Swanek v. Lane County Assessor

IN THE OREGON TAX COURT

MAGISTRATE DIVISION

Property Tax

CATHY J. SWANEK, )

)

Plaintiff, ) TC-MD 210089N

)

v. )

)

LANE COUNTY ASSESSOR, ) ORDER GRANTING DEFENDANT’S

) MOTION FOR SUMMARY

Defendant. ) JUDGMENT

This matter came before the court on Defendant’s Motion for Summary Judgment

(Motion), filed September 21, 2022. Plaintiff filed her Response to Motion for Summary

Judgment (Response) on October 19, 2022. This matter is now ready for the court’s

determination.

I. STATEMENT OF FACTS, PARTIES’ POSITIONS

Plaintiff filed her Complaint on March 22, 2021, challenging the value of two parcels of

property, identified as Accounts 1205754 (lot 1202) and 1446879 (lot 1203) (subject properties)

for the 2020-21 tax year. (Compl at 1; Def’s Mot Summ J.) The 2020-21 tax roll real market

value (RMV) of Account 1205754 was $883,873 and the Board of Property Tax Appeals

(BOPTA) reduced it to $818,315. (Compl at 2.) Its maximum assessed value was $442,722.

(Id.) The 2020-21 tax roll RMV of Account 1446879 was $656,692; BOPTA found the same

value. (Compl at 3.) Its maximum assessed value was $341,367. (Id.) Plaintiff requests that the

assessed value and RMV of each lot be reduced to $370,000 and $290,000, respectively. (Compl

at 1.)

In a prior case, Plaintiff challenged the RMVs of the subject properties, for tax year

2019-20, arguing that their value had been significantly reduced by frequent shooting that

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TC-MD 210089N 1

occurred on the neighboring Bureau of Land Management (BLM) land. Swanek v. Dept. of Rev.,

TC 5423, 2022 WL 2903990 at *1-2 (Or Tax July 22, 2022) (Swanek I). In addition, Plaintiff

requested that the court consider the subject properties for any exemption or special assessment

programs that they may be eligible for due to the shooting, including “act of God” relief. Id. at

*1. Finally, Plaintiff requested that the court exercise its equitable powers, either by reducing the

value of the subject properties or by creating a new class of special assessment for them. Id.

The court found that Plaintiff did not submit any competent evidence of value; instead, she

focused on criticizing the assessor’s appraisal report. Id. at *3-4. Plaintiff did not meet the

burden of proof on her RMV claim. Id. at *4. With respect to Plaintiff’s additional claims for

relief, the court found no supporting legal authority. Id. Plaintiff did not appeal from the

Swanek I opinion.

Defendant moves for summary judgment by reason of the court’s judgment denying

Plaintiff’s appeal in Swanek I. (Def’s Mot Summ J.) Defendant argues that “[w]ith rising

market values for residential property, the real market value for the 2020-21 tax year would be

higher than the BOPTA decision.” (Id.) Defendant requests that “the court dismiss this case, or

find an appropriate value that is reflective of the regular division decision, given known market

increases.” (Id.)

In response, Plaintiff continues to criticize the assessor’s appraisal report used in Swanek

I. (See Ptf’s Resp at 1 (“Appraisal Report used in [Swanek I] as evidence of RMV did not

include any comp[arable sales] with our 2 negative issues”).) Plaintiff takes similar issue with

the assessor’s refusal to consider the sale of a neighboring property as a comparable sale in its

appraisal report. (See id. at 2 (“Lan[e] County assessor/appraiser would not consider sale of

home adjacent to our property * * * as a comp[arable sale]. This property is more similar to our

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TC-MD 210089N 2

property than those 20+ miles away”).) Plaintiff continues to maintain that she cannot find a

qualified appraiser to value the subject properties based on their unique features. (Id.) Plaintiff’s

primary goal appears to be some form of government protection, and until such protection is

provided, Plaintiff seeks a reduction in property taxes as an interim remedy. (See id. at 3 (“Until

Lane County and BLM correct the problem of shooting onto private property, at least property

taxes should be lowered to reflect the problem”).) 1

II. ANALYSIS

The issue is whether Defendant’s Motion for Summary Judgment should be granted.

Defendant’s Motion seeks dismissal of Plaintiff’s 2020-21 tax year appeal based on this

court’s opinion denying Plaintiff’s 2019-20 tax year appeal. “The general rule as to property tax

valuations is that each year stands by itself.” Mittleman v. Comm’n, 2 OTR 105, 106 (1965).

“[A] judicial determination of the value of real property for one year is not conclusive as to the

value of the property for a subsequent year.” Id. at 106-107. Notwithstanding the general rule,

the doctrine of issue preclusion may bar taxpayers from relitigating an issue “when an issue of

ultimate fact has been determined by a valid and final determination in a prior proceeding.”

Nelson v. Emerald People’s Util. Dist., 318 Or 99, 103, 862 P2d 1293 (1993). Issue preclusion

may apply if the following five requirements are met:

“1. The issue in the two proceedings is identical.

“2. The issue was actually litigated and was essential to a final decision on the

merits in the prior proceeding.

“3. The party sought to be precluded has had a full and fair opportunity to be

heard on that issue.

1

Plaintiff’s request for some form of government protection is outside of this court’s subject matter

jurisdiction. See ORS 305.410(1) (2019) (tax court has jurisdiction over “questions of law and fact arising under the

tax laws of this state”); see also Sanok v. Grimes, 294 Or 684, 698, 662 P2d 693 (1983) (taxpayer’s “tort claims are

outside the jurisdiction of the tax court * * *”).

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TC-MD 210089N 3

“4. The party sought to be precluded was a party or was in privity with a party to

the prior proceeding.

“5. The prior proceeding was the type of proceeding to which this court will give

preclusive effect.”

Id. at 104 (internal citations and footnote omitted).

Where the central issue is the same as it was in the prior proceeding and the taxpayer

does not present any new facts or issues when given the opportunity to do so, the first two

elements are satisfied. See Murray Family Trust v. Wasco Cty. Assessor, TC-MD 200132N,

2021 WL 237426 at *2 (Or Tax M Div Jan 25, 2021) (taxpayer sought to relitigate whether

property was an illegal lot of record). Here, Plaintiff asserts that the subject properties’ values in

the 2020-21 tax year were effectively reduced by the frequent shooting on the neighboring BLM

land; Plaintiff asserted the same position in her 2019-20 appeal. Plaintiff also refers to the sale

of an adjacent property as comparable; however, Plaintiff presented the same sale as evidence at

trial in her initial 2019-20 appeal in the Magistrate Division. See Swanek v. Lane Cty. Assessor,

TC-MD 200095N, 2021 WL 806954 at *1 (Or Tax M Div Mar 3, 2021) (“Plaintiff identified as a

comparable sale the neighboring house, which sold for $656,000 on July 31, 2020”) (internal

citations omitted). Finally, Plaintiff maintains there is no appraiser competent to value the

subject properties and, thus, does not plan to offer any new evidence of value.

Plaintiff continues to request some form of equitable relief; however, this issue was also

litigated in her 2019-20 appeal. See Swanek I, 2022 WL 2903990 at *4 (holding that “the power

of taxation ‘is a legislative power that cannot be exercised by the * * * judicial branch of

government’”) (citation omitted). The first two elements of claim preclusion are satisfied

because Plaintiff presented the same issues and evidence as in her 2019-20 appeal.

With respect to the third and fourth elements, Plaintiff took her 2019-20 appeal to trial

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TC-MD 210089N 4

before the Magistrate Division and again on appeal to the Regular Division, both times testifying

on her own behalf. Thus, Plaintiff had a full and fair opportunity to be heard on the issues and

was a party to the prior proceeding. The final element is satisfied because the prior case was

heard in this court by a judge who conducted a trial and made findings of fact and conclusions of

law in writing. Murray, 2021 WL 237426 at *3. Accordingly, Plaintiff is precluded from

relitigating the same issues for the 2020-21 tax year.

Because those are the sole issues presented by Plaintiff, Defendant’s Motion for

Summary Judgment must be granted.

III. CONCLUSION

Upon careful consideration, the court concludes that Plaintiff’s 2020-21 appeal is barred

by issue preclusion. Defendant’s Motion is granted. Now, therefore,

IT IS ORDERED that Defendant’s Motion for Summary Judgment is granted. Plaintiff’s

Complaint is dismissed.

Dated this _____ day of December 2022.

ALLISON R. BOOMER

PRESIDING MAGISTRATE

This is a dispositive order pursuant to Tax Court Rule – Magistrate Division 16

C(1). The court will issue a decision after waiting 14 days to determine whether

there is a dispute about costs and disbursements. Any claim of error in regard to

this order should be raised in an appeal of the Magistrate’s decision when all

issues have been resolved. See TCR-MD 19.

This document was signed by Presiding Magistrate Allison R. Boomer and

entered on December 28, 2022.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

TC-MD 210089N 5