State Housing Authority v. Town of Northfield
State Housing Authority v. Town of Northfield
Opinion of the Court
¶ 1. The Town of Northfield brings these consolidated appeals from decisions by the state appraiser regarding the valuation of two different subsidized housing complexes within the Town. The Town contends that (1) the appraiser erred by applying a statutory amendment that had not yet become effective, (2) the appraiser accepted testimony on behalf of the housing authority in each case without requiring the authority to submit its own appraisal, (3) the appraiser erroneously applied the income approach to value rather than the cost or market approach, (4) the Town was penalized because the listers did not have access to the information they needed to apply the income approach, and (5) the appraiser wrongly relied on unsworn materials to support the base capitalization rate he applied. We affirm.
¶ 3. The second development, the Dogwood complex, is an affordable housing development that was built in two stages with two different missions. The Dogwood complex is owned by The Housing Foundation, Inc., a wholly owned subsidiary of the Vermont State Housing Authority.
¶ 4. In 2004, the Town of Northfield undertook a town-wide reappraisal of its property, and the listers, using the cost approach to value, determined that the grand list value of the Green Mountain Apartments was $1,150,000. They set the grand list
¶ 5. This Court has held that any valuation method resulting in a rational determination of fair market value will survive scrutiny. See Woolen Mill Assocs. v. City of Winooski, 162 Vt. 461, 464, 648 A.2d 860, 863 (1994). “Where the record contains ‘some basis in evidence for [the state appraiser’s] valuation, the appellant bears the burden of demonstrating that the exercise of discretion was clearly erroneous.’ ” Vt. Elec. Power Co. v. Town of Vernon, 174 Vt. 471, 475, 807 A.2d 430, 436 (2002) (mem.) (quoting Lake Morey Inn Golf Resort, Ltd. P’ship v. Town of Fairlee, 167 Vt. 245, 248, 704 A.2d 785, 787 (1997)) (alteration in the original).
¶ 6. As noted above, the Town challenges the materials that the appraiser considered on three fronts. First, the Town contends that the appraiser applied a statutory provision, 32 V.S.A. § 3481, that had not yet become effective. Second, the Town argues that the appraiser should have required the authority to submit its own appraisal in each case, and third, the Town challenges the admission in both hearings of a letter upon which the appraiser relied to determine the base capitalization rate.
¶ 7. We first address whether or not the appraiser improperly applied the methods approved in § 3481. Before 2005, towns had various methods for valuing subsidized housing and the low-income housing tax credits provided by section 42 of the Internal Revenue Code. The Town of Manchester had included low-income housing credits in a housing project’s appraisal value, and in 2004 the Bennington Superior Court approved Manchester’s use of the
¶ 8. The Town claims that the appraiser applied the statute retrospectively to the 2004 tax year. We find that he did not. The appraiser did discuss the amendments to the definition of fair market value, and he even went so far as to demonstrate that the
¶ 9. The housing authority concedes that in both cases the appraiser erred by subtracting the theoretical vacancy and credit losses from each project’s actual income. This subtraction was in error because the actual vacancy rate and credit losses were already included in its actual gross income. In each ease, this led to a slightly lower appraised value. The appraiser subtracted a theoretical vacancy and credit loss of $2,118 from Green Mountain Apartments’ actual gross income of $141,214, thus calculating Green Mountain Apartments’ value at $384,660. The authority concedes it should be $402,610. After subtracting $5,421 from the Dogwood complex’s net operating income, the appraiser valued the Dogwood complex at $1,284,300; the authority acknowledges that it should be $1,330,400.
¶ 10. The Town next contends that the authority should have been required to produce an appraisal performed by a third party to rebut the listers’ valuation of the properties. A taxpayer must
¶ 11. The Town further argues that the appraiser admitted an advice letter from the Allen and Brooks accounting firm in error. The letter was addressed to the Executive Director of the Vermont Housing Finance Agency and the District Advisor Supervisor of the Property Valuation and Review Division of the Vermont Department of Taxes, and it was unsigned. It is clear from a thorough reading of the transcript that the Allen and Brooks firm was familiar to all the parties because the firm had advised the Legislature during the study committee and on the amendments to the statute. At the beginning of each hearing, the appraiser accepted the letter into evidence with a number of other uncontested exhibits, and the Town did not object to its admission. The appraiser found that the letter’s analysis of the capitalization rates provided convincing evidence that the base capitalization rate should be 9.5% for properties with subsidized housing covenants. The Town advocated for an 8.5% to 9.0% capitalization rate, while the authority recommended a rate in the 10% to 12% range. The appraiser appropriately applied a capitalization rate between the figures suggested by both parties.
¶ 13. The Town is correct that its witness did not make any such concession in the Dogwood hearing. Nevertheless, the appraiser has the discretion to correct the listers’ valuation if he determines that the method used was not the one most appropriate for the type of property at issue. Vt. Elec. Power Co., 174 Vt. at 475, 807 A.2d at 436.
¶ 14. Using the cost approach to value, the Town had set the Dogwood complex’s value at $2,223,600, a value consistent with a typical cost-approach analysis. As applied to a low-income housing project, however, this approach makes no sense. The record shows that the Dogwood complex does not produce any cash or other economic reward to the owner, and it will not, at least until the section 515 mortgage is paid off twenty years from now. The appraisal value is supposed to reflect the price that the property would bring if offered on the open market. 32 V.S.A. § 3481(1). The Dogwood complex will not bring $2,223,600 on the open market, and Green Mountain Apartments will not bring anywhere near the $1,150,000 value set by the Town because of these restrictions. Section 515 housing projects can be sold only to other tax-exempt organizations who are willing to abide by the rent and mortgage restrictions currently in place.
¶ 15. Similarly the market approach to value has no application in this case. In the market approach, the appraiser finds similar
¶ 16. The record is replete with evidence from which the appraiser could have reasonably come to his conclusions. We remand solely for the appraiser to correct the arithmetic regarding the actual vacancy and credit loss rate. In all other respects we affirm.
Affirmed in part and remanded for the appraiser to correct the arithmetic regarding the actual vacancy and credit loss rate.
For purposes of this appeal, both the Vermont State Housing Authority and the Housing Foundation, Inc., will be referred to as “the authority.”
The statute reads in relevant part:
For residential rental property that is subject to a housing subsidy covenant or other legal restriction, imposed by a governmental, quasi-governmental, or public purpose entity, on rents that may be charged, fair market value shall be determined by an income approach using the following elements:
(A) market rents with utility allowance adjustments for the geographic area in which the property is located as determined by the federal office of Housing and Urban Development;
(B) actual expenses incurred with respect to the property as provided by the property owner and certified by an independent third party;
(C) a vacancy rate that is 50 percent of the market vacancy rate as determined by the United States Census Bureau with local review by the Vermont housing finance agency; and
(D) a capitalization rate that is typical for the geographic area determined and published annually prior to April 1 by the division of property valuation and review after consultation with the Vermont housing finance agency.
32 V.S.A. § 3481(1)
This is a matter of simple arithmetic. The Court wiH remand to the appraiser for the sole purpose of correcting the arithmetic.
Reference
- Full Case Name
- State Housing Authority v. Town of Northfield The Housing Foundation, Inc. v. Town of Northfield
- Status
- Published