Town of Victory v. State

Town of Victory v. State (2001-410); 174 Vt. 539; 814 A.2d 369

[Filed 02-Oct-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-410

                              MARCH TERM, 2002


  Town of Victory, et al.	       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Essex Superior Court
                                       }
  State of Vermont, et al.	       }
                                       }	DOCKET NO. 70-12-00 Excv

                                                Trial Judge: Dennis R. Pearson

             In the above-entitled cause, the Clerk will enter:

       In this property tax case, plaintiff Town of Victory appeals from a
  summary judgment in favor of the State of Vermont.  On appeal, the Town
  argues that: (1) the court erred by dismissing its claims for estoppel or
  equitable tolling of the 21-day statute of limitations for appraisals of
  land in the payment in lieu of taxes (PILOT) program; and (2) the court
  prematurely disposed of its claim for relief with respect to current use
  program land by converting the State's motion to dismiss into a motion for
  summary judgment and not allowing full discovery of facts essential to
  proving its case.  We affirm as to the first claim of error, but reverse
  and remand for further proceedings as to the second claim of error.

       The State of Vermont through the Agency of Natural Resources (ANR)
  owns approximately 19,000 acres of land in the Town of Victory.  The land
  is comprised of the Victory State Forest and the Victory Basin Wildlife
  Management Area.  In 1981, ANR placed 8724 acres of this land in the use
  value appraisal program, commonly known as the current use program, under
  32 V.S.A. §§ 3751-3763a.

       This dispute arises because land owned by the State of Vermont is
  exempt from property taxes.  See 32 V.S.A. § 3802(1).  The Legislature has,
  however, enacted a payment in lieu of taxes (PILOT) program for state-owned
  land.  With respect to land held by ANR, the payment depends on whether the
  land is enrolled in the current use program.  The land is first appraised
  at fair market value by the director of property valuation and review
  (PV&R).  Id. § 3708(a). (FN1)   If the land is not enrolled in the current
  use program, the State must pay one percent of the appraised value in lieu
  of property taxes.  Id. § 3708(a)(1).  A town aggrieved by an appraisal of
  the property can, within twenty-one days of receiving notice of the
  appraisal, appeal it to superior court.  Id. § 3708(d).
        
       The first issue relates to land not enrolled in the current use
  program.  Each year 1989 through 

 

  1998, the director of PV&R set an appraisal value on the ANR land in
  Victory and notified the Town of the value.  Each of these years the State
  made PILOT payments to Victory which the Town accepted and never appealed
  within the 21-day period permitted by § 3708(d).

       In December 2000, the Town brought this action in superior court
  alleging in relevant part that during the years 1989 through 1998 the
  director of PV&R had greatly undervalued the property and concealed from
  the Town that he had "knowingly, intentionally, maliciously, fraudulently
  and repeatedly" disregarded all proper appraisal methods in order that the
  State would pay less to the Town than it owed.  The State moved to dismiss
  these claims because they were not brought for any year within the 21 day
  appeal period established in 32 V.S.A. § 3708(d).

       The superior court first concluded that § 3708(d) provided the
  exclusive remedy for the Town's claims and that the Town could not employ
  it because the Town failed to appeal within 21 days.  The court assumed,
  however, that the Town could get around the limitation period through
  equitable estoppel or equitable tolling, but, after allowing the Town to
  present further evidence, held that neither of these doctrines apply and
  granted summary judgment to the State on this issue.  The Town argues here
  that they do. (FN2) 

       We agree that § 3708(d) represents the exclusive remedy for the Town's
  appeal and that the appeal is barred by the 21-day time limit unless the
  Town can find a legal justification for its tardy action.  See Brennan v.
  Town of Colchester, 169 Vt. 175, 177, 730 A.2d 601, 603 (1999) (if
  legislature's intent can be derived from plain meaning of the words,
  further statutory construction is unnecessary); Stone v. Errecart, 165 Vt.
  1, 4-5, 675 A.2d 1322, 1325 (1996) (in tax appeals, statutory provision for
  appeal is exclusive remedy); Levy v. Town of St. Albans, 152 Vt. 139,
  141-42, 564 A.2d 1361, 1363 (1989) (when timely direct appeal of zoning
  board decision not taken, decision becomes final so that the determination
  can be relied upon).

       In reviewing a decision to grant summary judgment, we apply the same
  standard as the trial court, that is, summary judgment should be granted
  when there are no genuine issues of material fact and the movant is
  entitled to judgment as a matter of law.  Madden v. Omega Optical, Inc.,
  165 Vt. 306, 309, 683 A.2d 386, 389 (1996).  We regard all allegations made
  in opposition to summary judgment as true, if supported by affidavits or
  other evidence.  Peters v. Mindell, 159 Vt. 424, 426, 620 A.2d 1268, 1269
  (1992).
   
       The Town first argues that its late appeal is justified by equitable
  estoppel.  The party invoking the doctrine of equitable estoppel has the
  burden of establishing four essential elements: (1) the party to be
  estopped must know the facts; (2) the party being estopped must intend that
  its conduct be acted upon; (3) the party asserting estoppel must be
  ignorant of the true facts; and (4) the party asserting the estoppel must
  rely on the conduct of the party to be estopped to its detriment.  Beecher

 

  v. Stratton Corp., 170 Vt. 137, 139-40, 743 A.2d 1093, 1096 (1999) (citing
  Fisher v. Poole, 142 Vt. 162, 168, 453 A.2d 408, 412 (1982)).  "While the
  representations relied upon need not be fraudulent in a strict legal sense,
  generally a defendant is not estopped from raising a statute-of-limitations
  defense absent either a promise or some sort of misrepresentation or
  concealment of a fraudulent character."  Id. at 139, 743 A.2d  at 1095
  (citation omitted).  The court will not invoke the doctrine in favor of a
  party whose own omissions contributed to the problem.  Id. at 140, 743 A.2d 
  at 1096.  Viewing the facts most favorably to the Town, the superior court
  held that the first, third and fourth elements could not be demonstrated by
  the Town.

       Taking these elements into consideration, we agree with the trial
  court's determination that equitable estoppel is not available to the Town. 
  Most importantly, as the court noted, given the adversarial nature of the
  relationship between the Town and the State in property tax matters, it was
  not reasonable for the Town to accept the State's valuation without some
  inquiry into the basis of the valuation.  Lewis v. Cohen, 157 Vt. 564, 569,
  603 A.2d 352, 354 (1991) (where it is clear from the facts about the
  relationship of the parties that reliance should only follow an independent
  inquiry, then plaintiffs will be held to such an investigation).  The State
  concealed nothing from the Town that would have prevented it from
  determining the basis of the appraisal if it had inquired.  The State made
  its valuations and sent them to the Town.  Even if the State failed to
  employ comparable sales data to determine fair market value, as the Town
  alleges, sales figures are found in public records and were available for
  the Town's review if it had inquired.  Cf. id. at 569, 603 A.2d  at 354 ("A
  central element of a fraud claim is that a misrepresentation be made as to
  a material fact, knowledge of which would be otherwise unavailable to the
  purchasers in the exercise of their due diligence."  (internal quotation
  omitted)).

       We agree with the trial court that the Town's arguments for equitable
  tolling are even weaker.  Courts apply the doctrine only when the defendant
  actively misled the plaintiff or prevented the plaintiff in some
  extraordinary way from filing a timely lawsuit, or the plaintiff timely
  raised the precise claim in the wrong forum.  See Longe v. Boise Cascade
  Corp., 171 Vt. 214, 224-25, 762 A.2d 1248, ___ (2000) (citing Beecher, 170
  Vt. at 143, 743 A.2d at 1098).   For the reasons stated above, the Town
  satisfies none of these conditions.  The court properly granted summary
  judgment on the PILOT claims.

       The second issue relates to ANR land enrolled in the current use
  program under 32 V.S.A. §§ 3752-3763a.  For this land, the PILOT amount
  paid to the Town is one percent of the current use value. This value is
  determined by values and criteria developed by the current use advisory
  board and provided to the director of PV&R.  See id. §§ 3754(a)-(c),
  3752(6).  The director then distributes the valuations to the towns, where
  the town listers are required to appraise all land registered in the
  program at the advisory board's values.  See id. § 3754(c).  Private
  landowners pay property tax based on the current use value.  The listers
  also assign a fair market value to the land.  See id. § 3756(h).  For
  private owners, the State makes up the difference in property tax revenue
  by annually paying each town the difference between payments made under the
  current use program and the taxes that would have been collected if the
  property were assessed at fair market value.  See id. § 3760.  As set out
  above, the use value actually determines the Town's total revenue received
  for ANR property.

       Landowners who decide to enroll property in the current use program
  must comply with a number of mandatory requirements.  Specifically,
   
 

    (b) Managed forest land shall be eligible for use value appraisal
    under this subchapter only if:
         (1) the land is subject to a forest management plan, or
    subject to a conservation management plan . . . signed by the
    owner of a tract [which is considered managed forest land].
         (2) an annual report of conformance with any conservation or
    forest management plan, signed by the owner, has been filed with
    the department of forests, parks, and recreation by February 1 of
    each tax year

       . . .

    (c) At intervals not to exceed five years, the department of
    forests, parks and recreation shall audit the management plans and
    the conformance reports for each parcel of managed forest land
    qualified for use value appraisal.  Likewise, at intervals not to
    exceed five years, that department shall inspect each tract to
    verify that the terms of the management plan have been carried out
    in a timely fashion.

  Id. § 3755(b), (c) (emphasis added).  Based on the management plans,
  conformance reports, audits and inspections, the director of PV&R annually
  "shall determine whether previously classified property is still eligible
  for use value appraisal . . . ."  Id. § 3756(f) (emphasis added).  The
  statute further directs that the

    director shall remove from use value appraisal an entire parcel of
    managed forest land . . . when the department of forests, parks
    and recreation has not received a conformance report . . . unless
    the lack of conformance consists solely of the failure to make
    prescribed planned cutting.  In that case, the director may delay
    removal from use value appraisal for a period of one year at a
    time to allow time to bring the parcel into conformance with the
    plan.

  Id. § 3756(i) (emphasis added).

       In its complaint, the Town alleged that the State failed to comply
  with the above requirements with respect to the land in the current use
  program and sought disenrollment of the land.  The superior court granted
  summary judgment to the State on these claims.  The Town argues here that
  the court granted the State summary judgment without allowing it necessary
  discovery and despite the existence of disputed material facts.
   
       The Town filed its complaint on December 12, 2000, and the State
  responded with a motion to dismiss arguing that the Town had no remedy for
  the violations the Town alleged or that any remedy was barred by sovereign
  immunity.  The parties traded memoranda of law until the court ruled in May
  2001 that enrollment of the land in the current use program represented a
  discretionary, and not ministerial, duty and that the Town could seek
  relief under V.R.C.P. 75, but only for an extreme abuse of discretion or a
  clear and arbitrary abuse of authority.  It decided that it would convert
  the motion to dismiss into a motion for summary judgment giving the Town
  "20 days [to file] a statement of contested facts, and any additional
  affidavit(s) or other supporting materials or 

 

  memoranda, to further demonstrate the grounds on which the court could
  reasonably conclude that the State's current use enrollment decisions are
  not discretionary, and have been, or will continue to be a clear, extreme
  and arbitrary abuse of authority."  It also ordered that if the Town needed
  discovery to make its summary judgment filings "it shall within those 20
  days alternatively file a motion pursuant to V.R.C.P. 56(f) detailing with
  specificity what discovery is sought, and why it would be relevant and
  material."  The State was given 15 days after the Town made its filings to
  file a counter-statement of uncontested facts, affidavits and memoranda and
  10 days to respond to a motion for discovery.  

       The Town filed its submission within the specified period stating with
  specificity the ways in which it alleged that the State violated the
  current use statutes.  It stated that the State had refused any discovery
  on its compliance with the current use statutes and the Town's claims were
  based on sworn testimony of state employees in a related case, of which the
  Town had ordered a transcript.  For each of its claims of noncompliance the
  Town asked that if the State disputed them it be allowed to conduct
  discovery on the factual dispute and described the discovery sought.  In
  its memorandum, the Town argued that the decision to enroll land in the
  current use program may be considered discretionary, but the specific
  requirements that the Town alleged that the State had violated with respect
  to enrolled land were mandatory.

       The State responded with an affidavit of a state employee declaring
  that while the State had not complied with the current use requirements
  under the terminology in the statute, it had done the equivalent in its
  management of the Victory State Forest and the Victory Wildlife Management
  Area, the two areas that contained the current use land.  The State
  included these assertions in a statement of material facts as to which
  there was no genuine issue.  It argued that the Town had failed to comply
  with the court's order because it filed no affidavits supporting its claims
  and no statement of undisputed facts.  It argued against giving the Town
  more time for discovery.  It formally moved for summary judgment and argued
  that it had made a sufficient showing to obtain it.

       The court ruled that the Town had failed to comply with the court's
  earlier order because it did not file any affidavits and did not file a
  motion for additional discovery under V.R.C.P. 56(f).  With respect to the
  State's summary judgment motion, it faulted the Town for failing to respond
  to the State's statement of undisputed material facts.  It reaffirmed that
  the State enrollment decisions were discretionary and could be overturned
  only for a clear, extreme and arbitrary abuse of authority.  It concluded
  that the State had showed that its state forest and wildlife management
  area land management actions represented substantial compliance with the
  current use program requirements.

       For three reasons, we must reverse and remand the superior court
  ruling as premature.  First, the mandated procedure restricted the Town's
  ability to comply with the court's directive.  Although the court converted
  the state's motion to dismiss into a motion for summary judgment, it
  created a procedure as if the Town had filed the motion, requiring it to
  proceed first to demonstrate the factual issues and need for discovery. 
  This procedure prejudiced the Town.  The real factual dispute surfaced for
  the first time when the State, which had never answered the Town's
  complaint, presented in response to the Town's filing extensive factual
  material to argue that it substantially complied with the current use
  requirements.
   
       Second, the court did not respond to the Town's demonstrated need for
  discovery, apparently because it never filed a document separately labeled
  as a V.R.C.P. 56(f) motion.  While the court did 

 

  speak of a motion in its original order, the issue appears to be one of
  form over substance.  The rule does not require a motion.  See V.R.C.P.
  56(f).  The Town detailed in its response why it would need discovery
  depending upon the State's response and what that discovery would be.  It
  explained why that discovery had been unavailable in the past.  The
  information was uniquely in the custody of the State.

       The summary judgment rule, V.R.C.P. 56, does not require that the
  trial court wait until the completion of discovery to address a summary
  judgment motion, but does require "an adequate time for discovery."  Bushey
  v. Allstate Ins. Co., 164 Vt. 399, 405, 670 A.2d 807, 811 (1995) (adequate
  time for discovery where "a substantial amount of information," including
  depositions and answers to interrogatories, had been completed); see also
  Poplaski v. Lamphere, 152 Vt. 251, 255, 565 A.2d 1326, 1329 (1989)
  (adequate time for discovery where sixteen months between complaint and
  summary judgment hearing and eight months since signing of discovery
  schedule); Doe v. Doe, 172 Vt. 533, 535, 768 A.2d 1291, 1293 (2001) (mem.)
  (Summary judgment premature where less than one month allowed for
  discovery).  

       This case is quite similar to the recent case of  Doe v. Doe, in which
  we reversed the trial court's summary judgment decision in favor of the
  State because the plaintiff did not have an adequate opportunity for
  discovery.  In Doe, the plaintiff requested discovery shortly after the
  State answered the complaint.  Less than a month later, the State moved for
  summary judgment and a stay of discovery.  The trial court granted summary
  judgment, dismissing all of the plaintiff's claims on the basis that the
  State was immune from suit.  We reversed the trial court because, in
  effect, the plaintiff had no opportunity for discovery.  172 Vt. at 534,
  768 A.2d  at 1293.

       Here, as in Doe, the Town, in effect, had no opportunity for
  discovery.  The State immediately filed a motion to dismiss and resisted
  discovery in this and a companion case.  The trial court took control of
  discovery when it converted the motion to dismiss into one for summary
  judgment and never allowed it before dismissing the Town's claims.   

       Third, the court's actions were based on an overly limited perception
  of the standard of review.  The superior court concluded that because the
  State's duty to enroll or disenroll current use land  was discretionary and
  not ministerial, the court could review the decision only for an extreme
  abuse of discretion.  See Vt. State Employees Ass'n v. Vt. Criminal Justice
  Training Council, 167 Vt. 191, 195, 704 A.2d 769, 771 (1997).  We recognize
  that in the absence of an explicit statutory right of review, the Town
  could obtain relief under V.R.C.P. 75 only if it fit within the requirement
  of an extraordinary relief writ.  See id.  Whether we view the applicable
  writ as certiorari, see Petition of Town of Mendon, 127 Vt. 502, 503-04,
  253 A.2d 139, 140 (1969) (review of action of county appraisal board) or
  mandamus, as did the trial court, the court's scope of review was broader
  than the trial court perceived.  Specifically related to mandamus, the
  elements are "(1) the petitioner must have a clear and certain right to the
  action sought by the request for a writ; (2) the writ must be for the
  enforcement of ministerial duties, but not for review of the performance of
  official acts that involve the exercise of the official's judgment or
  discretion; and (3) there must be no other adequate remedy at law."  In re
  Fairchild, 159 Vt. 125, 130, 616 A.2d 228, 231 (1992).  Thus, mandamus
  allows relief where "decision-making is compelled by statute."  Brennan
  Woods Ltd. P'ship v. Town of Williston, ___ Vt. ___, ___, 782 A.2d 1230,
  1235 (2001).  
        
       Here, the applicable current use requirements are stated in mandatory
  language. The 

 

  Legislature directed that each of the requirements - a forest management
  plan, reports that show conformance with the plan, audits of the management
  plan and conformance reports, and inspections of the land to verify that
  the management plan is being carried out - "shall" be done in order to
  qualify for the current use program.  32 V.S.A. §§ 3755(b), (c), 3756(f). 
  Furthermore, 32 V.S.A. § 3756(i) mandates that the director "shall" remove
  from the current use program any parcel for which a conformance report is
  not received.  Use of the word "shall" in a statute generally means that
  the action is mandatory, as opposed to directory.  See Fraser v. Choiniere,
  133 Vt. 631, 633, 350 A.2d 755, 757 (1975) (V.R.C.P. 51(b), which states
  court shall inform attorneys of its decision on proposed jury instructions
  before arguments to the jury, held mandatory).  The determination of
  whether statutory language is mandatory or directory is one of legislative
  intent.  In re Mullestein, 148 Vt. 170, 174, 531 A.2d 890, 892 (1987). 
  Statutory language should be construed as mandatory if the Legislature
  seeks "to impose a duty and not simply confer a privilege or discretionary
  power."  In re Cartmell's Estate, 120 Vt. 228, 233, 138 A.2d 588, 591
  (1958).

       We are not suggesting that we have determined that the Town is
  entitled to relief or what relief might be appropriate.  We hold only that
  the court had inadequate evidence on which to base its summary judgment
  decision.

       The superior court's decision to grant summary judgment to the State
  of Vermont dismissing the Town of Victory's claims with respect to land not
  enrolled in the current use program is affirmed.  The remainder of the
  court's decision is reversed and remanded for proceedings consistent with
  this decision.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  32 V.S.A. § 3708 was preceded by two functionally equivalent statutes,
  32 V.S.A. § 3660 which was repealed on January 1, 1998, see 1997, No. 71
  (Adj. Sess.), § 22, and 32 V.S.A. § 3701 which was amended on March 31,
  1999, see 1999, No. 1, § 106a.

FN2.  The Town argues that the summary judgment was premature and complains
  about the procedure the court used to reach it.  With respect to the second
  issue on appeal, as discussed infra, we have accepted and agreed with this
  argument.  We do not believe, however, that it applies to the first issue
  because there is no indication that any evidence that could be developed
  through discovery would assist the Town.