*1 Quechee Lakes contrasted the “substantial evidence” (following standard review with what is called Professor Koch) the “classic formulation” of the “clearly erroneous” v. test, as set forth in United States United States Gypsum Co., (1948): 333 U.S. “A is finding ‘clearly erro- it, neous’ when there is evidence to although support court on reviewing the entire evidence is left with the defi- firm nite and conviction that a mistake has been commit- Gypsum differs, however, ted.” The formulation from the 52(a) “clearly erroneous” test under V.R.C.P. as typically in our defined decisions.... It also differs from the formu- lation used since the United Supreme States Court.... Id. at 606 n.9, (citations omitted). 279 n.9 ink on barely dry and we explanation, today are stating opposite without admitting the conflict. We have now spoken so inconsistently the standard of review for fact-finding we should grant reargument openly and face whether we should change standard as the majority opinion clearly case did. Carolyn
Martin S. and Harris Town of Waltham
[
Opinion May Filed *2 Miller, B. Kassel and David W.M. Conard of Eggleston John Ltd., Burlington, Plaintiffs-Appellants. & for Rosenberg, Jackson, Middlebury, Andrew for Defendant-Appellee. Dooley, Harris, Martin and Taxpayers, Carolyn appeal J. a Appraisers setting from decision of State Board in value of their residence and land the Town of surrounding $155,400. at affirm. Waltham for 1989 We residence, the taxpayers’ outbuildings, Town assessed $98,738 in In a and 130 acres at 1988. the Town conducted assessed of land reappraisal buildings because values and substantially within the Town were below fair market values as in shown transfer tax returns for sales in towns by property immediate area. values were increased in accordance with Land schedule, and generally new houses were increased 60% value, adjusting physical changes particular parcels. after for their 1989 valuation to the Board of Civil
Taxpayers appealed (BCA). Authority appeal Their letter stated that their land was they overvalued as a result of the treatment of a had parcel recently conveyed. both the that was con- Apparently parcel and the land retained acre. veyed per were valued $160 to the BCA was that the most valuable Taxpayers’ position por- parcel they conveyed tion their land was the and the remain- der should be valued at less than acre. per During $160 claim hearing, the listers their on this and explained position was to other comparably also stated land valued rejected “Appeal land the Town. The BCA the appeal, stating: for is similar to assessments of sur- denied. Assessment land rounding land.” hearing, ap-
After the obtained Town and property cards for other within the deter- praisal “turned to be true.” mined the BCA statement out stating Board of They appealed Appraisers the Vermont on In the grounds comparability.” was “based to show that in thirteen hearing, they attempted respects than to listing decisions were less favorable to them the other all, this to five They complaints; except landowners. reduced minor, dealt with assessment of the one described as value, no evidence of fair either of They presented land. market properties they compared, their or the which and properties not claim above fair did that their was listed market value. (1)
Taxpayers raise here: BCA failed to two issues state required the reasons for its decision as 32 V.S.A. (2) levels; therefore the remain value should at 1988 and
Board’s fair market findings taxpayers’ prop- values of and the erty comparable properties are erroneous. The Board *3 that raised, found had waived the taxpayers first issue al- it though also concluded that the had not complied with 4404(c). § Taxpayers argue that the Board’s decision on the 4404(c) correct, §of violation is but its decision is waiver erro- 4404(c) § neous. We that the BCA conclude did not violate and accordingly do not reach the question of whether taxpayers this, waived issue.1 argues The dissent should that we not reach because this issue the Town preserve to failed it below and we do not full briefing have the of benefit of disagree. issue. We opportunity preserve The Town had no to below the issue because the beginning hearing although Board announced at the of the that the BCA inadequate taxpayers Thus, was had the issue. waived already proposed issue had findings been decided when the Town its filed stating position. and conclusions Court, fully issue, In this recognizing briefed the prevail have argu- would on it to obtain relief. We have heard “reasoned party against question. ments” from the whom we decide the The Town grounds by Board, chose to defend decision on the Board’s stated not uncommon situation in cases where decision we affirm a because the though reasoning is correct briefing result even Further is not. of the by reasoning. issue the Town aid our would not decision or suggests inappropriate “right The dissent application a narrow and of the issue, statutory history the first a brief
To consider Court, in in this is order. interpretation and their requirements, in part: relevant recently, provided Until shall, days ten from authority] civil within board [of in its find- report, certify writing the time of the committee shall file such with the findings in the and ings premises, record the same the book town clerk who shall thereupon forthwith notify wherein the was recorded and appeal board, certified of the action of such appellant writing out the carry requirements mail. If the board does not subsection, for the appellant year list of the grand made shall remain at the amount being for which set before the was made the lis- appealed change ters, .... dealing require
This Court decided two cases
with the statute’s
In
v.
prepare findings.
ment
the BCA
Punderson
Town of
Chittenden,
221,
(1978),
Following Hojaboom, the Legislature amended the statute. In the above, first sentence quoted the requirement of “findings in the premises” was changed decision, “notice of with rea- sons, in the premises.” Where the second sentence imposed if sanction the BCA “does not out carry the requirements of subsection,” the new version imposes the sanction if the BCA “does not substantially comply with the requirements of this subsection.” There is no question that the Legislature intended to overrule Hojaboom and Punderson least part. The sponsor of the amending legislation described the intent as changing decisions, those “I stating, would respectfully submit'
to the committee that there is not a board of civil authority the state that is capable of satisfying that standard.” Hearings on H.273 before the Senate Government Operations Comm. 1983) (April (testimony Zuccaro). of Rep. Edward This is our first occasion to consider since the amendment. The Board in this Punderson and found that the quoted case BCA decision did “not provide Appellant how precisely the final decision was determined.”2 Taxpayers amplify that the BCA failed to state how it valued taxpayers’ buildings, land; as opposed to their did not specifically identify argues The dissent that we should defer to the Board’s determination of the 4404(c). compliance BCA’s with clearly- Board’s determination is based, however, preamendment on the language applied in as Punderson. We do agency not defer to an where its decision is based on an erroneous interpretation State, of statute. Employees’ Vermont State Ass’n v.
482 value; and not deter- its did or itemize land” “surrounding land. of taxpayers’ market value
mine the fair Punder under the the result have been might Whatever re present met the standard, BCA we conclude son 4404(c). claim to the sole taxpayers’ § Since of quirements against compared discriminated had been was that that their as landowners, a determination named certain other land” is a surrounding of assessments “is similar sessment sim The BCA with the statute. comply sufficient claim. discrimination their ply rejected the BCA to this Court about complaints taxpayers’ All of complaints Their of the decision.3 the quality decision attack or to building of their the value failed to address that the BCA raised no taxpayers since unavailing value are find fair market did not attack in the BCA and the buildings issue about com The other fair market value. listers’ determination after longer required that is no kind of detail involve the plaints 4404(c). §to the amendments technical; sfif- are requirements
The rights Taxpayers’ of them. any from breach prejudice fered no There is to the Board. the de novo by fully protected are BCA, do however sparse, the reasons given no claim that the issues raised its actual determination not represent with substantially complied BCA at least the taxpayers. statutory requirements. decision, necessarily arguing quality of the BCA also attacks The dissent but also that state its reasons requires findings to a decision about good reasons. Its citation it have Danville, Saufroy v. Town Appeals, of Tax we use (1987), apply to the BCA the standards suggests that we should . . speculate [BCA] on how the . findings have “to so we don’t for Board that a town of 454 market value.” We doubt conclusion on fair reached its (1991), whose residents, Survey, Yearbook 1991-92 Vermont National property appeal and authority a of civil hears citizen board volunteer hearing, provide will ever hour of the start of the within an files its decision In standards. reasoning to meet the dissent’s explanation of its a detailed complete give a event, failed to any that the Board we have no evidence Further, sophistication of the BCA’s reasons this ease. statement of its appeal. statute sophistication of the matches the statement reasons; that would have state not the reasons requires that the BCA decision-making, body, for careful by professional with the time a been used appeal. and detailed and based on focused second
Taxpayers’ argument is that there is no evidence to the Board’s determination of fair market value of their support or the In comparable properties. of this con- support clusion, argue they showed that the Town’s land schedule used an impermissible sliding scale method of valua- tion, value, unrelated to fair market and thus overcame the pre- *6 sumption validity Town’s Because the Town appraisal. valuation, failed to support claim the appraisal must be overturned.
Taxpayers’ position here is very different from their position before the Board. At the Board hearing, the following took exchange place between the chairman and Martin Harris: Potter: Mr. Harris would you, would this sell for property
$155,000?
Harris: That’s not the at question hand.
Q: Yes it is to us.
A: No sir.
ItQ: is to us. . . . This is what we have to work on. A: No. There are two grounds on which I can base a com- value____ is,
plaint. One whether fair market [it] over And the other is whether is being comparably All treated. the properties in this town are underap- praised.
Q: ... In order to know whether it is or not overappraised
you first have to find fair market value. . . . A: My complaint is not that this property is assessed over
fair market value. My complaint is the second of the two complaints which I’m entitled to make that I’m not be- ing appraised comparably with other people.
Taxpayers were correct that property valuation involves two- step process: determination of fair market value and equaliza tion. Vermont Electric Power Cavendish, Co.v. Town 158 Vt. 369, 372, (1992). 389, 391 611 A.2d Taxpayers conceded fair mar ket value before’the Board and based their claims solely equalization. so, done Having they are in no position here to attack the Board’s of the fair finding market value of their prop erty.
Affirmed. C.J.,
Allen, affirms the decision of dissenting. majority Board of on the basis of a Appraisers statutory argu- State ment not raised before the Board and not by parties argued majority here. or oral briefing argument interprets Without in a ignores the statute manner its text favor question of a statement one of its That inter- by legislative proponents. meaningless renders 32 V.S.A. and the work pretation (BCA) Authority of the Board of Civil because of insignificant curative supposedly by effect de novo review the State major- Board. I believe that the “curative effect” urged by essence of ity ignores very encourage clear —to and candid decisions BCAs—and undermines the strong sanction of valuations for failure with previous-year comply its mandates. the most troublesome Finally, majority flaw the is that it misconstrues and minimizes the of dis- position issue crimination, which lies the heart of disputes both as to initial valuation and equalization. steadfastly
We have
held
claims raised for the first time
on appeal
will not be considered
this Court. Varnum v. Var
num,
1107, 1110
We bend the
circumstances,” id.,
rule “in extreme and unusual
*7
particularly
where “fundamental
and interests are at
at
rights
stake.” Id.
383,
485 were the Board’s challenging finding waiver on and nevertheless failed to raise the issue either or hearing appeal. This Court should not do so sua sponte. Brett, 52, 959, Tallarico v. 137 61, (1979); See Vt. 400 A.2d 965 Willis, 187, 188, Keene v. 128 Vt. A.2d 372 A reason for principal issues not considering presented parties at trial or their briefs is risk of decid great ing important issues hearing without reasoned arguments on both sides of a a question, especially novel question. See Miller, 222, 233, (1991) Favreau v. 156 Vt. 591 A.2d J., (Dooley, dissenting). notes, As the majority we have not had occasion to consider since was amended following v. Hojaboom of Swanton, Town 43, 442 (1982), A.2d 1301 appellate practice sound should encourage us wait until presented issue is before we venture to I judgment. would await case in which the effect of the legislative changes is briefed and argued.
I would distinguish what the majority has done this case from the numerous instances in which we affirm a trial court ruling, even though the trial reasoning court or adminis trative body is In wrong. such cases the legal relevant issue has been preserved. It is trial court’s rationale for resolv ing the issue that we differ with in this class of cases. For exam ple, Vermont State Colleges Faculty Federation Vermont State Colleges, 457, 463, 151 Vt. (1989), upheld Court' the Labor Relations Board’s affirmance of Ver (VTC’s) mont Technical College’s denial of funds for a sabbati cal. The Board had stated as its grounds incorrect conclusion that no evidence presented had been of violations of two articles of the labor agreement. The Court instead inter preted agreement, it, which was before as allowing VTC to grant prospective-only sabbaticals. In Weyerhaeuser Co. v. Hancock, 158, 161 (1989), issue was whether certain of the taxpayer’s machines were tax *8 Board, able as real estate. The erroneously applying V.S.A. § § rather than concluded that they were. af We firmed because the result would have the been same under § 3602. the Again, legal for our basis decision was be properly fore us.
The majority 4404(c) asserts that §of requirements “[t]he technical; are the taxpayers prejudice suffered no from any the fully rights protected The are of them.
breach If intended the the Legislature to the Board.” novo appeal de BCAs, there would omissions “technical” cure all 4404(c). It clear in context of this statute § is the no need for be municipal bodies that the conduct of governing and others thorough and encourage is to the Legislature intention of ap- for those few who only all not taxpayers, for timely review both as strictures imposes to the Board. Y.S.A. peal is, or reasons. and the inclusion of What of decision to the time a question with the statute is not, compliance is substantial than Court. The tax to answer this position Board is in a better relatively and the State Board is before the BCA appeal process of attorneys without the presence often conducted informal and has recent or the town. This Court for either the in tax decisions. Son- deference the Board years shown Hubbardton, 150Vt. dergeld of the “reasons” quality is familiar with The Board since it deals with BCAs in cases like the present, supplied by only appealed a few of which are of tax appeals, vast numbers a of how well BCA question fewer of which raise the and even decision, pur- while its duties.2 The majority’s has performed clearly ... on based majority Board’s determination “[t]he The states The Board chair- language applied in Punderson.” preamendment as change report for the did not reflect reasons man stated that “the BCA Only change, the amended for no was without reasons.” [and] or the reasons 4404(e) requires speaks “find- of “reasons.” The earlier version version states, premises.” “Subsection ings in the The Board’s written decision Authority of civil notice specifies Title 32 that the Board VSA rely any preamendment ‘with It does not cite or decision be reasons.’” cases. offered, no were the Board’s importantly, More since reasons whatever statute, though ruling stand under either version of on the should 4404(c), majority relying upon § it as amended. seems clear that was a position by demeaning capacity: “We doubt that Town’s rescues the residents, authority . citizen board of civil of 454 . . whose volunteer town within an hour of the start a and files its decision hears reasoning to hearing, provide of its will ever detailed Court, Legislature, that has It is the meet dissent’s standards.” reasons, Authority give sociological and a the Board of directed Civil charge. and abilities is not within our exploration of the BCA’srole think, Legislature majority suggests, mandated I do not as “reasons,” “provide explanation.” required It a detailed *9 (the BCA), lay questions judg- to defer to a board porting ment and discretion of the Board. State that the claim” to the majority states “sole that they was had been discriminated against, compared The majority
to certain other named landowners. concludes that the BCA’s that the “is to explanation assessment similar assessments of land” constituted “a sufficient surrounding ex- planation comply contrary, with the statute.” On the under one, either the former of or the present version those merely words are and no tautological provided always whatever. A claim of discrimination by taxpayers (or an amounts to that the assertion assessment is dissimilar disproportionate) assessments of or otherwise surrounding, comparable, either because of an inconsistent initial property, valuation or of because misapplication municipality’s of the equalization ratio. A contrary assertion does not a “rea- provide son” for the BCA’s decision. issue;
Discrimination is the most is the important issue, as our very substantial of body property tax decisions has shown the years. statute, over The guiding 32 V.S.A. I,
specifically refers to Article Chapter 9 of the Vermont Consti- tution and the Fourteenth Amendment to the United States Constitution, because of the role of in those provisions combat- ting state-sponsored of Alex- See, discrimination all e.g., kinds. Barton, ander v. Town 148, 158-60, 1300-01 This Court now holds that meets the standard of the it gives statute when no more answer to tax- payers’ claim that an assessment is dissimilar to assessments surrounding than response, land “the assessment similar is to assessments of surrounding words, land” —in other “You’re wrong.”3 In Saufroy Danville, gave power and judge State Board the whether reasons have been provided. I simply would hold give what is clear —that the BCA did not reasons, otherwise, detailed or and that the Board did not abuse discre- saying in tion so. important as Just as this will decision itself be its effect citizens and trying citizen boards inherently to do their in best an area of the law difficult, especially legislative so with statutes would benefit from (1987), strikingly language similar 168, 169 we condemned based, in its decision that case
used State a comparable skimpy explanation on the Board’s part, range general “defines the offered the town said: We Saufroys’ property.” fair market value very there were findings recognition Beyond *10 taxpayers’ property differences between significant no explanation Board offers property, the comparable that the fair market cancel out so how differences these how the left to on speculate identical. are values are We value. on fair market Board reached its conclusion Barnet, v. Town 625-26, Roy at 169. See also Id. at 538 A.2d (1986) (State Board has 551-52, and the parties so that this Court make clear statements duty to reached); how decision was Schweizer able to determine will be (1976) Pomfret, v. Town of (Board merely to to state that duty findings; has make specific reversible er- constitutes properties “checked” the comparable ror). held to the same standard is not be While Board, an requires as the State detail Here, was given. none how the result was reached. dis- say joins
I that Justice Gibson am authorized sent. not, majority, point is as characterized review and clarification. Our requires reasons but also “not state its none, gave no good emphasize that the BCA
it have reasons.” We reasons — wrong surely suggest so send all and for this Court to that it did will from whom do not de- signals range to a boards we wide administrative detail, long required eloquence we have reasons or but from whom mand be- people This case is not about difference serve. behalf Board; it is the State about applicable to the BCA and tween the standards say something, as construing allow- a mandate that a state board Vermont say no now ing nothing. board can have set standard the board We meet, people serve. cost to the possibly fail to but some