Great Bay Hydro Corp. v. Town of Derby
Great Bay Hydro Corp. v. Town of Derby
Opinion of the Court
¶ 1. Great Bay Hydro Corporation appeals from a decision of the state appraiser setting the listed value of its property used as a hydroelectric generating plant in Orleans County. Great Bay contends the state appraiser departed from settled law in rejecting a recent sale of the property as conclusive evidence of its fair market value for tax assessment purposes. We affirm.
¶ 2. The property in question is part of the Clyde River Hydroelectric Project. The project comprises several parcels, including a dam, impoundment area, and three hydroelectric turbines located in the Town of Derby and the City of Newport. The Derby parcels amount to more than 500 acres. The Newport parcel is over forty-six acres. For many years, Citizens Utilities Company, the predecessor to Citizens Communications Company (Citizens), owned and operated the project under a license from the Federal Energy Regulatory Commission and a Water Quality Certification permit from the State of Vermont. The current federal license and state permit include a number of environmental-protection measures which, according to Great Bay, have reduced the project’s annual power output and increased its generating costs.
¶ 3. On April 1, 2004, Citizens sold the project to Great Bay for $10. The purchase and sale agreement required Citizens to indemnify Great Bay up to $3.5 million, over a period of three years from the date of closing, for costs incurred to bring the project into compliance with the conditions contained in the state and federal permits. Notwithstanding the nominal purchase price, Great Bay paid Vermont property transfer tax in the amount of $41,274.45 in connection with the transaction based on an expressed value of $3,301,956. Assessors in the city and the town set the 2004 listed value of the properties involved at $2,504,300 and $1,193,200, respectively, and these values were affirmed by their respective boards of civil authority. Great Bay appealed both rulings to the state appraiser, who consolidated the appeals, held an eviden-tiary hearing in May 2005, and issued a written decision in June 2005.
¶ 4. The state appraiser rejected Great Bay’s claim that the sale price of $10 necessarily established the property’s fair market value, finding in this regard that the sale was not an arms-length transaction. The appraiser based this finding on several considerations, including the fact that the property was privately offered to a limited number of buyers rather than exposed on the open market. The appraiser also noted that
V 5. We note at the outset the deferential character of our review. We assess decisions of the state appraiser to ensure that they “are supported by findings rationally drawn from the evidence and are based on a correct interpretation of the law.” Barrett v. Town of Warren, 2005 VT 107, ¶ 5, 179 Vt. 134, 892 A.2d 152. Thus, we will not disturb a fair market value supported by the evidence and findings absent a clear error of law. Id. Furthermore, interpretations of statutory provisions by the agency responsible for their administration will not be disturbed absent compelling indication of error. Id. With these standards in mind, we turn to Great Bay’s claim on appeal.
¶ 6. Great Bay contends that the purchase and sale agreement consummated on the same date as the municipal appraisals in this case necessarily established the fair market value of the property. Great Bay relies principally on the property tax statute, 32 V.S.A. § 3481(1), which equates appraisal value with “estimated fair market value” and defines the latter as “the price which the property will bring in the market when offered for sale and purchased by another,” as well as this Court’s decision in Royal Parke Corp. v. Town of Essex, 145 Vt. 376, 379, 488 A.2d 766, 768 (1985), where we observed that, when a recent arms-length sale of the property has occurred, “a market value is perforce established for appraisal purposes.” Great Bay overlooks the final sentence of the statute, however, which provides that, “[i]n determining estimated fair market value, the sale price of the property in question is one element to consider, but is not solely determinative.” 32 V.S.A. § 3481(1). Consistent with this provision, we have held that, while sale price may represent a persuasive and favored method of determining fair market value, “there may be situations where a court must look beyond a sale.” Barrett/Canfield, LLC v. City of Rutland, 171 Vt. 196, 199, 762 A.2d 823, 825 (2000); accord Barrett, 2005 VT 107, ¶ 14 (observing that, while we have characterized sale price as the most persuasive method of determining fair market value, there may arise situations “in which the state appraiser may, consistent with the statute, disregard a sale and turn to other evidence of fair market value”); see also Lake Morey Inn Golf Resort v. Town of Fairlee, 167 Vt. 245, 249, 704 A.2d 785, 788 (1997) (“It is the duty of the Board to explore all methods that help in determining fair market value----”) (quotation omitted); Gionet v. Town of Goshen, 152 Vt. 451, 453, 566 A.2d 1349, 1350 (1989) (“The unswerving
¶ 7. As explained above, the state appraiser here rejected the recent sale price of the Clyde River property as reliable evidence of fair market value based largely on the fact that the property was privately offered to a limited number of potential buyers. Great Bay argues that this fact alone did not undermine the bona fldes of the sale. Although we are inclined to agree that no inflexible rule requires that all property, however unique, must be openly marketed to establish an arms-length transaction,
¶ 8. Apart from the absence of a classic open-market sale, the record here plainly shows that the purchase and sale agreement between Citizens and Great Bay — predicated on a nominal consideration of $10 — was “not one in the way of ordinary business.” Thaw v. Town of Fairfield, 43 A.2d 65, 67 (Conn. 1945) (holding that town appraiser could properly reject sale price as evidence of the property’s true value where, despite a willing buyer and seller, the “predominating influence in the sale was a desire on the part of [seller] to dispose of the property speedily”). Substantial authority supports the principle that where, as here, specific circumstances surrounding a transaction operate to dramatically depress the sale price of property below its reasonable value, courts may look to indicia other than the sale price as competent evidence of fair market value. See, e.g., Josten Wilbert Vault Co. v. Bd. of Equalization, 138 N.W.2d 641, 643 (Neb. 1965) (holding that “‘[s]ale price’ [was] not synonymous with actual value or fair market value” where the sale was by a company en
¶ 9. As noted, the city and town satisfied their initial burden in this cáse to produce evidence of the subject property’s fair market value, evidence which Great Bay has not challenged on appeal. Accordingly, Great Bay retained the ultimate burden of persuasion on all contested issues, a burden carried not merely by “impugning” the appraiser’s methods or “questioning its understanding of assessment theory or technique,” but rather by demonstrating “an arbitrary or unlawful valuation.” Barrett, 2005 VT 107, ¶ 8. Great Bay has not shown that the state appraiser acted arbitrarily or unlawfully in concluding that the circumstances surrounding the sale of the property rendered the purchase price an unreliable indicator of fair market value. Accordingly, we discern no basis to disturb the judgment.
Affirmed.
Great Bay’s appeal is limited to the state appraiser’s decision to disregard the sale price in determining fair market value; it has not challenged the evidence or findings underlying the values determined by the appraiser using the income approach. Accordingly, in concluding that the appeal lacks merit, we necessarily affirm the fair market value assigned to the properties by the state appraiser, although we express no view on the method the state appraiser employed or its application in this case.
As we observed in Barrett/Canfield, “[njowhere in our cases or in 32 V.S.A. § 3481 is there a requirement that a property be actively marketed in order to establish a bona fide sale.” 171 Vt. at 199, 762 A.2d at 825.
Reference
- Full Case Name
- GREAT BAY HYDRO CORPORATION v. TOWN OF DERBY
- Cited By
- 1 case
- Status
- Published