Couse v. Town of Leicester

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 90-013


Fred and Kathleen Couse                      Supreme Court

     v.                                      On Appeal from
                                             Property Valuation
Town of Leicester                              and Review Division

                                             June Term, 1990


Wayne W. Potter, Chair

Fred A. Couse, pro se, Clinton Corners, New York, plaintiff-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     GIBSON, J.   Taxpayers appeal from a determination of the State Board
of Tax Appeals setting their property in the Town of Leicester grand list at
$112,000.  We reverse and remand.
     Taxpayers' sole issue on appeal is the Board's failure to apply the
correct equalization ratio to the fair market value of their seasonal
residence on Lake Dunmore.  As we have pointed out, a property's listed
value should be determined from an equalization ratio calculated as the sum
of the listed values of the comparable properties, divided by the sum of the
fair market values of these properties.  Alexander v. Town of Barton, 152
Vt. 148, 155-56, 565 A.2d 1294, 1298 (1989).
     Taxpayers argue that the Board determined its equalization ratio on
too limited a sample of comparables, using the same three properties it
considered for initial valuation and ignoring eleven properties proposed as
comparables by the Town before the Board of Civil Authority and by the
taxpayers before the State Board.
     In calculating an equalization ratio, the set of comparables used for
initial valuation will generally suffice to meet the constitutional mandate
of fairness embedded in 32 V.S.A. { 4467.  See Kachadorian v. Town of
Woodstock, 144 Vt. 348, 351, 477 A.2d 965, 967 (1984).  But where additional
evidence of comparables is presented, and the additional properties are
generally comparable to the subject property -- even though they may not
have been appropriate as comparables for determining initial valuation and
therefore were not selected for that purpose by the Board -- the Board
cannot arbitrarily exclude the additional comparables when computing an
equalization ratio.
     In this case, the taxpayers and the Town differed about whether
particular comparables were suitable in computing fair market value. But
apparently they do not dispute that the eleven additional properties were
sufficiently similar in location, function, and general description to be
included as comparables in determining an equalization ratio.  See Bowen v.
Town of Burke, 153 Vt. 131, 134, 569 A.2d 452, 453 (1989) (Dooley, J.,
concurring) (suggesting that a proper comparison would be with an average of
properties within the same class as the property involved in the appeal).
If these properties were comparable for equalization purposes, they should
have been included in the Board's computation.
     Unfortunately, the record in this case is inadequate to allow us to
conclude with certainty whether the eleven proffered properties are
comparables or whether the Board had valid reasons for rejecting them as
comparables.  We must therefore remand the matter for further proceedings.
If the Board on remand determines that any of the eleven properties are gen-
erally similar in location, class or function, and general description  --
that is, if there is a broad similarity, even if not a sufficient similarity
for inclusion in the narrower array of cases to be considered for initial
valuation -- then the Board should include them in computing the equal-
ization ratio.  In this manner, the command of { 4467 to determine that the
"listed value of the property subject to appeal . . . correspond to the
listed value of comparable properties within the town" (emphasis added) may
be fulfilled with the largest and fairest possible sampling of comparable
properties.
     Reversed and remanded for further consideration in light of this
opinion.


                                        FOR THE COURT:



                                        ________________________________
                                        Associate Justice