the court therefore cannot use. The county included a nar-

rative description of the physical attributes of the improve-

ments before and after work done by Plaintiff; described

the “purpose” of the new improvements and the “mission”

of a group purportedly involved with their construction; and

described the “function” of the property. The county cited

only the magistrate’s decisions for these assertions, and the

admissible evidence discussed above is silent with respect

to those assertions. The court must disregard all of these

assertions. See ORS 305.425(1) (“All proceedings before the

judge of the tax court shall be original, independent pro-

ceedings and shall be tried without a jury and de novo.”);

Village at Main Street Phase II v. Dept. of Rev., 356 Or 164,

167-68, 339 P3d 428 (2014); Salisbury v. Dept. of Rev., 24

OTR 497, 505 (2021); Shevtsov v. Dept. of Rev., 25 OTR 173,

174-75 (2022). Plaintiff made representations about matters

such as which changed property ratio the county applied for

tax year 2017, the intentions of the individual who arranged

to have the improvements built, and the content of the cer-

tificate of occupancy. Plaintiff cited nothing and presented

no exhibits in support of these assertions. The court must

disregard all of these assertions as well.

III. ISSUE

Is the county entitled to summary judgment that

Plaintiff’s property failed to satisfy the conditions for appeal

under ORS 305.288(1) for tax year 2017-18?

IV. ANALYSIS

The county seeks summary judgment under the fol-

lowing provision:

“(1) The tax court shall order a change or correction

applicable to a separate assessment of property to the

assessment and tax roll for the current tax year or for

Cite as 25 OTR 210 (2023) 215

either of the two tax years immediately preceding the cur-

rent tax year, or for any or all of those tax years, if all of the

following conditions exist:

“(a) For the tax year to which the change or correction

is applicable, the property was or is used primarily as a

dwelling (or is vacant) and was and is a single-family dwell-

ing, a multifamily dwelling of not more than four units, a

condominium unit, a manufactured structure or a floating

home.

“(b) The change or correction requested is a change in

value for the property for the tax year and it is asserted in

the request and determined by the tax court that the dif-

ference between the real market value of the property for

the tax year and the real market value on the assessment

and tax roll for the tax year is equal to or greater than 20

percent.

“(2) If the tax court finds that the conditions needed

to order a change or correction under subsection (1) of this

section exist, the court may order a change or correction in

the maximum assessed value of the property in addition

to the change or correction in the real market value of the

property.”

ORS 305.288.

The parties do not dispute that tax year 2017-18 is

one of “the two tax years immediately preceding the cur-

rent tax year” and thus is subject to correction under ORS

305.288(1) if all of the conditions in paragraphs (a) and (b)

exist. The county raises no issue as to the conditions in

paragraph (b). Therefore, the only issue is whether the two

“dwelling” conditions in paragraph (a) were satisfied: that

the property (1) “was or is used primarily as a dwelling (or

is vacant)” and (2) “was and is a single-family dwelling [or] a

multifamily dwelling of not more than four units * * *.” 4 The

county contends that neither of the “dwelling” conditions

was or is satisfied.

Before discussing the parties’ specific arguments,

the court observes that neither party has offered defini-

tions of the key terms “dwelling,” “single-family dwelling,”

4

Neither party has contended that the property was or is “a condominium

unit, a manufactured structure or a floating home.”

216 Helms Deep, LLC v. Dept. of Rev.

“multifamily dwelling,” “use,” or “vacant.” Without pinning

down the meaning of these terms, it is difficult to know

what facts cause a structure to be a dwelling or not, or what

facts constitute “use” as a dwelling or “vacancy.”5 The par-

ties also expressed disagreement at oral argument whether

the relevant date to determine the property’s eligibility

under ORS 305.288(1)(a) is January 1, 2017, or July 1, 2017,

or some other date. However, neither party briefed the issue.

Nonetheless, even without definitions of key terms or resolu-

tion of the relevant date “[f]or” tax year 2017-18 under ORS

305.288(1)(a), deficiencies in the evidence require the court

to deny the county’s motion.

A. Whether the property was “used” “primarily” as a dwell-

ing or was “vacant.”

The county first argues that, as to the first condi-

tion in ORS 305.288(1)(a), the property “was never primar-

ily used as a * * * dwelling * * *, if ever used for that pur-

pose at all.” Instead, the county asserts, the property “was

and continues to be used for its specific special use of artist

meeting space, recording studio, skate park, and workshop.”

Ignoring, as it must, the conclusions of the magistrate now

proffered by the county, the court finds that the evidence

supporting this argument reduces to Elliott’s statement

that the property “had not been primarily used as residen-

tial * * *.” This statement is nothing more than a conclusion.

It offers no observations or other specific facts as to whether

anyone “live[d] in” or had lived in the property—ever—much

less whether anyone did or had done so in a manner that

5

In Shevtsov v. Dept. of Rev., 24 OTR 83 (2020), the court determined the

meaning of “dwelling,” as of the date of enactment of what is now ORS 305.288(1),

in deciding that property lacking any “building or structure” was ineligible for

relief:

“Webster’s defines ‘dwelling’ as ‘a building or construction used for residence.’

Webster’s Third New Int’l Dictionary 706 (unabridged ed 2002). The American

Heritage Dictionary defines the term more broadly as ‘[a] place to live in; an

abode.’ American Heritage Dictionary of the English Language 558 (5th ed

2011).”

24 OTR at 86. The court had no occasion to decide whether a particular structure

qualified as a dwelling. Likewise, the court observed that the term “vacant” may

be ambiguous but saw no need to determine its meaning for purposes of that case,

including whether property that is under construction can qualify as “vacant.”

Id. at 85.

Cite as 25 OTR 210 (2023) 217

might be considered less than the property’s “primary” use.

See American Heritage Dictionary at 558.6

B. Whether the property had the status of a “dwelling,”

including a “single-family dwelling” or a “multifamily

dwelling.”

Turning from the use of the property to its charac-

ter or status as a “dwelling,” the court finds that the county’s

position again turns largely on Elliott’s declaration:

“At this inspection, appraisers for the County were able to

determine and conclude that the property was not residen-

tial, had not been primarily used as residential, and was

not intended to be used as residential. This determination

was based on the condition of the property, observations

by County appraisers, discussions with onsite representa-

tives, and amenities and build type, including a skate park,

conference rooms, and event space[.]”

This evidence in Elliott’s declaration is inadequate for the

following reasons:

• Conclusory. The bases Elliott cites for the county’s

determination consist of “the condition of the prop-

erty” and “amenities and build type, including a

skate park, conference rooms, and event space.”

The court considers these in sequence. The refer-

ence to the property’s “condition” is vague because

“condition” could refer to literally any unspecified

attribute of the property. The listed “amenities”

are features that are included in the property, but

Elliott does not explain whether necessary attri-

butes of a dwelling are absent from the property.

6

Plaintiff counters that the property was “vacant” both on January 1, 2017,

and on July 1, 2017, and therefore need not have been “used primarily as a dwell-

ing.” In support of its argument, Plaintiff refers to the uncontested fact that the

property was under construction on January 1, 2017, and until sometime after

July 1, 2017. The county did not address this argument in briefing; at oral argu-

ment, the county argued that “vacant” does not include “under construction.”

The parties did not develop their arguments, leaving open both legal and factual

questions about whether “vacant” and “under construction” are mutually exclu-

sive. However, because the county has offered no useable evidence to support its

conclusion that the property “had not been primarily used as residential,” the

court need not now address whether the property was “vacant.”

218 Helms Deep, LLC v. Dept. of Rev.

The statement thus does not exclude the possibility

that the property might be useable as a dwelling,

or even primarily useable as a dwelling, despite

additional features not typically found in a dwell-

ing. The court also finds vague the references to

“observations” by county appraisers (of what?), “dis-

cussions” (about what?) and “onsite representatives”

(of whom?). Given that the latter references add no

substantive content, the court finds it unnecessary

to try to parse whether any or all of them constitute

inadmissible hearsay.

• Unspecific as to time. Elliott does not testify on what

date the county appraisers made their observations.

Paragraph 6 of his testimony seems to imply that

the county “was able to” inspect the property only

because Plaintiff had “appealed the 2018 taxes.”

This suggests that Elliott made his observations

within or after the statutory window for an appeal

to the board of property tax appeals, which runs

from the date the assessor mailed out the bills for

the year (no later than October 25, 2018) through

December 31, 2018. See ORS 311.250(1), 309.100(2).

This would place the county’s inspection at approxi-

mately 18 months after the July 1, 2017, start of tax

year 2017-18, and approximately two years after the

January 1, 2017, start of the corresponding assess-

ment year. See ORS 308.007. Moreover, Elliott does

not testify that the county’s observations were “as

of” any particular earlier date; his statement that

the property “had not been primarily used” as res-

idential could refer to any earlier time preceding

the county’s observations in late 2018 or in 2019.

Construction concededly occurred during most or

all of 2017, and possibly during 2018. Even if the

property’s physical features by the time of the

inspection in late 2018 or in 2019 were such that it

could not have been used primarily as a residence,

there is simply no evidence that it could not have

been used primarily as a residence at some relevant

time during either the assessment year 2017 or the

tax year 2017.

Cite as 25 OTR 210 (2023) 219

The other evidence as to the character or status of

the property as any kind of “dwelling” consists of the photo-

graphs and screen shots attached to the county’s declaration

of counsel. These exhibits suffer from similar inadequacies.

The photographs are an excerpt from the County’s appraisal

in the 2018 appeal. Presumably, that appraisal addressed

the state of the property as of the assessment date for tax

year 2018-19, which was January 1, 2018—six or 12 months

after the date relevant for this appeal.

The photographs themselves include at least some

scenes that seem to indicate a “place to live in”: one shows

a small sink, countertop and mirror as one might find in a

bathroom; another, a room with an oven and stovetop, count-

ers, cabinets and drawers, a table flanked by backed chairs,

and a booth resembling an eating nook; a third appears to

show a rooftop garden with a child coming down a slide.

A number of photographs show exterior scenes that do not

seem to obviously indicate one way or the other whether the

use or character of the property is as a dwelling. The fact

that other photographs appear to include a sound studio, a

skate park, and perhaps an art or craft studio space does

not logically preclude that the structure as a whole could

have been primarily used as a dwelling.

The screen shots show a copyright date of 2022 and,

to the extent otherwise dated, purport to show activities

occurring in summer 2021. The only reference to an ear-

lier date is a shot discussing the establishment of a founda-

tion in 2017, the relevance of which is not apparent from the

admissible evidence.

C. Application of Summary Judgment Standard

The court’s task is to determine whether there is

“no genuine issue as to any material fact,” and the county

is “entitled to prevail as a matter of law.” Tax Court Rule

(TCR) 47 C. To do this, the court must test whether, view-

ing the record “in a manner most favorable to” Plaintiff as

the nonmoving party, “no objectively reasonable juror could

return a verdict for” Plaintiff. Id.

The court finds that the admissible evidence in the

record either falls short of supporting a reasonable finding

220 Helms Deep, LLC v. Dept. of Rev.

of fact in support of the county’s motion or, at most, shows

a genuine issue of material fact that precludes summary

judgment. Because the admissible evidence that the county

introduces is conclusory and does not clearly relate to a date

relevant to tax year 2017-18, as discussed above, it fails the

“no reasonable juror” test. This is true even if the court

ignores any evidence supplied by Plaintiff. See Van Osdol

v. Knappton Corporation, 91 Or App 499, 502, 755 P2d 744

(1988) (“Even if facts are undisputed, if the inferences aris-

ing from them are susceptible to more than one reasonable

conclusion, summary judgment should not be granted.”).

The only evidence Plaintiff submitted in response

to the county’s motion is the 2017 appraisal card. However,

this exhibit contains text from which a factfinder reasonably

could infer that the county, after having “[a]ppraised” the

property on “07/06/17,” determined that it was “residential.”

Even if any reasonable factfinder could conclude from the

county’s evidence that the property was not a dwelling as of

the relevant date in 2017, the court finds that the appraisal

card suffices to create a genuine issue of material fact as

to that point.7 Thus, through this one exhibit, Plaintiff has

satisfied the requirement in TCR 47 D to “set forth specific

facts showing that there is a genuine issue as to any mate-

rial fact for trial.”

V. CONCLUSIONS

The court will deny the county’s motion. Because

the motion fails for lack of evidence, this order does not

resolve any of the legal issues that the parties have raised

in briefing, or to which the court has referred in this order,

including:

(1) The meaning the legislature intended for the terms

“dwelling” (including any criteria for distinguishing a

dwelling from other kinds of structures), “single-family

dwelling,” “multifamily dwelling,” “use,” “vacant” and

“primarily”; and

7

Although Plaintiff failed to include a declaration authenticating the copy

of the appraisal card attached to its response, the county did not dispute that the

exhibit is an accurate copy of the appraisal card it purports to be. As a public

record, the court finds the exhibit admissible pursuant to OEC 803 even though

it is hearsay and Plaintiff offered no witness testimony.

Cite as 25 OTR 210 (2023) 221

(2) The date as of which the use of property is deter-

mined for purposes of ORS 305.288(1).

This court is required to decide the case with a writ-

ten decision. See TCR 62. Any legal analysis in the decision

will likely be published and serve as precedent for future

cases. For those reasons, the court will require the parties

to present their own analysis of the legal issues in future

proceedings in this case, so that the court can benefit from

the adversarial process. If the case proceeds directly to trial,

the court will require pre- and post-trial briefing to set forth

that analysis. Alternatively, the court may, in its discretion,

hear new motions under the court’s rules, should either or

both parties choose to proceed by motion. See Citizens Valley

Bank v. Mueller, 63 Or App 152, 156, 662 P2d 792 (1983).

The court directs the parties to confer regarding

further proceedings and to attempt to present the court with

an agreed plan for further proceedings. If the court has not

received an agreed plan in writing on or before March 15,

2023, the court will convene a case management conference

to set a trial date. Now, therefore,

IT IS ORDERED that Defendant-Intervenor’s Motion

for Summary Judgment is denied.