The opinion
STATE OF MAINE
Knox. S.8., Clerks Office
STATE OF MAINE SUPERIOR COURT SUPERIOR COURT
CIVIL ACTION
KNOX, ss. APR 2°7 2004 DOCKET NO. AP-03-015
SED IO= 3 2004
i
MARY H. STRONG, RECEIVED AND FILED
n Guillette, Clerk
Plaintiff Susa ,
V. DECISION AND ORDER
INHABITANTS OF THE
TOWN OF THOMASTON,
Defendant
MAY 21 2004
Pending in this M.R. Civ. P. 80B action is the plaintiff’s Motion for Trial and
Order Specifying Future Course of Proceedings. For the reasons stated herein, the
motion is to be denied in part and granted in part.
The history of this case and a brief description of the plaintiff’s claims will assist
in an explanation of the result here reached.
Mary H. Strong owns residential property in Thomaston. She claims that in 2002
the town reassessed residential property, resulting in an increase in the valuation of her
property and, therefore, an increase in her real estate taxes for that year. She contends
that this increase in the valuation of her property, and other residential properties in
Thomaston, was due to a formula for revaluation that was flawed and which violated
our constitutional provision that real estate taxes are to “be apportioned and assessed
equally according to the just value thereof.” Me. Const. Art. 9, § 8. More particularly,
she says that the town assessor reassessed residential properties but not commercial
properties because there was insufficient data to reassess the latter.
According to the plaintiff, the result of this approach to property assessment was
to increase valuations of residential property while decreasing relative valuations of
commercial property in 2002. The plaintiff further asserts that the assessor had other
tools to properly value commercial property and his failure to use these and the
approach taken in appraising residential property vis-a-vis commercial property in 2002
resulted in the constitutional violation cited.
The plaintiff appealed her 2002 assessment to the town’s Board of Assessors and
asked for abatement. She claims that although the Board told her that her abatement
request would be heard, she learned that her appeal was denied because, in the Board’s
view, there was no legal basis for it to provide her relief. Accordingly, she says, she was
denied a hearing at which she could have established a record to pursue her grievance
further.
The plaintiff next appealed to the Knox County Commissioners who held a
hearing on her abatement request on July 1, 2003. Apparently the county clerk tape-
recorded this hearing, and the Commissioners denied the appeal on July 8, 2003.
Thereafter, the plaintiff filed her complaint in this court, joining her Rule 80B
appeal with two other counts which seek an injunction directing Thomaston to employ
an assessment system for the tax year in question which will be “equal and equitable”
and asking for a declaration that the assessment of her property for this tax year
violated Maine law, including our constitution.
Via the pending motion, the plaintiff asks for a trial of the facts on Count One of
her complaint which sets out her Rule 80B appeal. M.R. Civ. P. 80B(d) provides that
“the court shall order a trial to permit the introduction of evidence that does not appear
in the record of governmental action and is not stipulated.” As a prerequisite to such an
order, however, the moving party must:
... file a detailed statement, in the nature of an offer of proof, of the
evidence that the party intends to introduce at trial. That statement shall
be sufficient to permit the court to make a proper determination as to
whether any trial of the facts as presented in the motion and offer of proof
is appropriate under this rule and if so to what extent.
To satisfy these requirements, the plaintiff filed a lengthy “Statement of
Evidence” which she acknowledges, contains, for the most part, evidence presented at
the hearing before the Commissioners. Indeed, the cited Statement of Evidence appears
to rearticulate, albeit in a more detailed fashion, the factual allegations in Count One of
the Complaint. The plaintiff complains, however, that she is hampered in providing a
record on which her appeal may rest because she was denied a hearing by the Board of
Assessors and the County Commissioners did not make a transcript of their hearing as
the tape-recording was used only to prepare the Commissioner’s decision and then
destroyed.
At oral argument on the motion, counsel for the plaintiff added that he also
wants a trial of the facts to present new evidence, in the form of expert testimony, that
was not presented to the Commissioners. He also advised that a trial of the facts would
permit him to augment what was presented to the Commissioners which he needs to
rebut information presented by the town at the county level.
With reference to the plaintiff's wish to present expert testimony and to rebut
information presented by the town in order to better establish the town’s errors in
applying an allegedly flawed system to assess property, it must first be observed that
the purpose of a trial of the facts is not to provide a party a second opportunity to
relitigate the merits of its case by offering evidence that it could have, or should have,
presented below. It must also be remembered that a Rule 80B case is in the character of
an appellate action with restrictions on what the court may consider in acting on such a
complaint. M.R. Civ. P. 80B(f).
So, as here, where there is no showing that the plaintiff was prevented from
presenting evidence that she now wishes to offer here, it would be contrary to the
appellate nature of this action to permit her to do so; that is, to permit her to reestablish
the record on appeal by the presentation of evidence she failed to present below
contravenes the purpose and structure of an 80B action. Were Rule 80B to be
interpreted otherwise, there would be no incentive to fully present one’s case at the
municipal level as one could be secure in the knowledge that any oversights in that
presentation could be remedied at the Superior Court by a trial to present previously
available evidence to strengthen one’s position. If this were permitted, obviously the
opposing party would be given the same opportunity to present additional evidence
which, in the end, would eviscerate the appellate nature of Rule 80B actions. All this
being so, the court will not permit the plaintiff to have a trial of the facts in this court to
present an expert witness or to augment her case to rebut the town’s presentation made
at the county hearing as she should have pursued these options at that time.
The plaintiff also says she needs a trial of the facts in this court because she was
denied a hearing at the municipal level and was therefore deprived of her opportunity
to create a record. This claim, however, ignores the process in Maine which provides a
de novo review by the County Commissioners of a tax abatement case. Sager v. Town of
Bowdoinham, 2004 ME 40, { 5, A.2d . Thus, an aggrieved taxpayer, such as the
plaintiff, has a full opportunity to litigate her claim at the county level and, by virtue of
this process, is not prejudiced in her creation of a record by the town’s failure to
conduct a hearing on her claim.
The plaintiff claims she should have a trial of the facts here for the additional
reason that there is no verbatim transcript of the hearing before the County
Commissioners. Maine law, however, provides that, “[a] party’s failure to obtain, or
have made, a record of proceeding that could have been recorded does not entitle that
party to seek a trial of the facts.” Baker’s Table, Inc., v. City of Portland, 2000 ME 7, { 9,
n.5, 743 A.2d 237, 241, n.5. The plaintiff, however, responds that she did not record this
hearing when her counsel observed the county clerk tape-recording the hearing.’ Thus,
she says, her failure to create this record ought to be excused and she should either have
a trial of the facts here or the case should be remanded back to the Commissioners for a
new hearing.
It is true that when a county or municipality undertakes a recording of a hearing
it conducts, it should do so ina way that can produce a reviewable transcript. Ram’s
Head Partners, LLC v. Town of Cape Elizabeth, 2003 ME 131, J 18, 834 A.2d 916, 921. Buta
transcript is not indispensable to judicial review when there are findings of fact and
conclusions of law which are “sufficient to apprise the court of the decision’s basis.” Id.,
{ 16, 834 A.2d at 921. See Christian Fellowship v. Town of Limington, 2001 ME 16, J 19, 769
A.2d 834, 840.
In this case, the court must conclude that the County Commissioner’s decision
provides a detailed explanation of the facts presented to them and a rationale for this
decision which appears to address all of the plaintiff’s essential points in her case.
Indeed, she cites no omissions in the Commissioner’s decision which would affect the
justiciability of her appeal. That being so, the court cannot find that the plaintiff is
prejudiced in her prosecution of this appeal by the absence of a transcript of the
Commissioners’ hearing. Accordingly, this contention will serve neither as a basis for a
remand nor as a justification for a retrial of the merits of this case in this court via M.R.
Civ. P. 80B(d).
More importantly, because the court is satisfied with the thoroughness of the
Commissioners’ decision, it can find no basis for a trial of the facts on the issues raised
' The court was not informed as to why the plaintiff did not arrange for a court reporter to attend the
county hearing or if she ever asked the county clerk to retain the tape so that she could have a transcript
made.
in the pending motion. So, for example, in her memorandum supporting the pending
motion, the plaintiff states that a transcript would show admissions or
acknowledgements by the town’s assessor, but does not tell the court what those
admissions or acknowledgements might be and how they would either assist her case
or make the record more complete or more fair. The same is true of the plaintiff's
contention that she would present additional evidence at a trial in. this court which
would show, inter alia, that the increase in valuations of residential real estate was based
on a shorter period of time than that applied to commercial real estate which ultimately
resulted in a flawed, and therefore, unequal, assessment of residential property. It
appears, however, that this information was presented to, and considered by, the
Commissioners who found that the town’s assessment system did not violate state
guidelines. See R., pp. 10-11.
From all this, the court cannot conclude that the plaintiff has met her burden of
persuasion via her offer of proof that the record does not contain the essential facts on
which she relies in seeking an abatement or that the Commissioners’ decision is
deficient in this regard. Instead, it appears that the plaintiff now wants to produce
“additional,” i.e., “more,” evidence than she did at the county level in order to further
her mission to secure a tax abatement. In the court’s view, a trial of the facts, as noted,
supra, is not the proper forum to supplement the quality of a grievant’s case. More
importantly, the court cannot find that the offer of proof satisfies the affirmative duty of
the plaintiff to satisfy the court that a trial of the facts is appropriate because it appears
from the totality of the material presented in the record and in support of the motion
that this court will have an adequate record to dispose of the plaintiff’s case on its
merits.
With reference to the future course of proceedings, the court will provide the
following direction:
(1) Discovery on Counts II and III will be completed 120 days from the date of
this order. Plaintiff will designate experts 60 days from this order and defendant will
do so 30 days from this order.
(2) Briefs on Count I will follow the briefing schedule outlined at M.R. Civ. P.
80B(g), but the 40 days for filing of the plaintiff’s brief will commence the date the
discovery period closes.
The clerk is directed to make the following entries:
Motion for Trial is DENIED. Motion to Specify Future Course of
Proceedings is GRANTED.
So ordered.
/
Dated: April 23 _, 2004 WW Ke. ice
John R. Atwood
Justice, Superior Court