Lake Morey Inn Golf Resort v. Town of Fairlee

Annotate this Case

Lake Morey Inn Golf Resort v. Town of Fairlee (96-435);
167 Vt. 245; 704 A.2d 785

[Filed 7-Nov-1997]

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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 96-435

Lake Morey Inn Golf Resort, Supreme Court
Limited Partnership
On Appeal from
v. State Board of Appraisers

Town of Fairlee April Term, 1997

Rexford E. Roberts, Chair

Elizabeth A. Glynn of Ryan Smith & Carbine, Ltd., Rutland, for
plaintiff-appellee.

David A. Otterman of Otterman and Allen, P.C., Barre, for
defendant-appellant.

PRESENT: Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.

GIBSON, J. The Town of Fairlee appeals a State Board of Appraisers
decision that valued a 164-room resort and conference center, owned by the
Lake Morey Inn Golf Resort, at $3,275,000. The Town contends that (1) the
market data approach is the best method to determine the value of the
property, and the Board erred in rejecting the Town's comparables; (2) the
Board improperly relied on the cost approach as the sole method to value
the property; and (3) the Board's decision was not supported by adequate
findings of fact. We hold that the method used by the Board to value the
property was proper and supported by adequate findings of fact; we
therefore affirm.

On December 28, 1992, the taxpayer purchased the subject property for
$5,454,500 from Avery Inns of Vermont, Inc. The property is located on a
6.8-acre parcel of land on Lake Morey in the Town of Fairlee. On April 1,
1994, the Town assessed the property at a value of $5,525,100, and the
taxpayer appealed the assessment to the Board of Civil Authority (BCA).

When the BCA upheld the assessment, the taxpayer appealed to the Board of
Appraisers.(FN1)

At the Board hearing, both the taxpayer's and the Town's appraisers
presented evidence regarding the fair market value (FMV) of the property.
The taxpayer's appraiser used three different valuation methods to arrive
at his final figure: the market data, the income, and the cost approach.
The three methods yielded the following values, respectively: $2,706,000,
$2,932,000, and $2,798,400. The appraiser then reconciled the three and
arrived at a final figure of $2,835,000 for the property, or approximately
$17,000 per room.

The Town's appraiser used two methods to value the subject property:
the market data and the income approach. The market data approach produced
a value of $5,100,000, while the income approach generated a value of
$4,400,000. Reconciling these two figures, the Town's appraiser arrived at
a FMV of $5,000,000, or approximately $30,000 per room.

The Board, however, found numerous problems with both the Town's and
the taxpayer's analyses. The Board determined that the market data
evidence of both parties was weak and that the Town's analysis had a
"significant error in reasoning." In addition, the Board found the income
approaches of both parties to be weak and flawed. The Board noted that the
taxpayer's analysis lacked probative value and that the Town's original
analysis and its amended discounted-cash-flow analysis, which had been
submitted prior to the hearing, contained numerous mathematical errors,
omissions, and flawed assumptions. Finally, the Board found the taxpayer's
cost approach to be mathematically flawed. While the Board noted that the
original cost value of the property, as calculated by the taxpayer's
appraiser, was sound, the Board found the appropriate
physical-and-functional-depreciation factor to be 45%, rather than the
49.4% used by the taxpayer.

Because of the errors in both the taxpayer's and Town's methodologies,
the Board

discounted the parties' analyses. Instead, the Board conducted its own
cost-approach analysis and arrived at a value of $3,282,100 for the
property. In addition, the Board performed a market data analysis using
data provided by both the taxpayer and the Town, arriving at a value of
about $20,000 per room, or a total FMV of $3,280,000. Based on its review
of the evidence, the Board determined that the property's value fell within
a range of $3,250,000 to $3,300,000, and concluded that the FMV of the
property was $3,275,000. The Town appealed.

The Board's decision will be deemed presumptively correct and its
findings will be conclusive if they are supported by the evidence. See
Woolen Mill Assocs. v. City of Winooski, 162 Vt. 461, 464, 648 A.2d 860,
863 (1994); see also In re Southview Assocs., 153 Vt. 171, 178, 569 A.2d 501, 504 (1989) ("[W]e must defer to the Board when its findings are
supported -- even if the record contains contradictory evidence -- and
when its conclusions are rationally derived from its findings and based on
a correct interpretation of the law."). Thus, if the record contains "some
basis in evidence for [the Board's] valuation, the appellant bears the
burden of demonstrating that the exercise of discretion was clearly
erroneous." Breault v. Town of Jericho, 155 Vt. 565, 569, 586 A.2d 1153,
1156 (1991). With the standard of review in mind, we turn to the Town's
appeal.

First, the Town contends that the market data approach is the best
method to value the property, and the Board's failure to give adequate
consideration to the Town's market data evidence was clearly erroneous.
Our statutes do not prescribe how the Board should determine the fair
market value of a property. See Sondergeld v. Town of Hubbardton, 150 Vt.
565, 567, 556 A.2d 64, 66 (1988); see also Gionet v. Town of Goshen, 152
Vt. 451, 453, 566 A.2d 1349, 1350 (1989) ("The unswerving goal of the
statute is fair market valuation, but there is no single pathway to that
goal."). In the past, "[t]he court has noted that the cost approach, the
income approach, and the market data approach offer the parties means of
determining fair market value." New England Power Co. v. Town of Barnet,
134 Vt. 498, 505, 367 A.2d 1363, 1368

(1976). This list, however, is not exhaustive, and other methods may be
used. The use of any or all methods is an "appropriate subject[] for
expert testimony to be properly evaluated by the [Board]," id., and unless
the use of a single method or combination of methods leads the Board
astray, this Court will not second-guess its judgment. See Town of Barnet
v. Central Vt. Pub. Serv. Corp., 131 Vt. 578, 580-81, 313 A.2d 392, 393-94
(1973).

It is the duty of the Board "to explore all methods that help in
determining fair market value" and to reject those "that do not lead toward
fair market value." In re Montpelier & Barre R.R., 135 Vt. 102, 105, 369 A.2d 1379, 1381-82 (1977). In some cases, the Board may be required to use
one approach exclusively in order to determine the FMV; in other cases, the
Board may have to use a different method or a combination of methods.
Thus, the Town's unqualified contention that the market data approach is
the "best" method is not invariably correct. The "best" method is decided
by the Board, on a case-by-case basis, and as long as the method is
supported by the findings, we will not disturb the Board's decision.

The Town contends that the Board erred by rejecting the market data
approach without making findings concerning the comparable properties put
forth by the Town's appraiser. We have consistently held that the Board's
decision to use or reject comparable properties "`is not a question of
law'" but instead "`is an evidentiary question.'" Connors v. Town of
Dorset, 134 Vt. 233, 236, 356 A.2d 536, 538 (1976) (quoting In re Town of
Essex, 125 Vt. 170, 172, 212 A.2d 623, 627 (1965)). From the Board's
findings, it is evident that the Board found problems in using any or all
of the taxpayer's and the Town's comparables. It is the Board's
prerogative to judge the credibility and probative value of the evidence
that is presented. See id. at 235, 356 A.2d at 537; see also Sondergeld,
150 Vt. at 571, 556 A.2d at 68 (noting that Board decision to weigh one
party's evidence more heavily than other party's is not abuse of
discretion). Admittedly, the Board provided a detailed rationale for
rejecting or discounting each of the taxpayer's comparable properties while
only briefly noting that "[the Town's comparables] differ from the subject
property." This one-sentence rejection or discounting of the Town's

comparable properties, however, is not error because the Board's subsequent
analysis explains how and why the Board's conclusions were reached. We
conclude that the Board's decision was supported by the evidence and
adequate findings of fact, and was not clearly erroneous.

II.

Secondly, the Town contends that the Board erroneously used only the
cost approach to value the property. The Board's findings, however,
clearly indicate that a combination of methods was used. The Board
explicitly noted that it recomputed the value of the subject property using
its own cost-approach analysis because the taxpayer's appraiser had used
too high a physical-and-functional-depreciation factor and had committed a
computational error. The Board arrived at a value of $3,282,100. In
addition, the Board used a market data approach and noted that the
comparable properties used by both appraisers, adjusted for size, location
and other amenities, would produce a value of about $20,000 per room -- a
value in between the $17,000 per room value calculated by the taxpayer and
the $30,000 per room value calculated by the Town -- for total value of
$3,280,000. Reconciling the computations, the Board arrived at a FMV of
$3,275,000.

Under these facts, the Board's valuation would have been questionable
if it had used the cost approach exclusively because, as the Board
acknowledged, the "cost-computed analysis of value is not always the best
method of determining value, especially for older, vintage properties."
See The Appraisal Institute, The Appraisal of Real Estate 322 (10th ed.
1992) ("The difficulty of estimating the accrued depreciation in older
improvements diminishes the reliability of the cost approach, unless
adequate data are available."). The Board, however, also used the market
data approach in combination with the cost approach. Because we find the
Board's valuation of the property to be in accordance with the evidence and
the statutory requirements for determining FMV, the Board's methodology was
not clearly erroneous. See Kruse v. Town of Westford, 145 Vt. 368, 374,
488 A.2d 770, 774 (1985) (noting that Board, as trier of fact, is under no
obligation to accept, interpret, or apply evidence in accordance with

views of either party; it is within Board's discretion to determine weight,
credibility and persuasive effect of evidence).

III.

The Town's final contention -- that the Board's decisions regarding
the market data approach and the cost approach were not supported by
adequate findings of fact -- is also without merit. More specifically, the
Town, contends that: (1) the Board failed to make specific and detailed
findings concerning what comparable properties were rejected and which were
used in the market data approach, (2) the Board's decision regarding the
cost approach was not supported by adequate findings of fact, and (3) the
Board's decision not to use the market data approach was not supported by
its findings of fact. The Board is required to make its findings and
determinations in writing and ensure that they are available to the
parties. See 32 V.S.A. § 4467. We have consistently held that the
principal inquiry in all of these cases is whether the Board's decision
reveals to the parties and this Court how the decision was reached. See
Weyerhaeuser Co. v. Town of Hancock, 151 Vt. 279, 287, 559 A.2d 158, 163
(1989). The rationale underlying these requirements is to assure this
Court and the parties that the Board's determination of FMV was not a
guess. See New England Power Co., 134 Vt. at 503, 367 A.2d at 1367.

A careful review of the Board's findings establishes that it did not
guess at the value of the subject property when it used the market data
approach to value the property. The Board's market data valuation of
$20,000 falls squarely between the Town's valuation of $30,000 and the
taxpayer's valuation of $17,000. Because the Board's value is within the
evidence and, more importantly, "within the range of rationality," Woolen
Mills Assocs., 162 Vt. at 464, 648 A.2d at 863, we find the Board's
conclusion regarding the market data approach supported by the findings of
fact, and we will not disturb the Board's decision. See id.

Secondly, we disagree that the Board's conclusions in regard to the
use of the cost approach were not supported by adequate findings of fact.
We have held previously that "[i]t

is not necessary for [the Board] exercising discretion to explain the
precise mathematics that led to a particular decision involving a sum of
money." Breault, 155 Vt. at 568, 586 A.2d at 1155. But see Sondergeld, 150
Vt. at 570, 556 A.2d at 67 (surveying cases where Board's decision was not
supported by adequate findings.). Here, the Board explained its rationale
in some detail. For example, while the Board accepted the taxpayer's
determination of the original cost value because it was "based upon the
highly recognized Marshall and Swift formula for determining replacement
cost," the Board explicitly noted that the taxpayer's cost approach was
computationally flawed. Further, the Board, after a site visit to the
subject property, determined the physical-and-functional-depreciation
factor to be 45% -- close to the uncontested factor of 49.4% that was
presented by the taxpayer. Finally, the Board, in detail, described the
formula and data it used to recompute the value of the resort. The Board's
determinations regarding the cost approach were clear and concise, and its
conclusion was supported by adequate findings of fact.

The Town's last contention -- that the Board's decision not to use the
market data approach was not supported by adequate findings of fact -- is
without merit because, as we noted previously, the Board did use the market
data approach in combination with the cost approach to determine the FMV of
the property. In short, we find that the Board did a thorough job, the
Board's decision was fully explained and supported by adequate findings,
and the Board's conclusion that the value of the property was $3,275,000
was within the evidence presented by both the Town and the taxpayer.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. On July 28, 1994, while the taxpayer was appealing the 1994
assessment, the taxpayer and Avery Inns of Vermont, Inc. entered into an
agreement that reduced the property's sale price to $4,454,500. On April
1, 1995, the Town reassessed the property and reduced the assessment to
$5,262,000. The taxpayer appealed to the BCA, which upheld the
reassessment.

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