The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
SAGADAHOC ss. DOCKET NO. AP-04-007
Dt Cre, 15 fo han
/ ’ ee ,
INHABITANTS OF THE os
TOWN OF WEST BATH,
Plaintiff
Vv. DECISION AND ORDER
JAMES WILLIAMS and
ELIZABETH WILLIAMS,
Defendants
This matter is before the court on the defendants’ motidtt to ais this Rule 80B
appeal. The motion contends that the plaintiff Town of West Bath (“town” or “West
Bath”) failed to appeal ina timely way an adverse decision in the parties’ tax abatement
case.
As is usual in matters concerning the timeliness of an appeal, the procedural
history of the case and the law which governs an appeal need to be reviewed and
applied to its particular circumstances,
As to the procedural history, there appears to be no dispute, so it may be here
repeated as follows:'
The defendants, James and Elizabeth Williams (“Williamses”) filed an
application to abate their 2003 real property taxes with West Bath’s assessors which
request was denied on November 24, 2003. They then filed a timely appeal with the
Sagadahoc County Commissioners (“Commissioners”) on January 7, 2004. The
commissioners asked for a postponement of the hearing on the appeal for several
* Both parties make representations as to the procedural history in this case without any contradictions
either in their memoranda or at oral argument.
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months and the Williamses assented in writing to this request. After viewing the
property on April 21, 2004 the commissioners conducted a hearing on the appeal on
April 28, 2004.
Present at the hearing were the three commissioners, the Williamses, two of West
Bath’s selectmen, the town’s administrator and its assessing agent.
At the conclusion of the hearing, the commissioners voted unanimously to grant
the appeal for tax years 2001, 2002 and 2003. According to the plaintiff, the
commissioners’ decision, although dated April 28, 2004, was not distributed until July
15, 2004, and not received by the town until July 19, 2004.
The pending appeal to this court was filed on August 16, 2004. In it, the town
challenges only the commissioners’ authority to abate the Williamses’ taxes for 2001 and
2002.
The motion to dismiss claims that the appeal was filed too late in that the
commissioners denied the appeal on April 28, 2004, but the appeal to this court was
filed 106 days later which is well beyond the 30-day time period for Rule 80B appeals as
prescribed by the governing statute, 36 M.R.S.A. § 844(1). That statute provides for an
appeal to the Superior Court from a county commissioners’ property tax decision as
follows:
Fither 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. If the county commissioners fail to give written
notice of their decision within 60 days of the date the application is filed,
unless the applicant agrees in writing to further delay, the application is
deemed denied and the applicant may appeal to the Superior Court as if
there had been a written denial.
In turn, Rule 80B(b) provides that, “(t)he time within which review may be
sought shall be as provided by statute, except that if no time limit is specified by statute,
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the complaint shall be filed within 30 days after notice of any action or refusal to act of
which review is sought . . .”
From these provisions, the defendant’s argue that the town had actual notice of
the commissioners’ decision on April 28, 2004, so that it had to appeal within 30 days of
that date as the statute and rule, as read together, would provide.
The town disputes the Williamses’ interpretation of section 844 and argues first
that section 844 requires the commissioners to issue a “notice of decision” as that phrase
is referenced in subsection 3 of that section. Subsection 3 reads: “An appeal to the
county commissioners is subject to the provisions for notice of decision in section 842.”
The town then invites the court to review section 842 which they read as
requiring the commissioners to issue “. . . notice in writing of their decision upon the
application within 10 days after they have taken final action thereon.” Plaintiff's
Memorandum, p. 3 (citing 36 M.R.S.A. § 842). Thus, the town says, the commissioners
were required to give notice of their decision in writing. Accordingly, based on this line
_of reasoning, the appeal period prescribed by section 844 would then begin on July 19,
2004, the day the town got the notice in writing. If this is correct, an appeal filed on
August 16, 2004, would be timely. Further, the town says, if section 844(1) were not
interpreted as requiring a written notice of the commissioners’ decision, then the
provision in this subsection expanding the appeal period to 60 days when no written
notice is produced would be meaningless.
In the court’s opinion, the statutory interpretation offered by the defendants in
this dispute is the correct one. Section 844(1) advises parties to a county commissioners’
property tax appeal case that if they wish to appeal “the decision” there they must do so
in accordance with MLR. Civ. P. 80B. As noted, that rule unambiguously establishes a
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30-day appeal “after notice of any action . . . in which review is sought.” (Emphasis
supplied).
Neither the statute nor the rule cited requires that the decision or the notice be in
writing. Moreover, the provision relied on by the plaintiff, 36 M.R.S.A. § 844(3), for the
proposition that “a notice of decision” be produced by the commissioners which is
consistent with the provisions of section 842 is simply incorrect. Section 844(3) is
concerned only with “[a]n appeal to the county commissioners .. .” and not an appeal
from their action to this court. Indeed, in the court’s view, the sole purposes of section
844(3) is to advise its reader that in order to appeal to the county commissioners, the
town officials must have produced “notice in writing of their decision . . .,” 36 M.RS.A.
§ 842, and failing that notice, to prescribe when the appeal period begins to run. Surely
if the legislature had wanted to impose a similar requirement on the commissioners, it
could have done so.
With reference to the additional argument that the final sentence of section 844(1)
requires a written notice of decision by the commissioners, it is apparent from the text
of that sentence that that provision simply empowers a taxpayer to appeal directly here
if the commissioners do not provide a written decision within 60 days of the appeal to
them. According to the Law Court, the purpose of this language in section 844 is to
protect a taxpayer from the commissioners’ failure to act. Town of Vienna v. Kokernak,
612 A.2d 870, 874 (Me. 1992). A plain reading of this sentence, moreover, underscores
the same understanding of its language as offered by the Law Court. That is, the failure
of the commissioners to issue a written decision is deemed a denial of the taxpayer’s
appeal triggering his right to appeal here. Not only does the text not confer the same
opportunity on the town, but, obviously, the town would have no incentive or interest
in appealing a denial of an abatement request.
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From this, it is plain that the sole purpose of the written notice reference in the
last sentence of section 844(1) is to insure a taxpayer’s right to appeal further when a
written notice of decision is not issued. This provision does not require the
commissioners to issue a written decision nor does it confer on the town an extended
appeal period when the commissioners either fail to issue a written decision or delay
the issuance of their decision in written form.
Instead, in the court’s view, the statute simply requires the commissioners to
make a decision, the appeal from which must be made in accordance with MR. Civ. P.
80B. If they do not give written notice of that action to the taxpayer, he, and not the
town, is given 60 days to appeal running from the date of the application for appeal
unless the taxpayer agrees in writing to an enlargement. Otherwise, by the terms of
section 844 and Rule 80B, the town is specifically restricted to the 30-day appeal period
which runs from the date of the notice of a decision which need not be in writing.
In this case, the town did have actual notice of the adverse decision against it on
April 28, 2004, and had 30 days from then to appeal. See Caron v. City of Auburn, 567
A.2d 66, 67 (Me. 1989). In had no reason to believe, based on the short procedural
record provided, that the commissioners’ decision would change or be any different
than what was announced at the hearing on April 28. As such, there is no basis, and
none has been asked for, to excuse the late appeal.
This result is not incongruous with a reading of the statute as it may be generally
applied. Thus, in a somewhat different case, if the commissioners issued no written
notice of its decision in a case in which the taxpayer prevailed, but the latter waited
beyond 30 days for his reimbursement or to collect costs so that the town had no notice
of the result of the appeal, the town would nevertheless not lose its appeal rights
because, according to Rule 80B(b), it would have had no notice of the decision adverse
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to it. Thus, as long as the town has notice of a commissioners’ decision, in writing or
not, it must appeal within 30 days of that event as 36 MRS.A § 844(1) and MLR. Civ. P.
80B, when read together, require. Accordingly, in the court’s opinion, as here
articulated, pursuant to 36 M.R.S.A. § 844(1) and MLR. Civ. P. 80B(b), West Bath, or a
town in its position, must appeal from an adverse tax abatement decision of a board of
county commissioners within 30 days of that decision. Because West Bath failed to do
so, the pending motion must be granted and the appeal dismissed.
Based on the foregoing, the clerk is DIRECTED to make the following entry:
Motion to Dismiss is GRANTED, case is DISMISSED.
So ordered.
Dated: December 7 2004 Bye Cee
John R. Atwoéd
ustice, Superior Court