The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS DOCKET NOS.
AP-05-054
HENRY W. SAUNDERS,
MARJORIE H. SAUNDERS,
LESLIE S. SAUNDERS and
KENNETH W. SAUNDERS
Plaintiffs
CONSOLIDATED ORDER
vs. ON DEFENDANTS'
MOTIONS TO DISMISS
80B APPEALS
TOWN OF STANDISH
Defendant
SYLVIA L. THOMPSON, TRUSTEE
Plaintiff
VS.
TOWN OF STANDISH
Defendant
Before the court are respondent Town of Standish's ("Town") motions to
dismiss plaintiffs Henry, Marjorie, Leslie and Kenneth Saunders' and plaintiff
Sylvia Thompson, Trustee's (collectively, "Plaintiffs") 80B appeals for lack of
jurisdiction. On December 21, 2005, the court granted the Town's unopposed
motion to consolidate these appeals for the limited purpose of deciding these
motions.
BACKGROUND
Plaintiffs challenge their April 1, 2004 tax assessment on residential
properties located on Sebago Lake in Standish. Following denial of their tax
1
abatement applications, Plaintiffs appealed to the Board of Assessment Review,
("BAR) which conducted hearings on July 13, 2005. At the conclusion of the
hearings, the BAR voted to grant a partial tax abatement, reducing the
assessment on the Saunders property from $1,273,200 to $1,100,000 and on the
property held in trust by Thompson from $1,348,700 to $1,140,000. Plaintiffs
were present at these hearings and received actual notice of the BAR decisions on
July 13, 2005. The BAR issued written decisions on both appeals dated July 14,
2005, and mailed them to Plaintiffs. Plaintiffs filed appeals of the BAR decisions
on August 16,2005.
DISCUSSION
The Town claims that, because Plaintiffs filed their 80B appeals 34 days
after the July 13 hearings, this court lacks jurisdiction to hear their appeal. It is
well established that time limits to appeal are jurisdictional. See e.g. Persson v.
Dept. of Human Services, 2001 ME 124, ¶ 9, 775 A.2d 363, 365. 36 M.R.S.A. 5 843,
which governs appeals from property tax assessments, states:
[Elither party may appeal from the decision of the board of
assessment review directly to the Superior Court, in accordance
with Rule 80B of the Maine Rules of Civil Procedure. If the board
of assessment review fails 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 shall be
deemed denied and the applicant may appeal to Superior Court as
if there had been a written denial.
M.R.Civ.P. 80B(b) states, "the time withn which review may be sought shall be
as provided by statute, except that if no time limit is specified by statute, the
complaint shall be filed within 30 days after notice of any action or refusal to act
of w h c h review is sought." The Town points out that Plaintiffs had actual notice
of the Town's action on July 13, 2005, and asserts that, accordingly, the 30-day
2
appeals period began to run from that date. Loolung solely at the language of
Rule 80B, the appeals period would seem to commence on July 13, as the general
meaning of "notice" includes actual notice. See Rowe v. Hayden, 149 Me. 266,271
(Me. 1953); see also Garner, Bryan A., ed. Black's Law Dictionary, 1087 (7thed., 1999)
(stating, "A person has notice of a fact or condition if that person (1)has actual
knowledge of it...").
Plaintiffs maintain, however, that 5 843, from whch Rule 80B derives its
authority for sethng the appeals period, indicates that "notice" in the context of a
BAR decision is to be "written." They then point out that they received written
notice through the mail, dated July 14, 2005. They conclude that, pursuant to
M.R.Civ.P. 6(c), they have 33 days from the date of the written notice to initiate
their appeal.
M.R.Civ.P.6(c) states:
Whenever a party has the right or is required to do some act or take
some proceedings withn a prescribed period after the service of a
notice or other paper upon the party and the notice or paper is
served upon the party by mail, 3 days shall be added to the
prescribed period.
Plaintiffs' argument is compelling in light of the specific language of § 843. The
Law Court has stated that, in deciding when an appeals period begins to run, the
court must first take a close look at the language of the governing statute. See
Vachon v. Town of Kennebunk, 499 A.2d 140, 141 (Me. 1985); see also Woodward v.
Town of Newfield, 634 A.2d 1315, 1317 (Me. 1993). Vachon and Woodward
construed statutes that required any appeal to be taken "within 30 days after the
decision is rendered." See id. Vachon noted that the critical word in the
governing statute was "rendered" and stated, "a decision is 'rendered' when the
tribunal makes, gives, or delivers it." See Vachon, 499 A.2d at 141. It concluded,
3
therefore, that the appeals period began to run as to the date the zoning board of
appeals had heard and voted on the plaintiff's appeal. Id. In support of this
interpretation, the court noted that, if the legislature had intended to delay the
start of the appeal period until the appellant had received notice of the zoning
board's decision, it could have stated, as it has in statutes governing appeals
from state administrative agencies, that the appealing party would have to
appeal "within 30 days after receipt of notice." See id.
The court also looked to the circumstances of a zoning appeal to explain
why the appeals period should run from the date of the hearing and oral
decision as opposed to the date of the written decision. In zoning cases, any
party to the proceeding, including abutters, may appeal the zoning board's
decision, however, only the petitioner and certain municipal agencies must be
given "notice" of the decision. See id. The court concluded from this that, "the
limitation on the notice required . .. negates by clear implication any suggestion
that receipt of notice of a zoning board's decision is a prerequisite for the start of
the appeal period." Id.
Both the statutory language and the circumstances of this appeal differ
from Vachon. Here, "notice" is the crucial statutory language, not the time at
which the decision is rendered. Although § 843 does not clearly state that an
appeal must be taken "within 30 days of receipt of notice," it does provide that,
in the absence of "written notice of their decision," the application will be
deemed denied 60 days after the application has been filed. Additionally, in the
context of a tax assessment appeal, the only parties with an interest in the action
are the applicant and the municipality. There are no third party appeal rights,
and there is, consequently, no need for the date of the public hearing and vote to
4
serve as the date from which any interested party might appeal. Although
ordinarily, the meaning of "notice" under Rule 8ClB would include actual notice,
it is more consistent with the language of § 843, as well as the circumstances of a
tax abatement appeal, to here interpret the meaning of "notice" as "written
notice."
Written notice of the BAR's decision was sent via mail to Plaintiffs on July
14, 2005. Under 3 843, Plaintiffs have the right to appeal the BAR's decision after
written notice of the appeal. Written notice, in the form of "a notice" was served
by mail on Plaintiffs. Thus, under Rule 6(c) and 80B, Plaintiffs had 33 days from
July 14 to file their appeals. Plaintiffs' August 16 appeals are timely, therefore
the court has subject matter jurisdiction to hear them.
The entry is:
Defendant Town of Standish's motions to dismiss Plaintiffs 80B
appeals are DENIED. The consolidation of AP-05-054 and AP-05-
055 is terminated, and each case will hereafter be separately heard
and decided on the merits.
Dated at Portland, Maine this ~ L k d a ~ o f & ,2006.
Justice, Superior Court
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
HENRY W. SAUNDERS, et al.
Plaintiffs
v. ORDER ON 80B APPEAL
TOWN OF STANDISH DONALD L. GARBRECHT
LAW LIBRARY
Defendant
DEC n 8 7006
Before the Court is Plaintiffs Henry W. Saunders, Marjorie H. Saunders,
Leslie S. McManus and Kenneth W. Saunders's ("Plaintiffs") appeal, pursuant to
36 M.R.S.A. 5 843(1) and M.R. Civ. P. 80B of the Town of Standish ("Town")
Board of Assessment Review's ("Board") decision to grant Plaintiffs only a
partial abatement to their April 1,2004 property tax assessment.
BACKGROUND
Plaintiffs own property located at 15 Long Point Road in Standish
("Property"). Long Point Road is a private road providing access to six
residences. A locked steel gate with posted "no trespassing" and "private" signs
prevents access by non-residents. The Property is six acres in size on a peninsula
with 380 feet of frontage on Sebago Lake. The Property is separated from the
water by a bank approximately 80 feet in height. While tlus restricts access to the
water, it provides an elevated view over Sebago Lake and mountains in the
distance. The Property is improved with a 2,528 square foot single family
residence with an attached garage, a 1,069 square foot guest house and various
outbuildings, including a second garage and a tennis court.
The Town completed a town-wide revaluation of property value
assessments on April 1, 2004. As part of that revaluation, the Town assessed the
Property's value at $1,273,200. In calculating this total, the Property's land was
assessed at $943,900 while its buildings were assessed at $329,300. These figures
were based on the sale of three waterfront parcels, one of which occurred in
December 2004 and the other two of whch occurred in 2001, and was calculated
by the Town's valuation services contractor, Vision Appraisal Technology
("Vision"), using its proprietary computer program.
On March 15, 2005, Plaintiffs filed a tax abatement application for the
Property with the Town Assessor, Mr. Peter Arnemann ("Assessor"). In support
of this application, Plaintiffs engaged Lisa Carey, RA1 of Beacon Appraisal
Company, Inc. Ms. Carey produced an appraisal valuing the Property at $796,000
("Beacon Appraisal") based on sales of four residences occurring within ten
months of the April 1, 2004 appraisal date. In response to Plaintiffs' tax
abatement application, the Assessor suggested a compromise assessment
halfway between the two appraisals of $1,034,600. Plaintiffs declined this offer
and the Assessor subsequently denied their abatement request. On May 26,2005,
Plaintiffs submitted their abatement request to the Board.
The Board conducted a hearing on Plaintiffs' tax abatement appeal on July
13, 2005. Plaintiffs presented oral testimony, photographs and written evidence
on the nature of the Property. Plaintiffs also presented the Beacon Appraisal,
"RA" stands for "Registered Appraiser Trainee." T h s designation applies to
appraiser trainees who may "appraise for a fee or other valuable consideration
under the direct supervision of a licensed real property appraiser, a certified
general real property appraiser or a certified residential real property appraiser
those properties that the supervising appraiser is permitted to appraise." 32
M.R.S.A. 5 14033(1).
though Ms. Carey did not attend the hearing or otherwise submit material in
support of her $796,000 appraisal. The Assessor presented his own oral
testimony and documentary evidence as well as oral testimony from Kenneth
Rodgers of Vision Appraisal. Mr. Rodgers assessed the Property's value at
$1,100,000 as of April 1, 2004 ("Vision Appraisal").
At the conclusion of the hearing, the Board voted unanimously to grant a
partial tax abatement to Plaintiffs. The Board determined that the April 1, 2004
assessed value of the Property should be $1,100,000, resulting in a reduction in
actual tax liability of $1,861.90 versus the original assessment. The Board made
h s determination based on the Vision Appraisal stating that, even though the
comparable properties used to reach this appraisal were slightly older than those
used in the Beacon Appraisal, they were time adjusted to account for this
difference. Further, the properties used in the Vision Appraisal were more
comparable to the Property. Specifically, the Vision Appraisal's comparables
were all "hgh bank properties" like the Property in h s case, w h l e the Beacon
Appraisal's comparables included properties the Board did not believe were
truly similar to the Property including one that was located in Sebago Lake Basin
as opposed to on Sebago Lake, and another that was located on Highland Lake in
Bridgton. (R. at 65-66.) Plaintiffs timely filed h s appeal of the Board's decision.
STANDARD OF REVIEW
The Court reviews a zoning board's decision for abuse of discretion or
findings not supported by substantial evidence in the record. York v. Town of
Ogunquit, 2001 ME 53, q[ 6, 769 A.2d 172, 175. Substantial evidence is evidence
that is sufficient for a board to have reasonably found the facts as it did. Ryan v.
Town of Camden, 582 A.2d 973,975 (Me. 1990).The burden of persuasion is on the
party challengng a board's decision to show that the evidence compels a
different result. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (1996). The Court
must not substitute its judgment for that of a board. Id. Further, a board's
"decision is not wrong because the record is inconsistent or a different
conclusion could be drawn from it." Id.
In seeking a tax abatement, the taxpayer bears the burden of proving that
an assessment is "manifestly wrong." Cent. Me. Power Co. v. Town of Moscow, 649
A.2d 320, 323 (Me. 1994). It is well established that in order for a taxpayer to
prevail in challenging a board's assessment, "the taxpayer must show one of
three dungs: (1) that the judgment of the assessors was irrational or so
unreasonable in light of the circumstances that the property is substantially
overvalued and an injustice results; (2) that there was unjust discrimination; or
(3) that the assessment was fraudulent, dishonest, or illegal." McCuIlough v. Town
of Sanford, 687 A.2d 629, 630 (Me. 1996).
DISCUSSION
Under the Maine Constitution, "all taxes upon real and personal estate . . .
shall be apportioned and assessed equally according to the just value thereof."
Me. Const. art. IX, 5 8. "Just value" is the equivalent of "market value." Shawmut
Inn v. Town of Kennebunkport, 428 A.2d 384, 389 (Me. 1981). In determining "just
value," assessors must "consider all relevant factors, including without
limitation, the effect upon value of any enforceable restrictions to whch the use
of the land may be subjected, current use, physical depreciation, sales in the
secondary market, functional obsolescence and economic obsolescence." 36
M.R.S.A. kj 701-A.2
Plaintiffs argue at length that the Assessor unquestioningly accepted
Vision's original assessment and then "ignored" the Beacon Appraisal in malung
his compromise offer. As an initial matter, there is no evidence that the Assessor
"ignored" the Beacon Appraisal. Rather, he was presented with h s appraisal by
Plaintiffs, was not convinced that it was correct and offered a compromise
settlement halfway between the original assessment and the Beacon Appraisal. In
any event, it is the Board's decision that is the subject of h s appeal.3Therefore,
whether Plaintiffs are successful must turn on whether the record evidence
compels a result different from the partial abatement granted by the Board, not
on any perceived ill treatment by the Assessor.
The more substantive of Plaintiffs' arguments addresses the relative
comparability of the properties used in reaching the Beacon Appraisal versus
Plaintiffs repeatedly argue that because the Assessor did not give weight to
their appraisal, he failed to consider "all relevant factors" as required by 36
M.R.S.A. § 701-A. A taxpayer hired appraiser's assessment does not appear to be
the lund of factor the legslature was concerned with in mandating that assessors
consider "all relevant factors." Rather, the non-exclusive list of statutory factors
evidences a concern that appraisers consider all factors affecting a property that
are relevant to its value, not all opinions on how those factors should be
interpreted. Plaintiffs also frame the failure of the assessor to consider their
appraiser's report as an "illegal" failure to give weight to "all relevant factors."
"An illegal assessment is generally understood as one that exceeds the bounds of
the taxing entity's authority." Yusem v. Town of l;laymond, 2001 WlE 61, q[ 14 n.12,
769 A.2d 865, 872. Plaintiff has made no such allegation. Therefore, h s argument
is not properly analyzed as a question of illegality.
"[:l:]nabatement proceedings, the [Board]undertakes an independent review of
value, but does so only if the taxpayer makes his threshold showing that the
assessment is manifestly wrong. Because the [Board]undertake[s] an
independent analysis of value if the taxpayer meets the preliminary burden, we
review the actions of the [Board.]." Yusem, 2001 ME 61, q[ 7 n.5,769 A.2d at 869
(internal citations omitted). In the present case, the Board found that Plaintiffs
proved their property was overvalued by the Assessor and conducted its own
independent analysis in reachng a new assessment. (R. at 65-66.)
those used in the Vision Appraisal. Plaintiffs argue that because the four
properties used in the Beacon Appraisal were all sold in the same year as the
assessment date while two of the three properties used in the Vision Appraisal
were sold in 2001 the Beacon Appraisal is more reliable. Defendant argues that,
although the properties used in the Beacon Appraisal were sold more recently
than those in the Vision Appraisal, there were numerous deficiencies that
nonetheless made the Beacon Appraisal unreliable. Specifically, none of the
properties used were "hgh b a n k properties, only one was as large as l'laintiffs',
none of the comparables had the same view over Sebago Lake as the Property,
and two of the properties were located in Sebago Lake Basin, an area with lower
property values than those on Sebago Lake. In contrast, Plaintiff notes that the
three properties relied upon by the Vision Appraisal were all "hgh b a n k
properties on Sebago Lake with one main residence and at least one guest
cottage. Further, the Board explicitly took into account that the properties used in
the Vision Appraisal were older than those used in the Beacon Appraisal and
stated that their sale values "were appropriately time ad.justed." (R. at 66.)
From the evidence presented, it cannot be said that the Board's decision
was flawed, much less that the record compels a different result. Although the
property sales used in the appraisal relied upon by the Board were older than
those used in the Beacon Appraisal, h s is not the end of the inquiry. The Board
was aware of h s issue and found that the Vision Appraisal appropriately time
adjusted the sales figures. Further, the evidence demonstrates that in all other
respects the properties used in the Vision Appraisal were significantly more
comparable to the Property than those used in the Beacon Appraisal. The Board,
as the fact finder, acted properly in evaluating the competing appraisals and
deciding that the Vision Appraisal was superior.
In addition to their argument that the Board's decision was unreasonable,
Plaintiffs argue that it was the result of unjust discrimination. This argument is
predicated on Plaintiffs' assertion that, for all but the smallest parcels, "any
waterfront parcels in the [Property's] neighborhood having an acreage of just
under 1 acre or more, has a land value roughly between $300,000 and $550,000."
(Pls.'s Br. 6.) The three exceptions to this rule are the Property, another property
on Long Point Road, and a third property on Cole Hill Road.
To prove unjust discrimination, a taxpayer must show that a valuation
system necessarily results in unequal apportionment of taxes among similarly
situated properties. See Ram's Head Partners, LLC v. Town of Cape Elizabeth, 2003
ME 131, ¶ 10, 834 A.2d 916, 919. The Board found that the assessment of the
Property was consistent with other properties in the area of similar size and
shore frontage. The Board further found that the high assessment of the Property
in comparison to other properties in the general area was the result of the
Property's "nice location on the western shore of Sebago Lake with excellent
elevated views of the lake and to the mountains." (R. at 65.)
Simply stating that the Property is assessed at a value higher than many of
the other properties in its geographic vicinity is not enough for Plaintiffs to meet
their burden of proving that the record compels a holding that the valuation
system used by the Board results in unequal apportionment of taxes. T h s is
particularly true in light of the Board's reasonable explanation for the difference
in assessed values. Because of this, and because the record does not compel a
finding that the Board's decision was irrational or so unreasonable that the
Property is substantially overvalued, the Board's decision must be affirmed.
Therefore the entry is:
Plaintiffs' 80B appeal is DENIED.
Dated: October 2006.
Justice, Superior court
COURTS
nd County
ox 287
le 041 12-0287
SALLY DAGGETT ESQ
JENSEN BAIRD GARDNER & HEN
PO BOX 4 5 1 0
PORTLAND ME 0 4 1 1 2
= COURTS
nd County
3x 287
le 041 12-0287
RICHARD BRYANT ESQ -
2 0 YORK ST
PORTLAND ME 0 4 1 0 1