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BOARD OF PROPERTY TAX REVIEW

 

 

DIGEST OF BOARD DECISIONS

 

 

Table of Contents

 

LIST OF CASES

 

I.     Assessment/Valuation Cases........................................................... 2

II.    Exemptions From Taxation Cases..................................................... 8

Public Property (36 M.R.S. § 651)

Institutions and Organizations­ (36 M.R.S. § 652)

Personal Property (36 M.R.S. § 655)

III.   Classified Property Cases................................................................. 9

Tree Growth Tax Law (36 M.R.S. §§ 571-584-A)

Farmland and Open Space (36 M.R.S. §§ 1101-1121)

Working Waterfront (36 M.R.S. §§ 1131-1140-B)

Mine Site (36 M.R.S. § 2865)

IV.   Equalized Municipal Valuation Cases............................................ 13

 V.   Poverty Cases................................................................................. 15

 

 

IMPORTANT POINTS FROM THE DECISIONS

 

I.     General Principles.......................................................................... 16

II.    Procedural Issues........................................................................... 35

III.   Appeals From Municipal Assessments........................................... 85

IV.   Exemptions From Taxation........................................................... 153

 V.   Classified Properties..................................................................... 164

Tree Growth Tax Law

Farmland and Open Space

Working Waterfront

Mine Site

VI.   Equalized Municipal Valuation..................................................... 209

VII.  Poverty Abatement....................................................................... 222

 

 

 

 

 

 

 

LIST OF CASES

 

                       I.  Assessment/Valuation Cases

 

Municipal Assessments (36 M.R.S. §§ 843, 844)

(Residential cases from primary assessing areas

formerly under the Board’s jurisdiction are included

only if they include issues of consequence; cases

involving stipulations or agreements are not included)

 

Spencer Press of Maine, Inc. v. Town of Wells, No. 86-10, consolidated

with Shaw’s Realty, Inc. v. Town of Wells, No. 86-11 (June 10, 1987)

James River Corp. v. City of Old Town, No. 86-12 (Mar. 4, 1987)

J. J. Nissen Baking Co. v. City of Portland, No. 86-13 (May 11, 1987)

 

Alstores Realty Corp. v. City of South Portland, No. 87-03 (Dec. 4, 1987)

A. C. Lawrence Leather Co., Inc. v. Town of Paris, No. 87-06 (Nov. 17, 1987)

Fayscott Co. v. Town of Dexter, No. 87-08 (Nov. 15, 1988)

 

Scientific Games, Inc. v. City of Lewiston, No. 88-04 (June 27, 1989)

Ames Dept. Store, Inc. #347 v. Town of Skowhegan, No. 88-19

(June 6, 1989)

MCI International v. Town of Andover, No. 88-20 (Sept. 18, 1989)

 

Maine Central Railroad Co. v. Town of Dexter, No. 89-03 (Oct. 19, 1989)

MCI International v. Town of Andover, No. 89-16 (June 7, 1993)

McDonald’s Corp. v. Town of Freeport, No. 89-17 (Sept. 13, 1990)

 

S. D. Warren Co. v. City of Westbrook, No. 90-11 (Mar. 6, 1992),

remanded, CV-92-425 (Super. Ct., Cum. Cty. Mar. 17, 1993)

Waterville Homes, Inc. v. City of Waterville, Nos. 90-16 & 91-06

          (Apr. 6, 1993), vacated, 655 A.2d 365 (Me. 1995)

Kamp Kohut, Ltd. v. Town of Oxford, No. 90-18 (Apr. 16, 1992)

Oxford Homes, Inc. v. Town of Oxford, No. 90-31 (Oct. 25, 1991)

Penobscot Bay Development Co. v. City of Belfast, No. 90-41 (Oct. 25, 1991)

Central Maine Power Co. v. Town of Moscow, No. 90-43 (Sept. 16, 1992),

          aff’d, 649 A.2d 320 (Me. 1994)

 

Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-01 & 91-21

(Oct. 8, 1991), No. 91-21 remanded, CV-91-666, CV-93-130,

CV-93-193 (consolidated)(Super. Ct., York Cty. May 9, 1994),

and decided with Nos. 92-94 & 92-95 (Mar. 6, 1995)

Great Cove Boat Club, Inc. v. Town of Eliot, No. 91-01 (Mar. 3, 1993)

Wesson v. Town of Bremen, No. 91-02 (Jan. 7, 1993)

Marine Atlantic, Inc. v. Town of Bar Harbor, Nos. 91-03 & 91-52

(May 27, 1992)

Lauder v. Town of South Bristol, No. 91-07 (Apr. 28, 1995)

Hood Trust v. Town of South Bristol, No. 91-08 (Apr. 28, 1995)

GTS Foreside Ltd. v. Town of Falmouth, No. 91-12 (Sept. 16, 1992)

Mystic Motor Inn v. Town of Freeport, No. 91-19 (Mar. 18, 1993)

Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-21, 92-94 & 92-95

(Mar. 6, 1995)

Mountain View Associates v. Town of Madison, No. 91-35 (Dec. 3, 1993)

A-R Cable Services – Me., Inc. v. City of Lewiston, No. 91-37 (May 16, 1994)

Danny’s, Inc. v. Town of Old Orchard Beach, No. 91-38 (Dec. 3, 1992)

Schurman v. State of Maine, Bureau of Taxation, No. 91-62 (June 26, 1992)

GTS Foreside Ltd. v. Town of Falmouth, No. 91-63 (Sept. 16, 1992)

Everett v. Town of Anson, No. 91-99 (Sept. 14, 1992)(residential case)

Searsport Realty Associates v. Town of Searsport, No. 91-89 (June 2, 1994)

Glenridge Development Co. v. City of Augusta, No. 91-90 (Nov. 6, 1993),

          aff’d, 662 A.2d 928 (Me. 1995)

Westpoint Pepperell, Inc. v. City of Biddeford, No. 91-91 (June 24, 1994)

Oxford Paper Co. (Boise Cascade) v. Town of Mexico, No. 91-102

(June 19, 1995)

Lincoln Realty Associates v. Town of Lincoln, No. 91-103 (June 1, 1994)

 

C.S.R. Associates v. City of Portland, Nos. 92-03 & 92-20 (Mar. 15, 1993)

Wesson v. Town of Bremen, Nos. 92-04 & 92-66 (Apr. 28, 1994)

(Decision I), and (Apr. 17, 1995)(Decision II), Decision II aff’d,

667 A.2d 596 (Me. 1995)

Hardy, Wolf & Downing v. City of Lewiston, No. 92-06 (May 31, 1994)

Robertshaw Controls Co. v. Town of Kittery, No. 92-10 (Feb. 13, 1996)

Key Bank of Maine v. Town of Old Orchard Beach, No. 92-15

          (Feb. 24, 1993)

Applewood Housing Associates v. Town of Camden, No. 92-18

(May 31, 1995)

Weymouth (Townhouse Estates I) v. Town of Camden, No. 92-29

(May 31, 1995)

Weymouth (Townhouse Estates II) v. Town of Camden, No. 92-30

(May 31, 1995)

Camden Housing Associates v. Town of Camden, No. 92-32 (May 3, 1995)

Dirigo Management Co. v. City of Bath, No. 92-34 (Oct. 31, 1994)

IBM Credit Corp. v. City of Bath, Nos. 92-42 & 93-32 (Dec. 10, 1993),

aff’d, 665 A.2d 663 (Me. 1995)

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14

(Apr. 5, 1994), and (Dec. 15, 1995)(on reconsideration of assessment of costs)

KNL Associates v. City of Lewiston & Central Way Realty v. City of

Lewiston, Nos. 92-55–92-64 (Feb. 28, 1993), vacated, CV-93-25 (Super. Ct., And. Cty. Feb. 16, 1994)

Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 92-97

(Oct. 4, 1994), rev’d, CV-94-497 (Super. Ct., Pen. Cty. Jan 8, 1996)

Pine Brook Associates v. Town of Old Orchard Beach, No. 92-98

(June 16, 1994)

Thayer Garden Associates v. City of Waterville, No. 92-99 (June 28, 1994)

Given v. City of Lewiston, No. 92-103 (Apr. 24 1995)

City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated with

Landco Realty Co. v. City of Biddeford, No. 93-70 (June 13, 1994),

aff’d, CV-93-700 (Super. Ct., York Cty. Aug. 1, 1995)

 

Enos v. Town of Stetson, No. 93-03 (Mar. 16, 1994)(residential case)

Poorvu Family Trust v. City of Presque Isle, No. 93-04 (Apr. 10, 1995)

Toussaint v. City of Lewiston, Nos. 93-06–93-11 (May 27, 1995)

Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97

(July 12, 1994)

Harris v. City of Lewiston, Nos. 93-19–93-22 (June 20, 1994)

Sawyer Environmental Recovery Facility v. Town of Hampden, No. 93-34

          (Apr. 24, 1995)

Central Way Realty Associates v. City of Lewiston, Nos. 93-37–93-40,

consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–

93-49 (May 17, 1995)(order on motion for stay)

Central Way Realty Associates v. City of Lewiston, Nos. 93-37–93-40,

consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–

93-49 & 92-55–92-64 (July 14, 1998)

Wells Industrial Development Corp. v. Town of Wells, No. 93-67

(May 4, 1994)

Alpine Realty Trust v. City of Biddeford, No. 93-72 (July 7, 1995)

Eliot Commons Associates v. Town of Eliot, Nos. 93-73, 93-74 & 95-011

(May 8, 1995)

Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 & 93-135

(Dec. 5, 1994)

J & N Sanford Trust v. Town of Sanford, No. 93-82 (Nov. 21, 1995),

vacated, 1997 ME 97, 694 A.2d 456

Champion International Corp. v. Town of Bucksport, No. 93-98

(Apr. 25, 1996)

Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 93-103

          (May 16, 1995)

CFS Ltd. Partnership v. Town of Sanford, No. 93-106 (Aug. 14, 1995)

Maine Orion Properties v. Town of Falmouth, No. 93-107 (May 30, 1995)

Moore v. Bureau of Taxation, No. 93-110 (Oct. 29, 1994)(noncommercial

property case)

Cumberland Property Trust v. Town of Gorham, No. 93-111 (Aug. 3, 1996)

Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 93-113

          (June 1, 1995)

Federal Insurance Deposit Corp. v. Town of Sanford, No. 93-114

(June 3, 1994)

Unitrode Corp. v. City of Westbrook, No. 93-116 (June 27, 1994)

Northeast Bank of Sanford v. Town of Sanford, No. 93-128 (Aug 14. 1995)

Corliss v. Bureau of Taxation, No. 93-132 (June 13, 1995)(noncommercial

          property case)

Maine Public Service Co. v. City of Caribou, Nos. 93-137 & 95-152

(May 6, 1996)

 

Presque Isle Investors v. City of Presque Isle, No. 94-03 (Apr. 10, 1995)

          (companion case to Poorvu Family Trust v. City of Presque Isle,

          No. 93-04)

Carle Street Associates v. City of Waterville, Nos. 94-23 & 95-162

(Feb. 20, 1996)

Capitol Shopping Center v. City of Augusta, Nos. 94-29 & 95-164

(Dec. 22, 1997)

KNL Associates v. City of Lewiston, Nos. 94-30–94-33, consolidated with

Central Way Realty Associates v. City of Lewiston, Nos. 94-34–

94-42 (May 17, 1995)

Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43

(June 23, 1995)

Mobile Imaging Consortium v. City of Portland, Nos. 94-44 & 96-32

(Dec. 4, 1996), Superior Court’s vacating decision aff’d, 1998 ME 15,

704 A.2d 15

Siemens Credit Corp. v. City of Portland, No. 94-45 (Dec. 8, 1995)

 

Adams v. City of Biddeford, Nos. 95-029–95-104 (June 29, 1995)

(Decision I), on motion to reconsider, Aug. 4, 1995 (Decision II),

on remand, Nos. 95-029–95-104 & 97-015–97-091 (Jan. 8, 1998) (Decision III)(residential cases), aff’d, 1999 ME 46, 727 A.2d 346

Interstate Food Processing Corp. v. Town of Fort Fairfield, No. 95-106

          (Aug. 14, 1995), rev’d, 1997 ME 193, 698 A.2d 1074

UAH Hydro Kennebec v. Town of Winslow, Nos. 95-120 & 95-150

(May 16, 1997)

Knox Hotel Associates v. Town of Thomaston, No. 95-132 (Oct. 12, 1995)

Toussaint v. City of Lewiston, Nos. 95-143–95-146 (Apr. 3, 1996)

FLS Associates v. City of Augusta, No. 95-153 (Apr. 16, 1996)

City of Belfast v. Cooper, No. 95-154 (July 17, 1996)(residential case)

Friendly Ice Cream Corp. v. City of Lewiston, No. 95-158 (Feb. 23, 1996)

AWD Management (Chiricahua, Inc.) v. City of Westbrook, No. 95-163

          (Apr. 3, 1996)

 

Spang Enterprises v. Town of Kennebunkport, No. 96-011 (Sept. 14, 1996)

Hackel v. Town of Sabbatus, No. 96-015 (Apr. 5, 1996)

Seaside Hotel Associates v. Town of Kennebunkport, No. 96-019 (July 3, 1996)

Pope v. Town of Old Orchard Beach, Nos. 96-39–96-41 (Feb. 7, 1997)

Friendly Ice Cream Corp. v. City of Lewiston, No. 96-042 (Oct. 8, 1996)

Country Host Inn v. City of Presque Isle, No. 96-046 (Feb. 28, 1997)

KPMG Peat Marwick v. City of Lewiston, No. 96-047 (Dec. 22, 1997)

Babcock-Ultrapower West Enfield v. Town of Enfield, No. 96-049

(Mar. 5, 1997)

 

Perkins v. Town of Kittery, No. 97-002 (Mar. 11, 1997)(apparently a

residential case)

Wesson v. Town of Bremen, No. 97-005 (Mar. 31, 1997)(residential case)

Friendly Ice Cream Corp. v. City of Brewer, No. 97-011 (May 13, 1997)

Northeast Empire Ltd. Partnership v. Town of Livermore Falls, Nos. 97-101

& 98-005 (Apr. 17, 1998), aff’d, AP-98-9 (Super. Ct., And. Cty. Dec. 23, 1999)

Maine Public Service Co. v. City of Caribou, Nos. 97-108 & 98-008

(Apr. 17, 1998)(order on jurisdiction), and No. 97-108 (June 3, 1999)

Fleet Bank v. City of Lewiston, Nos. 97-113–97-116 (Dec. 10, 1998)

 

G S Building Systems Corp. v. Town of Pittsfield, No. 98-003 (Apr. 16, 1999)

Port Resort Realty Corp. v. Town of Kennebunkport, No. 98-004

(Oct. 21, 1998)

B & B Properties v. City of Ellsworth, No. 98-026 (Mar. 3, 1999)

River Dam Millyard, L.L.C. v. City of Biddeford, No. 98-028 (Oct. 9, 1998)

Provost, Inc. v. Town of Windham, No. 98-029 (Dec. 20, 2000)

 

Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos. 99-015

          & 99-027 (May 30, 2001), aff’d, 2003 ME 28, 818 A.2d 1021

BOC Group, Inc. v. Town of Kittery, No. 99-029 (Dec. 7, 2000)

 

Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006

          (Jan. 7, 2003)

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007

          (Apr. 11, 2002)

International Woolen Co., Inc. v. Town of Sanford, No. 2000-009

(Dec. 11, 2001), vacated and remanded, 2003 ME 80, 827 A.2d 840

Hamlin v. City of Lewiston, No. 2000-018 (Oct.31, 2001)

 

UAH-Hydro v. Town of Winslow, 2001-009 (Oct. 28, 2004), aff’d, 2007 ME

          36, 921 A.2d 146

         

Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001 (Mar. 12, 2002)

(on motion for enlargement)

Riverview Timeshare Trust v. Town of Bethel, No. 2002-009 (Mar. 31, 2003)

International Woolen Co, Inc. v. Town of Sanford, No. 2002-012

(Mar. 11, 2003)(stay order)

 

Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel, 2003-001

& 2003-002 (Jan. 19, 2005)

Sprague Energy Corp. v. Town of Bucksport, No. 2003-003 (May 17, 2005)

U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004 (Nov. 30, 2005),

          together with interlocutory order as appendix, Aug. 16, 2004 (order

          on petitioner’s motion to withdraw appeal in part)

Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-005 &

          2003-006 (Dec. 1, 2003)(order on jurisdiction), confirmed by Board,        June 4, 2004 (decision on jurisdiction)

Topsham Hydro Partners v. Town of Topsham, No. 2003-007 (Aug. 29, 2005)

Peaker v. City of Biddeford, No. 2003-018 (June 22, 2004)(order on

jurisdiction), confirmed by Board, Mar. 31, 2005 (decision on jurisdiction)

Rangeley Lake Resort Development Co, LLC v. Town of Rangeley,

No. 2003-019 (Feb. 7, 2005)

 

Town of Alfred v. Schiavi, Nos. 2005-010, 2005-011, 2005-012, 2005-013

          & 2005-014 (May 9, 2006)

Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017

          (Nov. 17, 2007)

 

Caleb Affordable Housing Associates L.P. v. City of Saco, No. 2006-001

(Mar. 24, 2006)(order on jurisdiction)

Wescott & Payson II v. City of Saco, No. 2006-006 (Feb. 16, 2007)

Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008

          (Dec. 21, 2007)

Turner & Buchanan v. Maine Revenue Services, Nos. 2006-010 & -011 

          (Nov. 9, 2006)

City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach Memorial     Home v. City of Brewer, Nos. 2006-012 & -013 (Dec. 3, 2008)

Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings, LLC

v. Town of Cushing, Nos. 2006-017 & -018 (May 4, 2010)

 

GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Feb. 14, 2011)

          (Maine Mall I)

PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old Town,

          Nos. 2008-013 & -029 (Sept. 30, 2010), aff’d, AP-10-56 (Super. Ct.,

          Ken. Cty. Feb. 8, 2012)

Caleb Affordable Housing Associates, L.P. v. City of Saco, Nos. 2008-021—

-024 and Falls Development Associates, L.P. v. City of Saco, No. 2008-

026 (Sept. 19, 2011)(order on motion to deny pending appeals)

Falls Development Associates, L.P. v. City of Saco, No. 2008-025 

(Aug. 24, 2011)

 

Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 & 2010-002-A

          (July 25, 2011)

Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014 (May 23, 2011)

          (also tree growth in part), aff’d, AP-11-05 (Super. Ct., Han. Cty. Dec.

          17, 2012)

Developers Diversified Cooks Corner, L.P. v. Town of Brunswick, Nos. 2009-

          022 and -025 (May 31, 2011)(prehearing order)

 

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002 (Dec. 7, 2012)

Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016 (Apr. 9, 2012)

 

Harold MacQuinn, Inc. v. Town of Hancock, No. 2011-017 (June 28, 2013)

          (order on Town’s motion to dismiss) 

GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030 (Apr.

          26, 2013)(Maine Mall II)

Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A

          (May 7, 2012)(order on motion to dismiss)

RiverRidge Associates v. Town of Kennebunk, No. 2011-033 (May 7, 2012)

          (dismissal order)

 

Cobalt Properties, Ltd. v. Town of West Gardiner, Nos. 2012-006 & -016

          (Dec. 13, 2012)(prehearing order)

Down East Hospitality Partners, LLC v. Town of Lincolnville, No. 2012-010 (June 21, 2013)(dismissal order)

Narrows Too #5038 v. Town of Trenton, No. 2012-013 (Nov. 19, 2012)

(order on motion to dismiss)

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013 (Dec.10, 2013)

 

 

II.  Exemption From Taxation Cases

 

Public Property (36 M.R.S. § 651)

 

Madison and Anson Water District v. Town of Embden, No. 96-036

          (May 13, 1997)(on motion to reconsider), aff’d, 1998 ME 154,

          713 A.2d 328

Town of Standish v. State of Maine, Bureau of Revenue Services, No. 99-031     (Jan. 12, 2000)

 

Institutions and Organizations­ (36 M.R.S. § 652)

 

New Marblehead North Housing Corp. v. Taylor, No. 90-10 (June 12, 1991)

Finance Authority of Maine v. City of Caribou, No. 90-36 (Feb. 12, 1996),

          aff’d, 1997 ME 95, 694 A.2d 913

 

The Salvation Army v. City of Lewiston, No. 91-29 (Apr. 16, 1992)(Case I),

and (Nov. 3, 1993)(Case II)(decision after remand from Superior Court), aff’d, CV-93-393 (Super. Ct., And. Cty. June 24, 1994); see later case, 1998 ME 98, 710 A.2d 914

 

Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 & 93-24

          (June 2, 1994), aff’d, 673 A.2d 209 (Me. 1996)

 

Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 94-16, 94-17,

95-147, 95-148, 96-33–96-35 (Mar. 21, 1997)

 

Big Lake Camp Meeting Ass’n v. Bureau of Taxation, No. 95-013 (Oct. 24, 1995)

The Salvation Army v. City of Lewiston, No. 95-119 (Jan. 26, 1995)

Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 95-147 &

95-148 (Feb. 23, 1996)

 

The Salvation Army v. City of Lewiston, No. 96-031 (Sept. 14, 1996)

 

Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001

(Nov. 14, 2000)

 

Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032 &

          2010-016 (Aug. 22, 2012)(also tree growth and open space)

 

Personal Property (36 M.R.S. § 655)

 

Given v. City of Lewiston, No. 92-103 (Apr. 24, 1995)

 

 

III.  Classified Property Cases

 

Tree Growth Tax Law (36 M.R.S. §§ 571-584-A)

 

Reynolds v. Town of Fairfield, No. 86-01 (Dec. 31, 1986)

Hornberger v. Town of Bremen, No. 86-02 (Dec. 1, 1987)

 

Pisano v. Town of Surry, No. 87-14 (June 17, 1987)

Hope v. Town of Bristol, No. 87-16 (June 21, 1989)

 

Hudson Pulp & Paper Corp. v. Town of Centerville, No. 88-02

          (June 20, 1989)

 

Lord v. Town of Fayette, No. 89-15 (Apr. 4, 1994)

 

Gottschalk v. Town of Brooklin, No. 90-30 (Feb. 12, 1996)

Diamond Occidental Forest, Inc. v. Town of Eastbrook, No. 90-39

(Jan. 21, 1992)

Filaroska v. Town of Vienna, No. 90-44 (Oct. 25, 1991)

 

Hardison v. Town of Waltham, No. 91-16 (Oct. 25, 1991)

Russell v. Town of Fryeburg No. 91-33 (Apr. 5, 1994)

Edward C. and Cynthia M. Hunt v. Town of Phippsburg, No. 91-41

(Sept. 14, 1992)

Kenneth and Julie Hunt v. Town of Phippsburg, No. 91-42 (Sept. 14, 1992)

Elisofan v. Town of Vinalhaven, No. 91-65 (Sept. 17, 1992)    

Ferguson v. Town of Otisfield, No. 91-66 (Apr. 5, 1994)

Gray v. Town of Blue Hill, No. 91-92 (Apr. 5, 1994)

Coulter v. Town of Oxford, No. 91-95 (May 14, 1992)

 

Dupuy v. Bureau of Taxation, No. 92-07 (June 2, 1994)

Anzivino v. Town of Beddington, No. 92-33 (Apr. 19, 1994)

 

Damian v. Town of Newcastle, No. 93-01 (Apr. 19, 1994)

Winslow v. Town of Falmouth, No. 93-36 (Apr. 4, 1995)

Everett v. Town of Waterford, No. 93-136 (May 30, 1995)

 

Dale Henderson Logging, Inc. v. City of Old Town, No. 94-05

          (Sept. 20, 1995)

Estate of Perkins v. Town of Castine, No. 94-47 (Aug. 14, 1995)

 

Brower, Denis & Powers v. Town of Starks, No. 95-007 (June 12, 1995)

 

Bone v. Bureau of Taxation, No. 96-005 (July 3, 1996)

McGhee v. Town of Maxfield, No. 96-044 (Mar. 11, 1997)

Blanch v. Town of Lubec, No. 96-048 (Feb. 28, 1997)

 

Welch v. Town of Wells, No. 97-001 (Feb. 28, 1997)

Roderick v. Town of Crystal, No. 97-103 (Nov. 14, 2000)

 

Crosby v. Town of Belgrade, No. 98-022 (Oct. 9, 1998)

 

Page v. Town of Damariscotta, No. 99-014 (June 4, 1999)

 

Pachowsky v. Town of Clinton, No. 2001-005 (Feb. 19, 2002)

 

Davis v. Town of Lamoine, No. 2002-003 (Mar. 10, 2003)

Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005

          (Oct. 23, 2002)

Demaris v. Town of Bradford, No. 2002-008 (May 17, 2003)

 

Fowler v. Town of Lubec, No. 2004-002 (Dec.  21, 2005); see also panel   chair’s post-hearing stay order, Feb. 17, 2006, vacated and remanded,

          AP-06-16 (Super. Ct., Ken. Cty. Sept. 25, 2007)

Richmond v. Town of Moscow, No. 2004-004 (Nov. 13, 2005)

Curtis v. Town of Sherman, No. 2004-005 (Jan. 19, 2005)(order on

          jurisdiction)

Zorn v. Town of Lubec, No. 2004-007 (Sept. 21, 2005)

 

Gray v. Town of Sedgwick, No. 2005-005 (Aug. 23, 2006)

 

KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002

(Dec. 11, 2006)

Campbell v. Town of Brownville, No. 2006-003 (Sept. 15, 2006)

Pierce v. Maine Revenue Services, No. 2006-007 (Feb. 13, 2007)

 

Kendall v. Town of Perry, No. 2008-004 (Dec. 30, 2008)

Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016

(Sept. 1, 2009)

Rum Cove, LLC v. Town of Westport Island, No. 2008-032 (Jan. 23, 2012)

 

Davis v. Town of Lamoine and Maine Coast Baptist Church v. Town of

          Lamoine, Nos. 2009-001 & -002 (Mar.14, 2010)

Bayroot, LLC v. Highland Plantation, Nos. 2009-004, -005 & -033

(Apr. 29, 2010)

Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014 (May 23, 2011)

(in part), aff’d, AP-11-05 (Super. Ct., Han. Cty. Dec. 17, 2012)

Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue Services,

Nos. 2009-020 & -021 (Dec. 20, 2011)

Brown v. Town of Bucksport, No. 2009-031 (Feb. 19, 2010)(order on

          motion to dismiss), decision by Board, Jan. 30, 2012

Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032 &

          2010-016 (Aug. 22, 2012)(also open space)

 

McLaughlin v. Town of Dexter, 2010-001 (Apr. 29, 2012)

Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town of

          Smyrna, Nos. 2010-007 & 2010-006 (Aug. 4, 2011)

Smith v. Town of Livermore Falls, No. 2010-008 (Sept. 29, 2010)(order on

          jurisdiction)

See Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016

(Apr. 9, 2012)

Haggard v. Town of Swan’s Island, No. 2010-012 (June 19, 2012)

McClure v. Town of Lubec, No. 2010-013 (June 8, 2012)

 

Cyr Family Ltd. Partnership v. Town of Wade. No. 2011-010 (June 28, 2012)

Gerrity Family Ltd. Partnership v. Town of East Machias, No. 2011-036

          (July 30, 2012)(order on motion to dismiss); Nos. 2011-036 & 2013-011

          (August 8, 2013)(consolidated decision)

         

Farmland and Open Space (36 M.R.S. §§ 1101-1121)

 

Mary R. Schellens & Co. v. Town of St. George, No. 87-01 (Nov. 17, 1987)

 

Heirs of Fogg v. Town of Readfield, No. 89-07 (Apr. 5, 1990)

Sirois v. Town of Lebanon, No. 89-08 (Feb. 20, 1990)

 

Wentworth and Goodyear v. Town of Lebanon, No. 90-13 (Apr. 25, 1991)

Greaves v. Town of Phippsburg, No. 90-15 (May 21, 1994)

 

Rice v. City of Belfast, No. 91-14 (Nov. 19, 1991)

Bryant v. City of Belfast, No. 91-17 (Nov. 19, 1991)

Gile v. Town of Lebanon, No. 91-32 (May 11, 1995)

Gleason v. Town of Southport, No. 91-43 (Apr. 16, 1992)

Wellin v. Town of Friendship, No. 91-51 (Nov. 3, 1992)

Chatfield v. Town of Rockport, No. 91-56 (Apr. 21, 1995)

Filaroska v. Town of Dresden, No. 91-88 (Nov. 13, 1992)

Harbor Island Trust v. Town of Friendship, No. 91-93 (Dec. 1, 1992)

Nargesian v. Town of Northport, No. 91-97 (Nov. 8, 1993)

 

Lockabaugh v. Town of Lubec, No. 92-12 (Dec. 1, 1992)

Needham v. Town of Brooklin, No. 92-17 (Apr. 3, 1993)

Wesson v. Town of Bremen, No. 92-52 (Dec. 2, 1992)

 

Tidebrook Conservation Trust v. Town of Freeport, No. 93-52 (Apr. 24,

1995)(Decision I), and (Aug. 4, 1995)(Decision II)(decision on motion to stay)

LeMaistre v. Town of Freeport, No. 93-56 (June 27, 1994)

Kendall v. Town of Perry, No. 93-60 (Jan. 3, 1995)

Eastler v. Town of Farmington, No. 93-62 (June 13, 1994)

Wesson v. Town of Bremen, No. 93-88 (Apr. 24, 1995)

Brant-Meyer v. Town of Freeport, No. 93-99 (July 15, 1994)

 

Forbes v. Town of Southwest Harbor, No. 95-008 (May 8, 1995)

Wesson v. Town of Bremen, No. 95-115 (Nov. 22, 1995)

Phillips v. Town of Rangeley, No. 95-137 (Nov. 8, 1995)

Eastler v. Town of Farmington, No. 95-138 (May 24, 1996)

 

Haskell v. Town of Phippsburg, No. 96-004 (Mar. 5, 1996)

Forbes v. Town of Southwest Harbor, No. 96-045 (Dec. 4, 1996);

          see also 2001 ME 9, 763 A.2d 1183

 

Keene v. City of Auburn, No. 98-023 (Nov. 14, 2000)

 

Sayer v. Town of Canton, No. 99-022 (Aug. 8, 2001)

 

Carroll v. Town of Cornish, No. 2001-02 (Nov. 30, 2001)(order on

jurisdiction)(Decision I), and (Feb. 4, 2002)(Decision II)(decision on merits)

 

Hinkley v. Town of Waldoboro, No. 2003-009 (Aug. 5, 2004)(order on

jurisdiction)

 

Smith v. Town of Surry, No. 2005-015 (Jan. 23, 2006)(order on jurisdiction)

 

Satterfield v. Town of Cushing, No. 2009-022 (Aug. 27, 2010)(dismissal order)

Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032 &

          2010-016 (Aug. 22, 2012)(also tree growth)

 

Eames v. Town of Winslow, No. 2011-015 (Nov. 20, 2012)

 

Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009 (Aug. 23, 2013)

 

Working Waterfront (36 M.R.S. § 1131-1140-B)

 

Brackett v. Town of Bristol, Nos. 2007-010 & -011 (Nov. 21, 2008)

See Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009

          (Aug. 23, 2013)

 

Mine Site (36 M.R.S. § 2865)

 

No cases

 

 

IV.  Equalized Municipal Valuation Cases

 

 Municipal Valuation Appeals (36 M.R.S. § 272)

(not including cases in which an agreement on valuation

was reached or the municipality withdrew its petition,

or cases involving only issues of sales ratio analysis)

 

Inhabitants of the Town of Madison v. State Tax Assessor, No. 86-07 (Jan.

          14, 1987), vacated, 541 A.2d 939 (Me. 1988)

 

Town of Madison v. State Tax Assessor, No. 87-11 (Feb. 12, 1988)

          (decided in accordance with previous year’s case)

Town of Frenchville v. State Tax Assessor, No. 87-12 ((Dec. 22, 1987)

Town of Glenburn v. Bureau of Taxation, No. 87-13 (Jan. 15, 1988)

 

Town of Monmouth v. Bureau of Taxation, No. 90-20 (Jan. 11, 1991)

Town of Sherman v. Bureau of Taxation, No. 90-21 (Jan. 11, 1991)

Town of Penobscot v. Bureau of Taxation, No. 90-23 (Jan. 11, 1991)

Carroll Plantation v. Bureau of Taxation, No. 90-25 (Jan. 11, 1991)

 

Town of Jefferson v. Bureau of Taxation, No. 91-80 (Jan 9, 1992)

City of Ellsworth v. Bureau of Taxation, No. 91-84 (Jan. 9, 1992)

Town of Lubec v. Bureau of Taxation, No. 91-85 (Jan. 9, 1992)

 

Town of Danforth v. Bureau of Taxation, No. 92-24 (Nov. 9, 1992)

Town of Mechanic Falls v. Bureau of Taxation, No. 92-26 (Sept. 14, 1992)

Town of Whitefield v. Bureau of Taxation, No. 92-27 (Sept. 14, 1992)

Town of Franklin v. Bureau of Taxation, No. 92-35 (Sept. 14, 1992)

Town of Winn v. Bureau of Taxation, No. 92-36 (Nov. 9, 1992)

Town of Washington v. Bureau of Taxation, No. 92-37 (Nov. 9, 1992),

vacated, CV-92-187 (Super. Ct., Knox Cty. Apr. 6, 1994)

Drew Plantation v. Bureau of Taxation, No. 92-38 (Nov. 9, 1992)

Town of Limerick v. Bureau of Taxation, No. 92-76 (Jan. 12, 1993)

Town of Montville v. Bureau of Taxation, No. 92-77 (Jan 12, 1993)

Town of Frenchboro v. Bureau of Taxation, No. 92-88 (Jan. 9, 1993)

Town of Limestone v. Bureau of Taxation, No. 92-89 (Jan. 9, 1993)

Town of Isleboro v. Bureau of Taxation, No. 92-91 (Mar. 29, 1993)

 

Carroll Plantation v. Bureau of Taxation, No. 93-126 (Jan. 7, 1994)

Town of Monroe v. Bureau of Taxation, No. 93-131 (Jan. 7, 1994)

 

Town of Waldoboro v. Bureau of Taxation, No. 95-109 (Jan. 9, 1995)

Town of Weston v. Bureau of Taxation, No. 95-121 (Jan. 9, 1995)

 

City of Caribou v. Bureau of Taxation, No. 96-014 (Jan.8, 1996)

Town of Weston v. Bureau of Taxation, No. 96-017 (Jan. 8, 1996)

Town of St. Agatha v. Bureau of Taxation, No. 96-025 (Jan. 8, 1996)

City of Presque Isle v. Bureau of Taxation, No. 96-026 (Jan. 8, 1996)

 

Town of Standish v. State of Maine, Bureau of Revenue Services,

          No. 99-031 (Jan. 12, 2000)

City of South Portland v. State of Maine, Bureau of Revenue Services,

No. 99-033 (Jan. 13, 2000)

Town of Gilead v. State of Maine, Bureau of Revenue Services, No. 99-035,

          (Jan. 13, 2000)

 

Town of Solon v. State of Maine, Bureau of Revenue Services, No. 2000-012      (Jan. 15, 2001)

 

Town of Abbott v. Maine Revenue Services, No. 2001-011 (Jan. 15, 2002)

Town of Bucksport v. Maine Revenue Services, No. 2001-012 (Jan. 15,

2000)

Town of Dexter v. Maine Revenue Services, No. 2001-014 (Jan. 9, 2002)

 

Town of Danforth v. Maine Revenue Services, No. 2002-013 (Jan. 14, 2003)

Town of Milo v. Maine Revenue Services, No. 2002-014 (Jan. 14, 2003)

Town of Shirley v. Maine Revenue Services, No. 2002-016 (Jan 14, 2003)

Town of Stockholm v. Maine Revenue Services, No. 2002-017 (Jan. 14,

2003)

Town of Dexter v. Maine Revenue Services, No. 2002-018 (Jan. 14, 2003)

 

Town of Liberty v. Maine Revenue Services, No. 2003-015 (Jan. 2, 2004)

Town of Palermo v. Maine Revenue Services, No. 2003-016 (Jan. 2, 2004)

Town of Easton v. Maine Revenue Services, No. 2003-017 (Jan. 2, 2004)

 

Town of Abbott v. Maine Revenue Services, No. 2004-008 (Jan. 6, 2005)

 

Town of Palermo v. Maine Revenue Services, No. 2005-016 (Jan. 19, 2006),       decision after legislative resolve, Apr. 14, 2006

 

Town of Waldo v. Maine Revenue Services, No. 2007-001 (Jan. 25, 2007)

Town of Milbridge v. Maine Revenue Services, No. 2007-009 (Dec. 21, 2007)

          (order on jurisdiction)

 

Town of Mars Hill v. Maine Revenue Services, No. 2009-030 (Nov. 17, 2009)

(order on jurisdiction), confirmed by Board, Feb. 10. 2010 (decision on jurisdiction)

 

 

V.  Poverty Cases

 

See Pachowsky v. Town of Clinton, No. 2001-005 (Feb. 19, 2002)

 

See Pierce v. Maine Revenue Services, No. 2006-007 (Feb. 13, 2007)

 

 

 

 

 


IMPORTANT POINTS FROM THE DECISIONS

 

 

I.  General Principles

 

Taxation is an essential attribute of sovereignty and vital to pay for the demands of citizens on government

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 33, 34

 

 

The state cannot transfer to municipalities the authority to determine what real estate is subject to taxation, Me. Const. Art. IX, § 9

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 31

 

 

Assessors’ and the Board’s constitutional (Me. Const. Art. IX, § 8) and statutory (36 M.R.S. § 701-A) duty to determine just value

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 4

          Central Maine Power Co. v. Town of Moscow, No. 90-43, at 2

          Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 92-97,

                   at 2

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49 & 92-55–92-64, at 3 n.1

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 4, 5 (constitutional requirement is to obtain a rough equality in assessments of similarly situated property owners)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 5 n.2

          Spang Enterprises v. Town of Kennebunkport, No. 96-011, at 2

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 4 n.2

(just value is the equivalent of true value or market value)

          Port Resort Realty Corp. v. Town of Kennebunkport, No 98-004,

at 2 n.1

          B & B Properties v. City of Ellsworth, No. 98-026, at 7

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 3 n.1

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 32

          Town of Dexter v. Maine Revenue Services, No. 2001-014, at 8

                   (noting same duty is imposed on Board)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 31-32

(this is done by Board’s deciding whether or not taxpayer has met its burden to prove assessor manifestly wrong)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 26

                   (constitution contains both valuation and apportionment                          requirements)

          Fowler v. Town of Lubec, 2004-002, at 4 (Board has no authority

                   to entertain substantive constitutional challenges to tree                          growth law)

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

                   at 3 n.2

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

at 2 n.1 (just value is the equivalent of true value or market value)

City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at

3 & n.2 (just value is the equivalent of true value or market value)

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 5-6 & n.6  

(working waterfront statute, section 1135 (1)(A), (2), requiring determination of land’s just value or its ordinary assessed value, and section 701-A give voice to highest and best use; just value is the equivalent of fair market value)

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 3 n.4

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 3 & n.3

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 4

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 2 n.3

Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 16, 27

          n.11 (section 701-A implements highest and best use)

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 2 n.2

Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

of Smyrna, Nos. 2010-007 & 2010-006, at 3 n.2

 

 

The role of the common law in taxation, and statutory modification

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

Services, Nos. 2009-020 & -021, at 12-13, 18-19 (although

the common law provided for interest on the return of a tax

wrongfully imposed, the Legislature can change the rule by

statute; there is no inherent right to a return of a tax paid

when the tax is later declared unconstitutional)

 

 

Maine has taxed its unorganized areas from its beginning as a state

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 2

         

 

The State Tax Assessor, through the Property Tax Division of Maine Revenue Services, administers assessment and taxation of properties in

the unorganized territory

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

Services, Nos. 2009-020 & -021, at 2

 

 

Taxpayers have the legal right to avoid, though not evade, taxes

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 68

 

 

What constitutes a tax

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 11 (“tax” includes penalties

 and interest)

 

 

What constitutes taxable property, 36 M.R.S. §§ 551, 553

 

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-01 & 91-21,

                   at 7-8 (leasehold interest in submerged lands, obtained from

state)

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-21, 92-94 &

92-95, at 4 (town has jurisdiction only to low water mark)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 33 (all but that which is exempt by law)

 

 

Double-taxation is impermissible

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 29

          PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old

Town, Nos. 2008-013 & -029, at 4 (dam improperly taxed both separately and as a part of a hydroelectric generating facility)

 

 

An illegal tax is illegal from the date of assessment

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 9

 

 

The duty to determine just value means assessors must treat taxpayers with consistency and treat similarly situated taxpayers alike

 

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005, at 12

 

 

It is preferable that there be uniformity and clarity in the administration of property tax laws

 

          Pierce v. Maine Revenue Services, No. 2006-007, at 9

Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 23

 

 

Taxation must be practical and bring results

 

          Town of Alfred v. Schiavi, Nos. 2005-010, 2005-011, 2005-012,

                   2005-013 & 2005-014, at 3

          Brown v. Town of Bucksport, No. 2009-031, at 23

 

 

Paying a tax under protest does not mean it was not paid voluntarily

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

Services, Nos. 2009-020 & -021, at 13 n.6

 

 

Creation of the Board of Property Tax Review

 

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

05 & 2003-006, at 5 (order on jurisdiction), confirmed by Board, June 4, 2000 (decision on jurisdiction)

 

 

Composition of the Board, 36 M.R.S. § 271(1)

 

          Mobile Imaging Consortium v. City of Portland, Nos. 94-44 & 96-32,

at 3-4 & n.1 (professions represented on Board qualify it to

consider facts relevant to valuation)

          Cyr Family Ltd. Partnership v. Town of Wade. No. 2011-010, at 2 n.2

                   (three members from each of five stated disciplines)

 

 

The Board is administratively a part of the Department of Financial and Administrative Services

 

          Town of Palermo v. Maine Revenue Services, No. 2005-016, at 2

 

 

The Board is an adjudicatory body

 

          Town of Dexter v. Maine Revenue Services, No. 2001-014, at 9

(and so gives deference to agency interpretation of rule that agency has responsibility to enforce)

          Town of Dexter v. Maine Revenue Services, No. 2002-018, at 5 n.4

                   (same)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 31

                   (without enforcement powers)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at

2 n.2 (subject to the Maine Administrative Procedure Act)

Gray v. Town of Sedgwick, No. 2005-005, at 9 (without enforcement

          powers, Board has no authority to assess property)

 

 

Three members are a quorum of the Board, 36 M.R.S. § 271(5)

 

          Glenridge Development Co. v. City of Augusta, No. 91-90, at 1

 

 

Property tax appeals are judicial in nature

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at

2 n.2

 

 

The Board’s authority to render an advisory opinion in the adjudicatory context

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 5

                   (an agency has authority only outside the adjudicatory process,

                   pursuant to 5 M.R.S. § 9001, but Board has no such authority

pursuant to its authority to hear and decide appeals, 36 M.R.S.

                   § 271(2)(A))

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 3, 14

                   (authority is discretionary pursuant to section 9001(1))

 

 

When the Board is evenly divided, a party with a burden of persuasion or proof has not met its burden

 

          Town of Dexter v. Maine Revenue Services, No. 2002-018, at 8-9

 

 

Rule of Necessity: where Board member testifies for a party, Board is not disqualified for bias or conflict of interest because there is no other competent tribunal to hear the case

 

          Cyr Family Ltd. Partnership v. Town of Wade. No. 2011-010, at 2

 

         

The Board is not an equalizing board

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 31

 

 

The Board has no authority to assess property, or increase assessment on what it may think was an under-assessment in the first instance

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 31

          Gray v. Town of Sedgwick, No. 2005-005, at 9

 

 

Power of the Board to raise or lower assessment, 36 M.R.S. §§ 271(2)(B), 843(1-A), 844(2)

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 11

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 2 n.2

 

 

Power of the Board to correct illegality, error, or irregularity, 36 M.R.S. § 841(1)(2nd ¶)

 

          Haggard v. Town of Swan’s Island, No. 2010-012, at 9

 

 

The Board has the authority only to determine that a taxpayer has met its burden to prove an assessment manifestly wrong, in which case it is to grant such a reasonable abatement as the Board thinks proper, or that the taxpayer has not met its burden, in which case the assessment stands

 

          Gray v. Town of Sedgwick, No. 2005-005, at 9-10 (Board cannot

adjust an assessment upward by dividing the fair market value of tree growth parcels by the certified ratio, but can apply tiered formula used by municipality consistent with its use in other comparable properties)

 

 

Assessing authority is not required to apply each factor of 36 M.R.S. § 701-A or weigh each equally

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 11 n.6

 

 

36 M.R.S. § 701-A requires land to be assessed according to its presently possible use

 

          Sawyer Environmental Recovery Facility v. Town of Hampden,

No. 93-34, at 4

          Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43, at 3

                   (assessors are to consider all permissible uses, not just the

current use)

 

 

Assessors are required to value real estate, which is a fairly constant fixed asset, according to its just value over a period of time that is measurably stable, not the fleeting or speculative

 

          Town of Abbott v. Maine Revenue Services, No. 2001-011, at 4

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 15 n.6

 

 

Challenge to municipality’s authority to assess property not within its jurisdiction (and thus to Board’s authority to entertain an abatement request)

 

          Mobile Imaging Consortium v. City of Portland, Nos. 94-44 & 96-32,

passim (mobile scanner units were located in towns other than Portland on April 1st of tax year in issue; Board held its authority is only to determine questions of overvaluation in an abatement proceeding; declaratory judgment action may be used to determination jurisdiction; no mention of Siemens Credit Corp. case)

          Siemens Credit Corp. v. City of Portland, No. 94-45, at 2 (in case

decided before Mobile Imaging Consortium, Board held property not within city on April 1st of tax year in issue was not subject to taxation by city, and tax must be wholly abated)

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

at 1-5, 10, 14 n.12 (confusion over location of property due to obscure statute placing it in town other than where all thought it to be)

         

 

Ownership defined: often may be title interest or possession and control interest, 36 M.R.S. § 553

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 50-52

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 6 n.3

 

 

Property may be taxed to owner or one in possession, 36 M.R.S. § 553

 

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 13

          Brown v. Town of Bucksport, No. 2009-031, at 23 n.22

 

 

Property may not be taxed to one who does not own it

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 34

                   (if assessment is over-inclusive, Board may abate assessment)

 

         

A tenant in common or joint tenant may be considered the sole owner unless he notifies the assessors otherwise, 36 M.R.S. §§ 555, 557

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 8, 19

 

 

Personal property is taxable to the owner where he resides, and includes goods and chattels wherever they are located, 36 M.R.S. §§ 601, 602

 

          UAH-Hydro v. Town of Winslow, 2001-009, at 9 & n.8

 

 

Question whether a financing arrangement benefit is not taxable because

it is an intangible, not expressly included in the definition of personal property, 36 M.R.S. § 601, or is a value-enhancing factor and thus relevant under 36 M.R.S. § 701-A to a determination of fair market value

         

Mountain View Associates v. Town of Madison, No. 91-35 (FmHA

                   section 515)

          Searsport Realty Associates v. Town of Searsport, No. 91-89 (same)

          Glenridge Development Co. v. City of Augusta, No. 91-90 (section 236

                   of the National Housing Acts of 1937 and 1949

          Lincoln Realty Associates v. Town of Lincoln, No. 91-103 (FmHA

                   section 515)

          Applewood Housing Associates v. Town of Camden, No. 92-18 (same),

Weymouth (Townhouse Estates I) v. Town of Camden, No. 92-29

          (same)

Weymouth (Townhouse Estates II) v. Town of Camden, No. 92-30

          (same)

Camden Housing Associates v. Town of Camden, No. 92-32 (same),

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97

(section 8 elderly housing project)

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

                   93-24 (section 8 congregate housing project)

Knox Hotel Associates v. Town of Thomaston, No. 95-132 (section 8

          elderly housing project)

UAH-Hydro v. Town of Winslow, 2001-009 (purchase power

                   agreement)

Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008

                   (low-income housing tax credit under section 42 of the

                   Internal Revenue Code)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013

                   (same)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025

                   (section 8 apartment complex), at 38-39 (intangible must be

valued so long as it runs with the land because it then is inextricably intertwined with the real property); at 39-40 (intangibles per se are not taxable, and do not have a value  precisely corresponding to the value of the property); at 47

(the very success of subsidized housing is dependent on

section 8 subsidies, thus inextricably intertwining the loan agreements with the value of the property)

 

 

How Maine and other jurisdictions have regarded valuing intangibles such as mortgage subsidies and low-income housing tax credits

 

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025

                   at 48-53 (Maine); at 53-60 (other jurisdictions)

 

 

Whether a financing agreement is transferable to a new owner

 

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025,

                   at 41-42 (value is to the property, not the owner; financing

                   must be considered when available to a subsequent owner);

at 45 (that MSHA retains the right to approve an assumption

of the financing does not negate marketability of property)

         

 

Transfer of title to real property requires delivery of a deed

 

          Davis v. Town of Lamoine and Maine Coast Baptist Church v. Town of

                   Lamoine, Nos. 2009-001 & -002, at 2

 

 

When property is transferred, the value of the property must be declared in a transfer tax declaration, 36 M.R.S. § 4641-D, accompanying the deed when presented for recording

 

          McLaughlin v. Town of Dexter, No. 2010-001, at 4 n.4

 

 

Transfer tax declarations are sent by Register of Deeds to State Tax Assessor and then to assessors

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002,

at 19-20 n. 9

          McLaughlin v. Town of Dexter, No. 2010-001, at 4 n.4

 

 

Granting an abatement or exemption may affect the stability of municipal income

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 7 (abatement)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 34 (exemption)

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 11

                   (abatement; tree growth)

 

 

But that must nonetheless give way to the constitutional obligation to assess property according to just value

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 7

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 11

 

 

Responsibility of municipality to perform annual assessments, 36 M.R.S.

§ 708, to ascertain “the nature, amount and value [of property] as of the first day of each April”

 

          Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 3

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 4

          Smith v. Town of Surry, No. 2005-015, at 2-3 (order on jurisdiction)

          Kendall v. Town of Perry, No. 2008-004, at 5 n.4 (assessors are

obligated to correct assessment errors when carrying out their section 708 responsibilities)

 

 

Significance of April 1st—“doom day”—is to fix tax liability, 36 M.R.S.

§§ 502, 708, and it also provides a filing deadline in some circumstances

 

          New Marblehead North Housing Corp. v. Taylor, No. 90-10, at 5-6

(exemption)

          Finance Authority of Maine v. City of Caribou, No. 90-36, at 2

Russell v. Town of Fryeburg No. 91-33, at 2 (tree growth)

          Haskell v. Town of Phippsburg, No. 96-004, at 2 (farmland and

open space)

          Crosby v. Town of Belgrade, No. 98-022, at 1 (tree growth)

          Sayer v. Town of Canton, No. 99-022, at 2 (farmland and open space)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 44, 56, 61 (exemption; 36 M.R.S. § 652, last ; but that paragraph does not itself speak to consequences of a late application)

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

at 11 n.10 (tree growth)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 27

                   (abatement)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 4

(abatement; tax year runs from April 1st to next April 1st; taxes are determined as of April 1st; tax status is fixed as of April 1st)

          KeyBank National Ass’s v. Town of Phippsburg, No. 2006-002,

                   at 4 n.5

 

                  

Relevance of events occurring, or of information obtained, after April 1st of tax year at issue

 

          GTS Foreside Ltd. v. Town of Falmouth, No. 91-12, at 2

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

with Landco Realty Co. v. City of Biddeford, No. 93-70, at 6

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49 & 92-55–92-64, at 4

          Alpine Realty Trust v. City of Biddeford, No. 93-72, at 2

          Maine Orion Properties v. Town of Falmouth, No. 93-107, at 2

Davis v. Town of Lamoine, No. 2002-003, at 3 (town may withdraw

property from tree growth even if it learns after April 1st of noncomplying use of property)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 27-28

(information brought to attention of town after both doom date and commitment date was too late)

U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 5

(events occurring after April 1st are deemed to have occurred in a separate tax year)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 5 (where taxpayer did not own property on April 1st,

                   the Board lacks jurisdiction over appeal of that property

                   properly appealed along with other properties)

 

 

Assessor can change assessment before commitment without this being considered an abatement

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 28 n.15

 

 

Signed return receipt belies town’s claim that it never received taxpayer’s communication with town

 

          Needham v. Town of Brooklin, No. 92-17, at 3 (letter indicating

gross income from farmland)

 

 

The Board’s jurisdiction

 

Chatfield v. Town of Rockport, No. 91-56, at 3 (where Board has no

subject matter jurisdiction, appeal must be dismissed)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 54 (three aspects: personal jurisdiction, subject matter jurisdiction, and the scope of its statutory authority)

          Hamlin v. City of Lewiston, No. 2000-018 at 1 (petitioner’s appeal

asked Board to do something it has no authority to do: declare him the owner of property)

GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

          Mall I), at 5 (where taxpayer on appeal did not own property on

          April 1st, appeal on that property must be dismissed); at 10

          (where taxpayer by clerical error failed to include a parcel in its

          petition for assessment review, Board does not have jurisdiction

          over that parcel)

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 9 (subject matter

                   jurisdiction at issue)

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

at 10 (order on motion to dismiss; discussing meaning of subject matter jurisdiction); at 12 (listing statutes that define the Board’s subject matter jurisdiction)

Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 1

          (jurisdiction means adjudicatory authority); at 32 (Board has no

          jurisdiction over untimely appeal, and appeal must be dismissed)

          Down East Hospitality Partners, LLC v. Town of Lincolnville,  

No. 2012-010, at 5 (dismissal order; Board has no subject matter jurisdiction where party failed to appeal to board of assessment review as required, and appeal must be dismissed)

           

 

 

The Board has a duty to inquire into its jurisdiction

 

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 12

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 11

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 5 (order on jurisdiction)

Wescott & Payson II v. City of Saco, 2006-006, at 1 (order on

          jurisdiction)

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 9

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 4

 

 

A party must affirmatively demonstrate that the Board has jurisdiction

 

          Smith v. Town of Livermore Falls, No. 2010-008, at 6 (order on

                   jurisdiction; tree growth case)

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 8 (tree growth case; if

                   petition for assessment review, response, and information

                   sheets do not do so)

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 4

 

 

Parties cannot confer jurisdiction by concession, agreement, waiver, or admission by pleading

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 54-55, 56

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 11

          Town of Abbott v. Maine Revenue Services, No. 2004-008, at 5

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 11

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 5 (order on jurisdiction)

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 3-4, 4

 

 

The Legislature’s use of equalized valuation for jurisdictional purposes is to provide a level playing field for taxpayers who may be taxed at different assessment ratios

 

          Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

003-001 & 2003-002, at 7-8 (equalized valuation need not be considered if assessed valuation is $1,000,000 or more), at 8-9 (discussion of which assessment ratio used by Maine Revenue Services is appropriate)

 

 

The Board has no jurisdiction if property is valued at less than the statutory minimum (formerly $500,000, now $1,000,000)

 

          Ames Dept. Store, Inc. #347 v. Town of Skowhegan, No. 88-19, at 2

                   (section 843(1-A))

          Wesson v. Town of Bremen, No. 91-02, at 3 (section 843)

          Sawyer Environmental Recovery Facility v. Town of Hampden,

No. 93-34, at 1 (section 843(1-A))

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007, at 4

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009,

at 3 n.2

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 5 (order on jurisdiction), confirmed by Board, June 4, 2004, at 1 (decision on jurisdiction)

See Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 2

Peaker v. City of Biddeford, 2003-018, at 1 (order on jurisdiction),

confirmed by Board, Mar. 31, 2005, at 1-2 (decision on jurisdiction)        

Town of Alfred v. Schiavi, Nos. 2005-010, 2005-011, 2005-012,

2005-013 & 2005-014, at 2

Wescott & Payson II v. City of Saco, 2006-006, at 2 (order on

          jurisdiction)

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 2

Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 3

          (whether or not municipality has a board of assessment review)

         

 

Remedy for failure to meet $1,000,000 requirement is dismissal of appeal

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 68

          Riverview Timeshare Trust v. Town of Bethel, No. 2002-009, at 2, 6

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

                   No. 2003-019, at 16

Wescott & Payson II v. City of Saco, 2006-006, at 3 (order on

          jurisdiction)

 

 

“Nonresidential property or properties with an equalized valuation of $1,000,000 or greater either separately or in the aggregate,” 36 M.R.S.

§§ 843(1-A), 844(2)

 

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 12-13 (order on jurisdiction; does not refer to (1) nonresidential properties of any value and (2) residential properties of that value, but rather to a single taxpayer being able to aggregate nonresidential properties that are, alone, less than that value), confirmed by Board, June 4, 2004 (decision on jurisdiction)  

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 9 n.6

          Town of Alfred v. Schiavi, Nos. 2005-010, 2005-011, 2005-012,

                   2005-013 & 2005-014, at 2-3

Wescott & Payson II v. City of Saco, 2006-006, at 2, 3-4 (order on

          jurisdiction)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 2

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 2

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 2

 

 

Board has not decided if the Board retains jurisdiction if one or more properties aggregated to obtain $1,000,000 in value are abandoned, thereby leaving any remaining parcels at less than $1,000,000

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 2 n.1

 

 

Factors to consider in determining if aggregation is appropriate are, in order, ownership, commonality of interests, and contiguity

 

          Town of Alfred v. Schiavi, Nos. 2005-010, 2005-011, 2005-012,

                   2005-013 & 2005-014, at 5

 

 

A taxpayer need not challenge the assessments of all its lands that may be aggregated for jurisdictional purposes

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 14-15

 

 

Different property owners may not aggregate individually owned properties, even though they have common interests, to meet the $1,000,000 require-ment giving the Board jurisdiction

 

          Riverview Timeshare Trust v. Town of Bethel, No. 2002-009, at 5, 6

          Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

2003-001 & 2003-002, at 2 n.3

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

                   No. 2003-019, at 10      

 

 

The Board will not simply accept form of tax bills, but will inquire into the nature of the property being taxed, for purposes of determining its jurisdiction

 

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 10-12 (tax bills need not be as specific for assessment purposes as for lien purposes)

 

 

The Board now has no jurisdiction over residential properties, and such appeals are to be dismissed

 

          Wesson v. Town of Bremen, No. 91-02, at 3

          Lauder v. Town of South Bristol, No. 91-07, at 1

          Hood Trust v. Town of South Bristol, No. 91-08, at 1

          Page v. Town of Damariscotta, No. 99-014, at 5, 7 n.6

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 11-13 (order on jurisdiction; where Board has no subject matter jurisdiction, appeal must be dismissed), confirmed by Board, June 4, 2004, at 1 (decision on jurisdiction)

          See Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 2

Peaker v. City of Biddeford, 2003-018, at 1 (order on jurisdiction),

confirmed by Board, Mar. 31, 2005, at 1-2 (decision on jurisdiction)

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 13 (timeshares sold to individuals are residential properties)

          Town of Alfred v. Schiavi, Nos. 2005-010, 2005-011, 2005-012,

                   2005-013 & 2005-014, at 3

          Turner & Buchanan v. Maine Revenue Services, Nos. 2006-010 &

                   -011, at 1-2 (collecting cases)

Wescott & Payson II v. City of Saco, 2006-006, at 2 (order on

          jurisdiction)

          Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016, at 4, 6

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 3

 

 

History of the Board’s hearing residential appeals, and legislative history

 

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 5-9, 10, 13 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

 

 

Where taxpayer claims property is both residential and nonresidential,

the Board will not separate the parts of the property in order to confer jurisdiction when it finds property is residential

 

          Wesson v. Town of Bremen, No. 91-02, at 3

 

 

The Board has an obligation to distinguish nonresidential from residential properties as a component of determining its jurisdiction

 

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

                   No. 2003-019, at10-11

 

 

Definition of “nonresidential property,” 36 M.R.S. §§ 843(1-A), 844(2)

 

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 9 n.9 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

 

 

“Nonresidential property” does not mean “property owned by a   nonresident”

 

          Lauder v. Town of South Bristol, No. 91-07, at 2

          Hood Trust v. Town of South Bristol, No. 91-08, at 2

 

 

“Nonresidential” in 36 M.R.S. §§ 843 and 843(1-A) was not defined originally, but covers apartments not owner-occupied

 

          New Marblehead North Housing Corp. v. Taylor, No. 90-10, at 2

Lincoln Realty Associates v. Town of Lincoln, No. 91-103, at 1-2

Wescott & Payson II v. City of Saco, 2006-006, at 2 (order on

          jurisdiction)

 

 

Parcels of a residential development held for sale are business inventory which are nonresidential properties for purposes of the Board’s jurisdiction

 

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 8 n.6

 

 

Timeshare properties held by developer for sale, but not yet sold, are nonresidential properties within the jurisdiction of the Board

 

          Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

2003-001 & 2003-002, at 6-7

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 10

 

 

Municipality’s authority to permit or require management entity to collect taxes for timeshare owners, 33 M.R.S. § 593(4)

 

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 13-15

 

 

It is the burden of a party seeking to enforce the statute of frauds to affirmatively raise the issue

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 53 n.23

 

 

A mortgage is an interest in land

 

Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 44

 

 

A mortgage is a contract

 

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 44

 

 

Role of Maine State Housing Authority and municipal housing authority

 

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97, at 5

                   (MSHA)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025,

                   at 14 n.2 (MSHA); 16 n.3 (city authority)


II.  Procedural Issues

 

All steps for perfecting a tax appeal are jurisdictional and must be complied with strictly

 

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 2

 

 

What constitutes an application for abatement

 

          Wells Industrial Development Corp. v. Town of Wells, No. 93-67, at 3F

                   (letter enclosing an appraisal and indicating the appraised

value of property is lower than assessed value was found by Board to be intended to open negotiations and is not an application, particularly when followed by a formal application)

 

 

Who can file an application for abatement on behalf of a corporation

 

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 2

                   (non-profits: 13-B M.R.S. §§ 403, 710, 719)

 

 

Filing requirements of 36 M.R.S. § 841(1)

 

          Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 93-113,

at 2 (request for abatement based on valuation, not error, is not within this section)

 

 

Time requirements for applying for an abatement, 36 M.R.S. § 841(1)(1st ¶): within 185 days from commitment

 

          Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 93-113,

at 2 (Board applied time in effect at time of commitment of taxes, not shortened period later put into effect)

          UAH Hydro Kennebec v. Town of Winslow, Nos. 95-120 & 95-150,

at 1 (185-day period to apply for abatement after commitment cannot be extended by agreement of the parties)

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 1-2 (185-

day requirement met when application mailed on 185th day)

          Friendly Ice Cream Corp. v. City of Brewer, No. 97-011, at 1-2 (185-day

period to apply for abatement after commitment cannot be extended when no intent to deceive is shown)

Sayer v. Town of Canton, No. 99-022, at 2 & n.1, 3 (farmland case)

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007, at 2

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009, at 2

          Carroll v. Town of Cornish, No. 2001-002, at 3 (Decision I)(farmland

                   case)

          Davis v. Town of Lamoine, No. 2002-003, at 2 (tree growth case)

          Curtis v. Town of Sherman, No. 2004-005, at 3 (order on jurisdiction;                 tree growth case)

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 1-2 & n.1 (order on jurisdiction)

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 6

                   (tree growth case; one of three time periods in section 841(1))

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

                   at 3-4 (tree growth case)

          Bayroot, LLC v. Highland Plantation, Nos. 2009-004, -005 & -033

at 2-3 (tree growth case; errors relating to valuation of property must be filed within 185 days from commitment although section 841(1) does not speak of valuation)

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 1 (tree growth and open space case)

McLaughlin v. Town of Dexter, No. 2010-001, at 1, 10, 12 (Board does not have discretion under any circumstances to extend the 185-day period following commitment in which a taxpayer can request an abatement); 11 (Board must dismiss an appeal in which the taxpayer did not request an abatement within 185 days of commitment)

          Smith v. Town of Livermore Falls, No. 2010-008, at 3-4 (tree growth

case)

          Haggard v. Town of Swan’s Island, No. 2010-012, at 5 (tree growth

          case; Board must dismiss an appeal in which the taxpayer did not request an abatement within 185 days of commitment); at 4-5 (taxpayer excused from complying when town affirmatively misstated how and when she could challenge withdrawal penalty)

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 1

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 7,

                   21, 28

 

 

Assessors on their own initiative may revisit valuation within one year of commitment

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 6

 

 

Three-year backwards reach of 36 M.R.S. §§ 713, 841(1)(2nd ¶)

 

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-21, 92-94 &

92-95, at 5

          Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 93-113,

at 1

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

at 6, 11-12, 13 (where assessors in tree growth case granted abatement for one year, even though not required to do so, it was also required to grant abatement for the other two years within the reach of section 841(1) when the evidence for those two years was identical as for the one year; assessors authority not dependent on taxpayer’s satisfying section 579)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 32 n.16

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002,

                   at 6 (correction of illegality, error, or irregularity other than                      valuation, from one to three years after commitment); at 10-11

(taxpayer cannot challenge more-than-three-year old tree growth classification by challenging withdrawal penalty)

         

 

Time in which to apply for abatement cannot be waived (in the absence of intentional misleading by municipality)

 

          Friendly Ice Cream Corp. v. City of Brewer, No. 97-011, at 2 (dictum on

                   waiver of time limit)

          Curtis v. Town of Sherman, No. 2004-005, at 5 (order on jurisdiction)

          Smith v. Town of Livermore Falls, No. 2010-008, at 5 (order on

                   jurisdiction; noting dictum in Curtis)

Haggard v. Town of Swan’s Island, No. 2010-012, at 5

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 4

See Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at

          28, 31

 

 

Taxpayer cannot avoid compliance with abatement application or appeal requirements simply because he may believe the process will be futile

 

          Curtis v. Town of Sherman, No. 2004-005, at 5 (order on jurisdiction)

 

 

Taxpayer may file only once for abatement for each tax year, at least on the same basis, and the first denial is controlling

 

          Perkins v. Town of Kittery, No. 97-002, at 2 (this is so even though

taxpayer claimed to have obtained additional information on valuation after denial)

 

 

Taxpayer filed twice, on different grounds

 

Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

          at 15 n.13 (noting cases on taxpayer’s right to file appeal (to

          municipal assessors between one and three years) when first

appeal was untimely because premature)

 

 

Where first application for abatement was dismissed by city as untimely, but was filed without authorization, a second application is nonetheless invalid where city was not informed of lack of authorization

 

          Penobscot Bay Development Co. v. City of Belfast, No. 90-41, at 3

 

 

Although one does not necessarily have the right to apply twice for an  abatement on the same property for a single tax year, where the town denied a first application “as presented,” it “reconsidered” its denial when the taxpayer resubmitted her application

 

          Davis v. Town of Lamoine, No. 2002-003, at 2-3

 

 

Deemed denials, 36 M.R.S. § 842

 

James River Corp. v. City of Old Town, No. 86-12, at 2

J. J. Nissen Baking Co. v. City of Portland, No. 86-13, at 2

A.   C. Lawrence Leather Co., Inc. v. Town of Paris, No. 87-06, at 2-3

Maine Central Railroad Co. v. Town of Dexter, No. 89-03, at 3

Penobscot Bay Development Co. v. City of Belfast, No. 90-41, at 2

Filaroska v. Town of Vienna, No. 90-44, at 1 (tree growth)

Marine Atlantic, Inc. v. Town of Bar Harbor, Nos. 91-03 & 91-52,

at 3

          Mountain View Associates v. Town of Madison, No. 91-35, at 2

                   (“deemed denied by operation of law”)

          A-R Cable Services – Me., Inc. v. City of Lewiston, No. 91-37, at 2-4

          Ferguson v. Town of Otisfield, No. 91-66, at 1 (tree growth)

          Robertshaw Controls Co. v. Town of Kittery, No. 92-10, at 1-2

          Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43, at 2

          Phillips v. Town of Rangeley, No. 95-137, at 2

          Seaside Hotel Associates v. Town of Kennebunkport, No. 96-019,

at 1-2

          Sayer v. Town of Canton, No. 99-022, at 2 (farmland and open

space law)

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 2, 7

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009, at 3

          Carroll v. Town of Cornish, No. 2001-02, at 2-3 (Decision I), at 4

(Decision II)(farmland)

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 2 & n.3 (order on jurisdiction)

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016, at 5

                   (tree growth)

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 2 (order on motion to dismiss)

          Gerrity Family Ltd. Partnership v. Town of East Machias, Nos. 2011-036

                   & 2013-011, at 1

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 2

 

 

Deemed denials operate to protect the taxpayer from having one’s appeal languish

 

Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 2 n.1

                  

 

Deemed denials are inevitable when a board of assessment review is inactive

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 2 n.1

         

         

Appeal period of 60 days in deemed denials starts on date of deemed denial; once assessors fail to act an application for abatement is deemed denied on the 60th day

 

Maine Central Railroad Co. v. Town of Dexter, No. 89-03, at 3

          Penobscot Bay Development Co. v. City of Belfast, No. 90-41, at 2

          Mountain View Associates v. Town of Madison, No. 91-35, at 2

          Ferguson v. Town of Otisfield, No. 91-66, at 1

          Robertshaw Controls Co. v. Town of Kittery, No. 92-10, at 2

          Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43, at 2

          Sayer v. Town of Canton, No. 99-022, at 2

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 5 n.2, 10

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 2 & n.5 (order on jurisdiction)

 

 

A dismissal and a denial are very different

 

          Caleb Affordable Housing Associates, L.P. v. City of Saco, Nos. 2008-

                   021— -024 and Falls Development Associates, L.P. v. City of

                   Saco, No. 2008-026, at 2 n.1 (order on motion to deny pending

                   appeals)

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 29

 

 

Municipalities are to dismiss, not merely deny, untimely applications or appeals

 

          Curtis v. Town of Sherman, No. 2004-005, at 4 n.3 (order on

                   jurisdiction)

Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

                   at 15 n.11

          Smith v. Town of Livermore Falls, No. 2010-008, at 7 n.4 (order on

                   jurisdiction)

          RiverRidge Associates v. Town of Kennebunk, No.2011-033, at 5 n.8

                   (dismissal order; and only the jurisdiction of the Board, not a

                   board of assessment review, is susceptible to consideration

                   under section 271(5))

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 29

 

 

Taxpayers are presumed to know the law

 

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 27

 

 

Taxpayers are responsible for knowing what the status of their property is

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002,

                   at 14 & n.8

          Pierce v. Maine Revenue Services, No. 2006-007, at 4

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 27

 

 

Assessors are under no obligation to notify taxpayers of a deemed denial, and taxpayer has responsibility to keep track of appeal period deadlines

 

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 5 n.2

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009, at 8

                   (Board notes that assessor did not notify taxpayer that he

                   intended to allow the 60-day period to lapse)

 

 

Requirement of consent (in writing) to extend period for decision

 

          James River Corp. v. City of Old Town, No. 86-12, at 1

          Northeast Bank of Sanford v. Town of Sanford, No. 93-128, at 2

                   (agreement to extend time must be documented)

          Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43, at 2

(assessors’ tabling of application taken as an agreement on part of taxpayer to delay decision)

          Seaside Hotel Associates v. Town of Kennebunkport, No. 96-019, at 3

(county commissioners were deemed to have denied appeal when they failed to issue written decision for over 90 days)

          Maine Public Service Co. v. City of Caribou, Nos. 97-108 & 98-008,

at 2-3 (cooperative course of conduct; conduct after the 60th

day may be relevant to conduct during the 60-day period)

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007, at 3

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009,

at 3-4

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 2 n.1

                   (consent may be implicit despite language of statute)

 

 

Whether negotiations and correspondence amount to an implied extension of time for city assessors to issue a decision

 

          KNL Associates v. City of Lewiston & Central Way Realty v. City of

Lewiston, Nos. 92-55–92-64, at 2-3

          Northeast Bank of Sanford v. Town of Sanford, No. 93-128, at 2

                   (letter from taxpayer’s representative to taxpayer indicating

date of hearing before board of assessment review, based on letter from town, constituted sufficient evidence of an agreement to extend time)

          Seaside Hotel Associates v. Town of Kennebunkport, No. 96-019, at 3

(implicit agreement must be interpreted reasonably so taxpayer can plan for further appeal)

          McGhee v. Town of Maxfield, No.96-044, at 2 (where selectman gave

taxpayer schedule of meetings, offered to put him on the agenda, and requested taxpayer let him know when he wanted to have matter heard, taxpayer constructively agreed or acquiesced to having matter continued generally)

          Maine Public Service Co. v. City of Caribou, Nos. 97-108 & 98-008,

at 2 (cooperative course of conduct)

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 12-18 (same)

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009,

at 4-9 (course of conduct did not show that taxpayer implicitly or in writing agreed to extend the 60-day period)

 

 

Consent to extend period for decision cannot be made after the deemed denial date

 

          Marine Atlantic, Inc. v. Town of Bar Harbor, Nos. 91-03 & 91-52,

                   at 4 (No. 91-52)

KNL Associates v. City of Lewiston & Central Way Realty v. City of

Lewiston, Nos. 92-55–92-64, at 4

          Northeast Bank of Sanford v. Town of Sanford, No. 93-128, at 1 n.1, 2

                   (consent given within 60-day period)

          McGhee v. Town of Maxfield, No.96-044, at 3 (implicit agreement to

extend time for assessors to act was made within the 60-day period)

          Northeast Empire Ltd. Partnership v. Town of Livermore Falls, Nos.

97-101 & 98-005, at 3 (taxpayer conceded no agreement existed within 60 days from date of application, and subsequent conduct could not foist jurisdiction on Board; Board stresses delay and litigation long after filing applications for abatement)

          Maine Public Service Co. v. City of Caribou, Nos. 97-108 & 98-008,

at 3 (cooperative course of conduct found to exist within the

60-day period)

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 3-4 n.1 (rejecting Superior Court decision holding that agreement can be reached after the 60-day period expired)

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009,

at 4, 9

 

 

Contrary view would render 60-day time limit meaningless, create hardship and delay, reduce parties’ control over litigation, preclude appeals, and undermine finality

 

          Northeast Empire Ltd. Partnership v. Town of Livermore Falls, Nos.

97-101 & 98-005, at 3

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 4 n.1

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009,

at 2, 3, 4

 

 

Law Court decision in Kokernak v. Town of Vienna applies with equal force to 36 M.R.S. §§ 843 and 844

 

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007, at 3

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009,

at 3 & n.3

 

 

Where town issued a decision after the deemed denial date, that decision is of no effect (N. B.: this point must be considered overruled by the Law Court’s decision in International Woolen Co., Inc. v. Town of Sanford, at least where an agreement to extend the 60-day period might be inferred)

 

          Page v. Town of Damariscotta, No. 99-014, at 4 n.3

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007, at 9

 

 

Where town issued a decision after the deemed denial date, the Board will utilize the date of notice of the decision, not the deemed denial date, as the date on which the appeal period to the Board begins to run

 

          Marine Atlantic, Inc. v. Town of Bar Harbor, Nos. 91-03 & 91-52,

at 3 (No. 91-03)

 

 

What constitutes notice that application has been granted

 

          Wesson v. Town of Bremen, No. 93-88, at 1-2 (no prescribed form

required for granting application for open space classification)

 

 

What constitutes notice of a denial, triggering appeal period or time to request an abatement

 

          Filaroska v. Town of Vienna, No. 90-44, at 2 (sending tax bill)

          The Salvation Army v. City of Lewiston, No. 91-29 (Case II), at 5

(letter stating property is not tax exempt and will remain on tax rolls is a denial triggering appeal period)

          Key Bank of Maine v. Town of Old Orchard Beach, No. 92-15, at 3

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 3-4 (order on jurisdiction; Board has not finally decided, but notes 36 M.R.S. § 842 requires written decision by municipality), confirmed by Board, June 4, 2004

                   (decision on jurisdiction)

          Pierce v. Maine Revenue Services, No. 2006-007, at 3, 5 (transfer tax

                   declaration)

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 16

(application for abatement); 24-25 (denial under 36 M.R.S. § 1109(4)(1st ¶) is not appealable)

 

 

Whether information sent by town was sufficient notice of appeal rights

 

          Wells Industrial Development Corp. v. Town of Wells, No. 93-67, at 4

                   (sending taxpayer Property Tax Bulletin #10 does not

constitute notice)

Everett v. Town of Waterford, No. 93-136, at 1 (question left open

whether by dispensing Property Tax Bulletin #19 to town

taxpayers it had given notice of appeal rights)

         

 

Appeal process summarized

 

          Filaroska v. Town of Dresden, No. 91-88, at 2-3

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 18-19

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 2-5 (36 M.R.S. §§ 843 and 844 differ according to whether municipality has a board of assessment review)

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009,

at 2-3

          Davis v. Town of Lamoine, No. 2002-003, at 2 (tree growth case)

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 3 n.1, 3-5

 

 

Three factors determine the course of an appeal: (1) whether property is residential or nonresidential; (2) whether or not the property has an equalized valuation of $1,000,000 or greater; and (3) whether or not the municipality has a board of assessment review

 

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 3

 

 

An aggrieved taxpayer cannot skip a step in the appeal process and invoke the jurisdiction of the appellate body appealed to

 

          Down East Hospitality Partners, LLC v. Town of Lincolnville,

                   No. 2012-010, at 4 (dismissal order)

 

 

The Board cannot hear an appeal that has not been properly appealed through the municipal level

 

          Cobalt Properties, Ltd. v. Town of West Gardiner, Nos. 2012-006

                   & -016, at 2 (prehearing order)

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 28-29

                   (filing premature either as an application for abatement or as an

                   appeal); at 31 (timely requesting an abatement after commitment

                   is a condition precedent to an appeal)

 

 

Sections 843(1) and 843(1-A): In cases involving the $1,000,000 threshold,    one must first appeal a decision at the assessor level to a board of assessment review, if one exists, in order to appeal properly to the Board of Property Tax Review

 

          Down East Hospitality Partners, LLC v. Town of Lincolnville,

No. 2012-010, at 2-3 (dismissal order)

 

 

Appeals in residential cases from the decision of the local assessors (to county commissioners and then to Superior Court) or board of assessment review (directly to Superior Court), 36 M.R.S. §§ 843(1), 844(1)

 

Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 3 n.1

 

 

Appeals in nonresidential cases involving $1,000,000 or more may be to either county commissioners or the Board where there is no board of assessment review, 36 M.R.S. § 844(2)

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 15 n.5

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 4

 

 

Appeals in unclassified property cases must be to the local board of assessment review or county commissioners

 

          Tidebrook Conservation Trust v. Town of Freeport, No. 93-52, at 3

(Decision I), at 1 (Decision II)

          McGhee v. Town of Maxfield, No.96-044, at 4

 

 

County commissioners have no role in an appeal from a board of assessment review, 36 M.R.S. § 843(1-A); appeal is directly to the Board

 

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 3 n.1, 4

 

 

If a municipality does not have a board of assessment review, an appeal concerning nonresidential property is to the county commissioners or, in the alternative, if the property has an equalized valuation of $1,000,000 or greater, to the Board

 

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 3 n.1, 4-5,

                   5-6 (there is no requirement of an appeal to the county

                   commissioners preceding an appeal to the Board)

 

 

Under 36 M.R.S. § 843(2), appeals from primary assessing areas are directly to the Board

 

          Danny’s, Inc. v. Town of Old Orchard Beach, No. 91-38, at 1, 2

          Schurman v. State of Maine, Bureau of Taxation, No. 91-62, at 1

          Hardy, Wolf & Downing v. City of Lewiston, No. 92-06, at 1

          Key Bank of Maine v. Town of Old Orchard Beach, No. 92-15, at 1

          Pine Brook Associates v. Town of Old Orchard Beach, No. 92-98, at 1

          Given v. City of Lewiston, No. 92-103, at 1

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 1

          Harris v. City of Lewiston, Nos. 93-19–93-22, at 1

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

93-24, at 1

          Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 1

          Friendly Ice Cream Corp. v. City of Lewiston, No. 95-158, at 1

          The Salvation Army v. City of Lewiston, No. 96-031, at 1

          Pope v. Town of Old Orchard Beach, Nos. 96-39–96-41, at 1

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 1

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 5-6 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

 

 

Once primary assessing area adopted a board of assessment review, initial appeal was to that board

 

          Fleet Bank v. City of Lewiston, Nos. 97-113–97-116, at 1

 

 

Appeals from unorganized territories are directly to the Board, 36 M.R.S.

§§ 302, 843(2)

 

          Moore v. Bureau of Taxation, No. 93-110, at 1

          Corliss v. Bureau of Taxation, No. 93-132, at 1

          Big Lake Camp Meeting Ass’n v. Bureau of Taxation, No. 95-013, at 1

         

 

Filing fees

 

          Developers Diversified Cooks Corner, L.P. v. Town of Brunswick, Nos.

                   2009-022 and -025 (prehearing order), at 1-2 (appeal will be

docketed if filed without the fee, but no further action will be taken; at 3 (dismissal improper when Board Secretary has not notified taxpayer that filing fee has not been paid)        

 

 

Where a local board of assessment review has affirmed denial of application for abatement, taxpayer does not risk an increase of municipality’s valuation, which is presumed correct, upon appeal to the Board

 

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 18-19

 

 

Cases in which the municipality or assessor appealed from adverse decision of a board of assessment review

 

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

with Landco Realty Co. v. City of Biddeford, No. 93-70, at 1-2

          City of Belfast v. Cooper, No. 95-154, at 1

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 6

 

 

There is no requirement of a cross-appeal by municipality to defend assessment modified by a board of assessment review or county commissioners

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at

7-10

 

 

Whether 36 M.R.S. § 843(4) or § 844(4)—or former section 582-A in tree growth cases—requires suspension or dismissal of appeals when taxes for previous year have not been paid (N.B.: This is now governed by Law Court decision in Interstate Food Processing Corp. v. Town of Fort Fairfield, which reversed the Board’s dismissal in that case)

 

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49, at 2-3 (order on motion for stay)

          Eliot Commons Associates v. Town of Eliot, Nos. 93-73, 93-74 &

95-011, at 4 (failure to pay taxes when due results in dismissal)

Dale Henderson Logging, Inc. v. City of Old Town, No. 94-05, at 2

(tree growth case; former 36 M.R.S. § 582-A, now repealed, which required payment of due taxes did not specifically preclude taxpayer from appealing its assessment should it not pay its taxes before appealing)

          Carle Street Associates v. City of Waterville, Nos. 94-23 & 95-162,

at 1-2 (taxes paid in installments after due date but before

appeal to board of assessment review were not paid when due and appeal must be dismissed)

          KNL Associates v. City of Lewiston, Nos. 94-30–94-33, consolidated

with Central Way Realty Associates v. City of Lewiston,

Nos. 94-34–94-42, at 2-4 (failure to pay taxes by due date cannot result in just a suspension—statute is silent to length of suspension—but in dismissal)

          Mobile Imaging Consortium v. City of Portland, Nos. 94-44 & 96-32,

at 2 (Board found taxes were timely paid)

          Estate of Perkins v. Town of Castine, No. 94-47, at 1 (tree growth

case; Board has no jurisdiction where taxes not paid by due

date, notwithstanding pendency of petition for abatement)

          Brower, Denis & Powers v. Town of Starks, No. 95-007, at 1

(tree growth case; Board suspended hearing until taxes were paid)

          Interstate Food Processing Corp. v. Town of Fort Fairfield,

No. 95-105, at 2-3 (failure to pay taxes when due results in

dismissal that cannot be cured by payment after the fact)

          UAH Hydro Kennebec v. Town of Winslow, Nos. 95-120 & 95-150,

at 2 (section 844(4); where town allows payment of taxes in installments, taxpayer need not pay entire tax before first installment in order to appeal)

          Madison and Anson Water District v. Town of Embden, No. 96-036,

at 1 (by contrast, no requirement of payment of taxes before seeking declaratory or injunctive relief)

          McGhee v. Town of Maxfield, No. 96-044, at 1-2 (tree growth case;

nonpayment of taxes requires suspension of appeal; Board found taxes were paid)

Country Host Inn v. City of Presque Isle, No. 96-046, at 1-2 (before

1996, Board had no jurisdiction; failure to pay taxes when due results in dismissal that cannot be cured by payment after the fact)

Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 2 & n.2 (taxpayer need pay only taxes due for the year in issue, not a subsequent year)

          Riverview Timeshare Trust v. Town of Bethel, No. 2002-009, at 1-2

n.1 (parties agreed that appeals of property owners who had not timely paid taxes must be suspended)

          Curtis v. Town of Sherman, No. 2004-005, at 3 & n.1 (order on jurisdic-

                   tion; appeals in tree growth cases are not suspended when taxes             have not been paid)

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

Services, Nos. 2009-020 & -021, at 6 (no need to pay assessment in tree growth case in order to appeal)

          Haggard v. Town of Swan’s Island, No. 2010-012, at 10-11 n.8 (same)

 

 

Purpose of 36 M.R.S. § 843(4) was to assist municipalities held hostage by major taxpayers that refused pay taxes while pursuing abatements

 

          KNL Associates v. City of Lewiston, Nos. 94-30–94-33, consolidated

with Central Way Realty Associates v. City of Lewiston,

          Nos. 94-34–94-42, at 3

 

 

Due date for payment of taxes is not date of commitment of taxes, but is date after which taxes are delinquent and interest accrues

 

Maine Public Service Co. v. City of Caribou, Nos. 93-137 & 95-152,

at 2-3

          Country Host Inn v. City of Presque Isle, No. 96-046, at 1-2

 

 

Interim procedural order of the Board is not appealable

 

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 2-3 n.3

 

 

Time during which a taxpayer may seek to appeal the denial of an abatement or exemption request

 

Spencer Press of Maine, Inc. v. Town of Wells, No. 86-10, consoli-

dated with Shaw’s Realty, Inc. v. Town of Wells, No. 86-11, at 3

          James River Corp. v. City of Old Town, No. 86-12, at 2-3

J. J. Nissen Baking Co. v. City of Portland, No. 86-13, at 2

A. C. Lawrence Leather Co., Inc. v. Town of Paris, No. 87-06, at 2-3

The Salvation Army v. City of Lewiston, No. 91-29 (Case II), at 5

          (exemption)

Ferguson v. Town of Otisfield, No. 91-66, at 1 (60 days in tree

growth cases)

          Key Bank of Maine v. Town of Old Orchard Beach, No. 92-15, at 3

                   (60 days from notice of denial; where date of notice is not

clear, Board assumes it was within 10 days of date of denial)

          Town of Washington v. Bureau of Taxation, No. 92-37, at 1 (45 days

in municipal equalization cases, 36 M.R.S. § 272(1))

Winslow v. Town of Falmouth, No. 93-36, at 2 (60 days in tree

growth cases, in accordance with 36 M.R.S. §§ 843 and 844)

          Eastler v. Town of Farmington, No. 93-62, at 2-3 (60 days in

farmland and open space cases, reading 36 M.R.S. § 1118 in conjunction with 36 M.R.S. §§ 841 and 843)

          CFS Ltd. Partnership v. Town of Sanford, No. 93-106, at 1

          Phillips v. Town of Rangeley, No. 95-137, at 3 (within 60 days in

farmland and open space cases, reading 36 M.R.S. § 1118 in conjunction with 36 M.R.S. §§ 841 and 843)

          Keene v. City of Auburn, No. 98-023, at 2 (semble; farmland and

open space case)

          Sayer v. Town of Canton, No. 99-022, at 2 (in farmland and open

space cases, within 60 days from date of notice of decision or from date of deemed denial)

          Town of Standish v. State of Maine, Bureau of Revenue Services,

No. 99-031, at 2 (45 days in municipal equalization cases)

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 5 & n.2 (within 60 days of notice of denial or within 60 days of date of deemed denial)

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009, at 4

          Town of Solon v. State of Maine, Bureau of Revenue Services,

No. 2000-012, at 1 (45 days in municipal equalization cases)

Carroll v. Town of Cornish, No. 2001-02, at 3-4 (Decision I)(within

60 days in farmland cases)

Davis v. Town of Lamoine, No. 2002-003, at 2 (within 60 days of

notice of denial in tree growth cases)

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

at 6, 7 n.7, 8 (same)

          Town of Stockholm v. Maine Revenue Services, No. 2002-017, at 1-2

(45 days in municipal equalization cases)

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 2 n.2, 4 (order on jurisdiction; 30 days to Superior Court; 60 days to Board), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          McLaughlin v. Town of Dexter, No. 2010-001, at 1 (tree growth case)

          Haggard v. Town of Swan’s Island, No. 2010-010, at 7-9 (requirement

                   of notice to taxpayer mandatory when rights of taxpayer would

be prejudiced by erroneous notice; notice instructed her to appeal, not apply for an abatement)

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 7,

                   21, 28-29

 

 

Time for appealing or applying for abatement is mandatory and jurisdictional

                                                                                                  

Spencer Press of Maine, Inc. v. Town of Wells, No. 86-10, consoli-

          dated with Shaw’s Realty, Inc. v. Town of Wells, No. 86-11,

at 3

James River Corp. v. City of Old Town, No. 86-12, at 2

J. J. Nissen Baking Co. v. City of Portland, No. 86-13, at 2

A.   C. Lawrence Leather Co., Inc. v. Town of Paris, No. 87-06, at 2

The Salvation Army v. City of Lewiston, No. 91-29 (Case II), at 5

Ferguson v. Town of Otisfield, No. 91-66, at 2 (tree growth)

Town of Whitefield v. Bureau of Taxation, No. 92-27, at 2

(municipal equalization case)

          Town of Franklin v. Bureau of Taxation, No. 92-35, at 2

                   (municipal equalization case)

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 11

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 3 (order on jurisdiction)(untimely appeal to BAR deprived BAR and Board of jurisdiction)

          Haggard v. Town of Swan’s Island, No. 2010-012, at 5

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 2, 4

                   (dismissal order)

Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 31

          (timeliness is a condition precedent to appeal)

Down East Hospitality Partners, LLC v. Town of Lincolnville,

                   No. 2012-010, at 3 (dismissal order)

Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 5

 

 

Timely notice of appeal is, more precisely, a claim processing rule and a mandatory precondition to the exercise of jurisdiction, and is required to invoke jurisdiction and avoid the finality of an administrative decision

 

          Down East Hospitality Partners, LLC v. Town of Lincolnville,

                   No. 2012-010, at 3-4 (dismissal order)

 

 

There is no doubt the state will be zealous in assessing and collecting taxes but may not be so zealous in giving notice before the state takes action against taxpayers

 

          Haggard v. Town of Swan’s Island, No. 2010-012, at 11

 

 

Administrative boards have no inherent authority to extend or ignore statutory appeal periods

 

          Town of Standish v. State of Maine, Bureau of Revenue Services,

No. 99-031, at 3

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 12

          Town of Solon v. State of Maine, Bureau of Revenue Services,

No. 2000-012, at 2

          Curtis v. Town of Sherman, No. 2004-005, at 6 (order on jurisdiction)

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 4 (order on jurisdiction)

 

 

Because the Board has no jurisdiction over an appeal from the denial of an application for abatement or of the denial of a municipal-level appeal that was not timely requested, the appeal must be dismissed

 

Spencer Press of Maine, Inc. v. Town of Wells, No. 86-10, consolidated

with Shaw’s Realty, Inc. v. Town of Wells, No. 86-11, at 5

J. J. Nissen Baking Co. v. City of Portland, No. 86-13, at 3

Maine Central Railroad Co. v. Town of Dexter, No. 89-03, at 3

          Penobscot Bay Development Co. v. City of Belfast, No. 90-41, at 3-4

          The Salvation Army v. City of Lewiston, No. 91-29 (Case II), at 5

          Ferguson v. Town of Otisfield, No. 91-66, at 2

          Key Bank of Maine v. Town of Old Orchard Beach, No. 92-15, at 3

          Town of Whitefield v. Bureau of Taxation, No. 92-27, at 2

(municipal equalization case)

          Town of Franklin v. Bureau of Taxation, No. 92-35, at 2

                   (municipal equalization case)

          KNL Associates v. City of Lewiston & Central Way Realty v. City of

Lewiston, Nos. 92-55–92-64, at 4 (deemed denial case)

          Winslow v. Town of Falmouth, No. 93-36, at 2

          Eastler v. Town of Farmington, No. 93-62, at 3

          CFS Ltd. Partnership v. Town of Sanford, No. 93-106, at 1-2

          Phillips v. Town of Rangeley, No. 95-137, at 3

          UAH Hydro Kennebec v. Town of Winslow, Nos. 95-120 & 95-150,

at 1

Friendly Ice Cream Corp. v. City of Lewiston, No. 95-158, at 2

Haskell v. Town of Phippsburg, No. 96-004, at 2

          Friendly Ice Cream Corp. v. City of Brewer, No. 97-011, at 2

Northeast Empire Ltd. Partnership v. Town of Livermore Falls,

Nos. 97-101 & 98-005, at 3

          Sayer v. Town of Canton, No. 99-022, at 2

          Town of Standish v. State of Maine, Bureau of Revenue Services,

No. 99-031, at 5

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 56

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 12

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009, at 9

          Curtis v. Town of Sherman, No. 2004-005, at 4 & n.3 (order on                           jurisdiction; tree growth case; untimely application for                                        abatement is to be dismissed, not simply denied)

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 3 (order on jurisdiction)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 5 (untimely appeal at municipal level)

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

                   at 14-15

McLaughlin v. Town of Dexter, No. 2010-001, at 11 (tree growth case;

          late request for abatement)

Smith v. Town of Livermore Falls, No. 2010-008, at 5 (order on juris-

                   diction; tree growth case)

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 2-3

                   (where application for abatement was late, assessor could only

                   reject it as such, and remainder of appeal process was futile); 4

Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 32

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 5

 

 

Appeal to the Board before commitment of taxes is premature and must be dismissed

 

          The Salvation Army v. City of Lewiston, No. 95-119, at 2

          Smith v. Town of Surry, No. 2005-015, at 2 (order on jurisdiction)

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 28-29

 

 

Appeal to municipal officers before the one- to three-year look back period in 36 M.R.S. § 841(1)(2nd ¶) is premature, so the Board has no jurisdiction

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

at 6-9, 14 (appeal pursuant to 36 M.R.S. § 841(1)(2nd¶), allowing municipal officers to correct any illegality, error, or irregularity, but not correct an error in valuation, is not timely if taken prematurely—before one year from denial)

 

 

Where law provides for appeal to another body, or first to another body, appeal to the Board is premature and the Board does not have jurisdiction

 

Filaroska v. Town of Dresden, No. 91-88, at 2 (initial appeal from

denial of request for abatement re unclassified property is to

town, not Board)

          Elifsofan v. Town of Vinalhaven, No. 91-65, at 3 (portions of

property were in tree growth and others were not, so challenge

to enhancement factor used by town on nonclassified portions to recapture revenues lost to land in tree growth is an abatement case, the denial of which must be appealed to county commissioners)

          Robertshaw Controls Co. v. Town of Kittery, No. 92-10, at 2 (where

taxpayer failed to appeal timely to board of assessment review that body had no jurisdiction and further appeal to Board is necessarily untimely)

          Tidebrook Conservation Trust v. Town of Freeport, No. 93-52, at 3

(Decision I)(open space)

          Fleet Bank v. City of Lewiston, Nos. 97-113–97-116, at 1 (appeal

should have been filed first with board of assessment review)

          River Dam Millyard, L.L.C. v. City of Biddeford, No. 98-028, at 1

                   (same)

          Page v. Town of Damariscotta, No. 99-014, at 8 (applications for

abatement under tree growth must be presented first to town)

Down East Hospitality Partners, LLC v. Town of Lincolnville,

          No. 2012-010, at 4 (dismissal order; Board has no jurisdiction if

          party did not appeal to board of assessment review as required)

 

 

Town cannot grant an abatement in a case after an appeal has been taken

 

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-21, 92-94 &

92-95, at 5

 

 

Where town has granted application, contrary to taxpayer’s understanding, an appeal to the Board must be dismissed

 

          Wesson v. Town of Bremen, No. 93-88, at 2

 

 

Fact that town misadvised taxpayer regarding appeal, causing him to lose appeal right, cannot confer jurisdiction on the Board

 

          Enos v. Town of Stetson, No. 93-03, at 3 (appeal to Superior Court)

          Phillips v. Town of Rangeley, No. 95-137, at 3 (appeal to Board)

          Friendly Ice Cream Corp. v. City of Brewer, No. 97-011, at 2

          See Caleb Affordable Housing Associates, L.P. v. City of Saco,

No. 2006-001, at 4 (order on jurisdiction; city’s misadvice to taxpayer to appeal to BAR denial of request for abatement on nonresidential property of more than $1,000,000, when appeal should have been to Board, was inconsequential in circumstances)

          But see Haggard v. Town of Swan’s Island, No. 2010-012, at 4-5, 8-9

(town’s notice misadvised taxpayer of her rights and excused her failure to have applied for an abatement)

 

 

Taxpayer’s misunderstanding appeal process cannot confer jurisdiction on the Board

 

          Eastler v. Town of Farmington, No. 93-62, at 2 (farmland case)

          Phillips v. Town of Rangeley, No. 95-137, at 3 (open space case;

Board notes taxpayer was represented by counsel)

          Curtis v. Town of Sherman, No. 2004-005, at 5 (order on jurisdiction;                 tree growth case)

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 31

                   (town’s errors did not cause taxpayer not to file request for

                   abatement)

                   

 

Appeal incorrectly filed with the Board rather than a board of assessment review and forwarded by the Board to the board of assessment review is not considered thereby filed with that board

 

          Fleet Bank v. City of Lewiston, Nos. 97-113–97-116, at 1

          River Dam Millyard, L.L.C. v. City of Biddeford, No. 98-028, at 1

 

 

Appeal erroneously filed with county commissioners rather than the Board is of no consequence

 

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005, at 8

                   (tree growth case)

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 5

 

 

Purpose of Board Rule 4(A) is to provide the Board with adequate information prior to hearing

 

          A-R Cable Services – Me., Inc. v. City of Lewiston, No. 91-37, at 4-5

          Developers Diversified Cooks Corner, L.P. v. Town of Brunswick, Nos.

2009-022 and -025, at 1 (prehearing order)        

 

 

A notice of appeal to the Board need only provide information required by Rule 4(A), and need not utilize the Board’s form petition

 

          New Marblehead North Housing Corp. v. Taylor, No. 90-10, at 3

          A-R Cable Services – Me., Inc. v. City of Lewiston, No. 91-37, at 4

          Given v. City of Lewiston, No. 92-103, at 2

         

 

What constitutes a petition for assessment review under Rule 4(A)(1)

 

          The Salvation Army v. City of Lewiston, No. 91-29 (Case II), at 5

(letter stating intention to appeal)

A-R Cable Services – Me., Inc. v. City of Lewiston, No. 91-37, at 4

(same)        

          Danny’s, Inc. v. Town of Old Orchard Beach, No. 91-38, at 3

(letter requesting review)

          Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001, passim

(where sufficient form petition was timely filed, petitioner could seek continuance to perfect appeal by more complete petition)

 

 

It is the obligation of a taxpayer to clearly identify what is being appealed

 

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 10

                  

 

It is the taxpayer’s right to control what claims it presents, and this necessarily includes challenging all or only some of the assessments of its lands

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 14    

 

 

A taxpayer is entitled to an annual assessment of property and to a new appeal to the Board

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 4

Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 13-14

 

 

Presentation of case by representations of counsel or stipulation rather than formal admission of evidence approved

 

          Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016, at 2

          Gerrity Family Ltd. Partnership v. Town of East Machias, Nos. 2011-036

                   & 2013-011, at 3 (consolidated decision)

 

 

Board can rely on evidence from previous hearing, if it makes that evidence a part of the record in the case at issue

 

Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 13

 

 

Amending petition

 

          Sawyer Environmental Recovery Facility v. Town of Hampden,

No. 93-34 (taxpayer permitted to amend petition to allege value of property over statutory minimum)

          Eliot Commons Associates v. Town of Eliot, Nos. 93-73, 93-74 &

95-011at 3 (taxpayer permitted to amend petition to reflect true

ownership in name of Eliot Associates)

          Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001, at 5

                   (where taxpayer timely filed facially adequate petition that he

thought should include more information, simultaneously filed motion for enlargement to file more complete petition would be granted in absence of opposition)

UAH-Hydro v. Town of Winslow, 2001-009, at 3 (claims of failure to

state a claim and to include essential allegations in petition for assessment review may be corrected by amendment of petition)

 

 

Purpose of Board Rule 4(B) is to secure just, speedy, and economic determination of appeals

 

          Developers Diversified Cooks Corner, L.P. v. Town of Brunswick, Nos.

                   2009-022 and -025, at 3 (prehearing order)

 

 

Effect of wrong characterization or designation of person to be assessed

 

          Cobalt Properties, Ltd. v. Town of West Gardiner, Nos. 2012-006

& -016, at 3-4 (prehearing order)

 

 

Petition need not be brought in name of “Inhabitants of . . .”

 

          G S Building Systems Corp. v. Town of Pittsfield, No. 98-003, at 1 n.1

 

         

Petition should be brought against the municipality as such

 

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 1. n.1 (order on motion to dismiss)

 

 

Ascertaining when appeal to the Board has been filed: postmark constitutes filing, 36 M.R.S. § 153(1); see also 36 M.R.S. § 271(3-A) (depositing in mail constitutes filing)

 

          Friendly Ice Cream Corp. v. City of Lewiston, No. 95-158, at 2 (appeal

                   filed when mailed; Board’s records do not support taxpayer’s

                   assertion that appeal was mailed on a certain date)

KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 1-2

          Keene v. City of Auburn, No. 98-023, at 2

          Sayer v. Town of Canton, No. 99-022, at 3 (mailing means filing)

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 7 n.4, 10

Carroll v. Town of Cornish, No. 2001-02, at 5 n.4 (Decision I)

Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001, at 3

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 3 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

Town of Waldo v. Maine Revenue Services, No. 2007-001, at 3 & n.1

Brown v. Town of Bucksport, No. 2009-031, at 2-3 n.4 (order on

motion to dismiss; discussing depositing versus postmarking, either of which could mean mailing)

 

 

Presumption of regularity in mailing

 

          McLaughlin v. Town of Dexter, No. 2010-001, at 11-12 (problems with

United States Postal Service on national level are irrelevant to whether taxpayer received proper notice at its post office); 12 (mailing provides sufficient notice pursuant to section 713, as provided by section 706)

 

 

When the Board cannot ascertain date of mailing it will use the date received by the Board as the date of filing

 

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 7 n.4

          Carroll v. Town of Cornish, No. 2001-002, at 5 n.5 (Decision I)

          Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001, at 3 n.1

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 3 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

 

 

Effect of 36 M.R.S. § 153(2) and M.R. Civ.P. 6(a) regarding weekends and holidays

 

          Maine Public Service Co. v. City of Caribou, Nos. 93-137 & 95-152,

at 2 (taxes due on October 1st, a Saturday, were timely paid on October 3rd)

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 7 n.4

          Carroll v. Town of Cornish, No. 2001-002, at 5 n.3 (Decision I)

(where 60th day for deemed denial date was a Sunday, it became Monday by law)

          Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001, at 2-3

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 4 & n.5 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 2 n.2 (order on jurisdiction)

Town of Waldo v. Maine Revenue Services, No. 2007-001, at 3

Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

          at 5 n.4

Brown v. Town of Bucksport, No. 2009-031, at 2 n.3 (order on motion

          to dismiss)

 

 

Pursuant to M.R. Civ.P. 6(a), time periods start on the day following an act or event in issue

 

          Town of Standish v. State of Maine, Bureau of Revenue Services,

No. 99-031, at 4 n.3

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 7 n.4

          Carroll v. Town of Cornish, No. 2001-002, at 5 n.4 (Decision I)

          Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001, at 2-3

                   (petition for assessment review filed, by fax, on last possible

day)

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 4 & n.5 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 2 n.2 (order on jurisdiction)

          Town of Waldo v. Maine Revenue Services, No. 2007-001, at 2-3

 

 

The Board’s Rule 4(A)(2) requires a response within 20 days of notice of petition

 

          MCI International, Inc. v. Town of Andover, No. 88-20, at 2

          MCI International, Inc. v. Town of Andover, No. 89-16, at 2

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 6-7

 

 

But does not require that response be served on taxpayer

 

          MCI International, Inc. v. Town of Andover, No. 88-20, at 2

 

 

And under liberal construction of the Board’s rules, delay in filing response may be excused

 

          MCI International, Inc. v. Town of Andover, No. 89-16, at 3

 

 

Rule 2(B) requires the Board’s rules to be liberally construed

 

          MCI International, Inc. v. Town of Andover, No. 89-16, at 3

          The Salvation Army v. City of Lewiston, No. 91-29 (Case II), at 5

          A-R Cable Services – Me., Inc. v. City of Lewiston, No. 91-37, at 3

          Danny’s, Inc. v. Town of Old Orchard Beach, No. 91-38, at 3

          Town of Weston v. Bureau of Taxation, No. 95-121, at 2 (but this

does not permit setting aside statutory requirements)

 

 

The Board chairman’s review of cases, 36 M.R.S. § 271(5), and Board Rule 4(A)(1)

 

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 5-6 (function of section 271(5) is to give Board chairman opportunity for meaningful review of jurisdictional issues; comment on parties’ need to be accurate in their filings to allow Board to manage its cases economically)

          Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001, at 1-2

                   (lack of answer to petition for assessment review and response

to motion for enlargement requires action on motion for enlargement without town’s position being considered); at 4-5 (where it is unclear upon initial review of case by the chairman whether appeal is proper under 36 M.R.S. § 844(2) or whether a case must first have been appealed to the board of assessment review, 36 M.R.S. § 843 (1-A)), the chairman will not assume a lack of jurisdiction pending a hearing)

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006 (order on jurisdiction), at 2 n.3 (function of section 271(5) is to give Board chairman opportunity for meaningful review of jurisdictional issues), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          Peaker v. City of Biddeford, 2003-018, at 1-2 (order on jurisdiction)

(residential property, and worth less than $1,000,000), confirmed by Board, Mar. 31, 2005 (decision on jurisdiction)   

          Curtis v. Town of Sherman, No. 2004-005 (order on jurisdiction),

at 6-7 (dismissal, for failure to file for abatement from                     imposition of tree growth penalty, where lack of jurisdiction              is clear)

Wescott & Payson II v. City of Saco, 2006-006, at 4 (order on

          jurisdiction; dismissal where property clearly worth less        than $1,000,000)

          Caleb Affordable Housing Associates, L.P. v. City of Saco, Nos. 2008-

                   021— -024 and Falls Development Associates, L.P. v. City of

                   Saco, No. 2008-026, at 2 (order on motion to deny pending

                   appeals; section 271(5) can be used to review only questions of

                   jurisdiction)

Harold MacQuinn, Inc. v. Town of Hancock, No. 2011-017, at 2 (order

          on Town’s motion to dismiss; if a motion to dismiss does not

          implicate the Board’s jurisdiction, the chairman must defer it to

          an assigned panel; and if a party has a legitimate argument that

          the Board has jurisdiction, it should be given a chance to state

          its position to the Board)

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

at 3 (order on motion to dismiss; motion to dismiss on grounds of lack of jurisdiction can be considered only pursuant to section 271(5))

          RiverRidge Associates v. Town of Kennebunk, No.2011-033, at 5 n.8

                    (dismissal order; only the jurisdiction of the Board is susceptible

                   to consideration under section 271(5))

          Gerrity Family Ltd. Partnership v. Town of East Machias, No. 2011-036,

at 3 (order on motion to dismiss; where only some grounds for dismissal appear to raise jurisdictional issues, motion is deferred to a hearing before the Board)

 

 

The Board can consider the rationale of an order of the chairman, pursuant to 36 M.R.S. § 271(5), that is on appeal

 

GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 8 n.5

 

         

Jurisdictional hearings are advisable in all but the clearest of cases

 

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 7 n.4

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 14 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          Curtis v. Town of Sherman, No. 2004-005, at 6-7 (order on

                   jurisdiction)

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 5 (order on jurisdiction)

          RiverRidge Associates v. Town of Kennebunk, No.2011-033, at 5

                   (dismissal order)

          Gerrity Family Ltd. Partnership v. Town of East Machias, No. 2011-036,

at 2 (order on motion to dismiss)

         

 

Summary of the Board’s pretrial procedures

 

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 2 n.1

          UAH-Hydro v. Town of Winslow, 2001-009, at 3 n.4

 

 

Purposes served by parties’ prehearing exchange of information

 

          G S Building Systems Corp. v. Town of Pittsfield, No. 98-003, at 3

 

 

Use of prehearing conference, 5 M.R.S. § 9053(4) and Board Rule 4(D)(2)

 

          Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

at 2-3

          Maine Public Service Co. v. City of Caribou, Nos. 93-137 & 95-152

                   at 1

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025,

at 7-11

 

 

Role of panel chair to limit admissibility of evidence, 5 M.R.S. § 9053(4)

 

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025,

at 7, 11

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2011-017, at 3

                   (order on Town’s motion to dismiss)

 

 

The chair of the panel hearing an appeal acts as the presiding officer during the hearing, with authority to regulate the course of the hearing and take action authorized by statute or agency rule

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 2

n.2 (chair of panel thus has authority to determine whether, during hearing, appellant can withdraw its appeal in part)

 

 

The Board hears cases de novo, 36 M.R.S. §§ 273, 843(1-A), 844(2)

 

          Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 92-97,

at 2 (without regard to any decision of board of assessment review)

Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 2 (same)

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 4

                   (same)

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 3

          Page v. Town of Damariscotta, No. 99-014, at 8 n.8 (this means

party can present new evidence, not that party can raise issues not raised before the assessors or that Board has the authority to make a determination of value without regard to taxpayer’s burden to prove case)

Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 2 (hearing is without regard to the decision of the town assessors)   

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 3 (same)  

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 2

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at

                   2 n.1, 5 (hearing is without regard to any decision of board

of assessment review; municipality continues to enjoy the presumption that the assessor was correct)

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 2-3 (same)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 2

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 6

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 8

 

 

In its discretion, the Board has not entertained a legal position being argued when the relief now being sought was not asked of the assessor

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 79-80

 

 

Written argument of counsel that is not supported by testimonial or documentary evidence will be given no weight

 

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 9 n.4

 

 

In absence of controlling Law Court decisions, the Board will look to decisions of the Superior Court

 

Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49, at 2-3 (order on motion for stay)

          Cf. Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

                   at 3-4 n.1 (rejecting a Superior Court decision)

 

 

An attorney cannot both litigate a case and be a witness, Code of Professional Responsibility, Rule 3.7

 

          Brown v. Town of Bucksport, No. 2009-031, at 6 n.3

 

 

The Board, as an adjudicatory board, gives deference to agency interpretation of rule that agency has responsibility to enforce

 

          Town of Dexter v. Maine Revenue Services, No. 2001-014, at 9

          Town of Dexter v. Maine Revenue Services, No. 2002-018, at 5 n.4

 

 

Courts are to defer to adjudicatory board’s construction of a statute, especially when that construction is long-standing and of an ambiguous statute; and administrative construction should be upheld unless plainly contrary to statute

 

          Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 4 n.1

 

 

The Board should disregard the fiction of a corporation’s separate identity whenever the concept is asserted in an endeavor to circumvent a statute and defeat legislative policy; but there may be countervailing considerations that dictate honoring separate corporate structure

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 68

 

 

The Board does not have authority to direct municipality or agency engaged in valuation to adopt a given procedure or methodology

 

          Town of Dexter v. Maine Revenue Services, No. 2001-014, at 8

 

 

Request for hearing in location of taxpayer’s residence

 

          Seaborne v. Inhabitants of Town of Jonesport, No. 88-09, at 1

 

 

Hearing held in location of property at issue

 

          Gleason v. Town of Southport, No. 91-43, at 2

          Marine Atlantic, Inc. v. Town of Bar Harbor, Nos. 91-03 & 91-52,

                   at 1

          Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14

                   at 4

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 2

 

 

View by the Board of the property at issue

 

          Gleason v. Town of Southport, No. 91-43, at 2

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 3

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 3

          UAH-Hydro v. Town of Winslow, 2001-009, at 4

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 2, 5

                   (a view is not evidence but a tool to aid Board in understand-

ing the evidence)

 

 

The Board’s proceeding with hearing in absence of party (not including equalized municipal valuation cases unless also cited for other issues)

 

          Hope v. Town of Bristol, No. 87-16, at 1 (town notified Board it

agreed with taxpayer’s request for abatement)

Hudson Pulp & Paper Corp. v. Town of Centerville, No. 88-02, at 1-2

(Board was satisfied town had notice)

Sirois v. Town of Lebanon, No. 89-08, at 1 (same)

          Filaroska v. Town of Vienna, No. 90-44, at 2

          Everett v. Town of Anson, No. 91-99, at 1 (Board waited for half

hour for petitioner to appear)

          Gray v. Town of Blue Hill, No. 91-92, at 1 (town telephoned Board

that it would rely on its written response)

          Town of Littleton v. Bureau of Taxation, No. 92-86, at 1-2 (town

telephoned that it would not appear)

          Pine Brook Associates v. Town of Old Orchard Beach, No. 92-98,

                   at 1-2 (Board called taxpayer and was told general counsel

          did not intend to attend)

          Wesson v. Town of Bremen, No. 93-88, at 1 (town chose to rely on

documents submitted)

          Federal Insurance Deposit Corp. v. Town of Sanford, No. 93-114,

at 1-2 (petitioner’s representative declined to appear for personal reasons, was reminded of burden of proof, and stated he would accept dismissal)

Carroll Plantation v. Bureau of Taxation, No. 93-126, at 1 (although

aware of time and place of hearing, plantation did not appear and had not advised Board of an inability to attend)

          Town of Monroe v. Bureau of Taxation, No. 93-131, at 1 (town

selectmen advised it would not be fruitful to attend hearing where the outcome was already decided)

          Hackel v. Town of Sabbatus, No. 96-015, at 1 (with consent of

Board, neither party appeared)

          Carroll v. Town of Cornish, No. 2001-02, at 1 (Decision I), at 2 & n.3

(Decision II)(on hearing date, Board secretary called town and offered to postpone hearing; town declined to attend; no question about town’s not having received notice of hearing)

 

 

The Board must decide case on evidence developed at the hearing, but is not bound by methodologies used by witnesses

 

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 5

U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 27

 

 

A judicial admission is binding on the one making it

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 28

                   (citing tax cases applying this rule, at 28 n.12)

Brown v. Town of Bucksport, No. 2009-03, at 2-3 (order on motion

to dismiss)

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 3

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 14, 21

         

 

A judicial admission by pleading cannot bind the Board or invest the Board with jurisdiction

 

          Caleb Affordable Housing Associates L.P. v. City of Saco, No. 2006-001,

                   at 5

          RiverRidge Associates v. Town of Kennebunk, No. 2011-033, at 3-4, 4

 

 

The Board cannot consider, in making its decision, what the municipality’s assessing authority would prefer, as more politically palatable

 

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 16 n.7

 

 

The Board need not accept the entire testimony of a witness, whether an expert or nonexpert

 

          IBM Credit Corp. v. City of Bath, Nos. 92-42 & 93-32, at 2-3

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 14

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 4-5

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 18

          Harold MacQuinn, Inc. v. Town of Hancock, 2009-014, at 24-25 (Board

                   finds taxpayer presented credible evidence of value as to certain

                   of its lands, but not others)

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 17

 

 

An assessor need not be licensed in Maine to testify

 

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

                   at 4 n.4 (witness had testified in courts in Maine previously)

 

 

Expert is in no position to criticize another witness who does not rely on given transactions when the expert himself excludes those transactions in arriving at his own appraisal result

 

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

          at 20

 

 

The Board cannot credit expert appraiser’s credentials or the substance of the appraisal report where appraiser does not testify

 

          Zorn v. Town of Lubec, No. 2004-007, at 4-5

 

 

Taxpayer is not required to submit an appraisal to the Board in support of its claim of valuation, but when it does, it can expect assessor to have reviewed the appraisal

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 26

 

 

Official notice, 36 M.R.S. 9058(1)

 

          Town of Waldo v. Maine Revenue Services, No. 2007-001, at 3-4

                   (federal government did not deliver mail due to observance of                   death of former president)

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

at 5 n.5

 

 

Maine has undertaken to train assessors, 36 M.R.S. § 301 et seq.

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 32 n.25

 

 

Maine Rules of Civil Procedure do not govern the Board but may be looked to for guidance

 

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 11 n.8 (but Board follows Rule 6(a))

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 4 n.4 (order on jurisdiction; same), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 8

          Caleb Affordable Housing Associates, L.P. v. City of Saco, No. 2006-001,

at 2 n.2 (order on jurisdiction; Board follows Rule 6(a))

          Town of Waldo v. Maine Revenue Services, No. 2007-001, at 2 (same)

          Brown v. Town of Bucksport, No. 2009-031, at 2 n.3 (order on

                   motion to dismiss; same)

GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 9

 

 

Maine Rules of Evidence do not apply in the administrative process

 

          Edward C. and Cynthia M. Hunt v. Town of Phippsburg, No. 91-41,

at 3 (but witness limited to personal knowledge outside of

hearsay report)

          Kenneth and Julie Hunt v. Town of Phippsburg, No. 91-42, at 3

(same)

          Alpine Realty Trust v. City of Biddeford, No. 93-72, at 1-2 (where

appraisal report was admitted in absence of report writer, witness could not testify to writer’s methodology)

          AWD Management (Chiricahua, Inc.) v. City of Westbrook, No. 95-163,

                   at 2 (Board cannot credit appraisals where no witnesses

                   testified)

          Harold MacQuinn, Inc. v. Town of Hancock, 2009-014 at 19-20 n.8

                   (M.R. Evid. 701 governs admissibility of lay opinions in court

                   litigation, but 5 M.R.S. § 9057(2) governs the Board)

 

 

Unobjected-to leading questions affect the weight, not the admissibility, of the evidence

 

          Harold MacQuinn, Inc. v. Town of Hancock, 2009-014 at 23

 

 

Admission of legal memorandum prepared by taxpayer and not presented to town before hearing, so that town had no opportunity to respond

 

Lincoln Realty Associates v. Town of Lincoln, No. 91-103, at 2

           

 

Objection to Bureau’s testifying because its file was not timely made available to municipality

 

Town of Glenburn v. Bureau of Taxation, No. 87-13, at 2

                   (substantial compliance by Bureau with Rule 4(D)(3)

sufficient, but failure of town to supply its exhibits to

Bureau results in their exclusion)

 

 

Admissibility of late-filed exhibit

 

          MCI International, Inc. v. Town of Andover, No. 88-20, at 2

                   (right of taxpayer to file exhibit late when town response to

petition, not served on taxpayer, raised affirmative defense)

          Town of Mechanic Falls v. Bureau of Taxation, No. 92-26, at 1

                   (including “post-period” information)

 

 

The Board will not consider a document not in evidence

 

          Maine Orion Properties v. Town of Falmouth, No. 93-107, at 2

                   (appraisal report)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 8 n.4

(appraisal reports)

 

 

The Board will disregard estimates of value contained in excluded appraisal reports

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 8-9 n.4

(even though parties have cited such estimates in post-hearing memoranda)

 

 

Objection to exhibit on grounds of relevance

 

          Town of Mechanic Falls v. Bureau of Taxation, No. 92-26, at 1

          Town of Washington v. Bureau of Taxation, No. 92-37, at 2

 

 

Technical defenses are not favored in administrative proceedings

 

          Eliot Commons Associates v. Town of Eliot, Nos. 93-73, 93-74

& 95-011, at 2-3 (deed held in name of Eliot Associates is a nonsubstantive discrepancy)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 56

          UAH-Hydro v. Town of Winslow, 2001-009, at 3 (claims of failure to

state a claim and to include essential allegations in petition for assessment review may be corrected by amendment of petition)

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 12 (order on motion to dismiss)

 

 

Possible recusal of a member of the Board

 

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 2, 3 (adjudicators are assumed to be qualified and to be

capable of deciding cases on the evidence)

          Moore v. Bureau of Taxation, No. 93-110, at 1-2 (Board member

knew petitioner; neither side objected to Board member’s participating)

 

 

Whether a Board member can participate in decision when he did not attend all the hearing

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 2-3 (transcript

of missed testimony provided to Board member)

          A-R Cable Services – Me., Inc. v. City of Lewiston, No. 91-37, at 1-2

(Board member who left hearing did not participate further)

          Mobile Imaging Consortium v. City of Portland, Nos. 94-44 & 96-32,

at 2 n.1 (Board member attended only first day of hearing; parties agreed deliberations should proceed without him)

         

 

Board entered deliberations without Board member who had attended evidentiary hearing

 

Brower, Denis & Powers v. Town of Starks, No. 95-007, at 2

          Sayer v. Town of Canton, No. 99-022, at 4 n.4

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 2

 

 

Requirements of due process in administrative proceedings are flexible

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 56

 

 

Comments made by members of the Board during deliberations are not binding

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 4 n.2

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

                   No. 2003-019, at 7 n.5

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

at 15 n.12

 

 

Need for decision that can be reviewed for support in the record

 

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

                   2003-019, at 7 n.5        

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 4        

 

 

Motion to withdraw appeal

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx.

(party to an appeal before Board may withdraw its appeal in part only with consent of the other party)

 

 

Withdrawal of appeal in part can have no effect on tax years not appealed

 

          U. S. Optical Disc, Inc.  v. Town of Sanford, No. 2003-004, Appx. at 3-5

 

 

Statutes of limitations

 

KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002,

at 11-12

 

 

Standing

 

          McDonald’s Corp. v. Town of Freeport, No. 89-17, at 2-3 (right of

franchise owner to contest abatement)

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 1-2 (Board

denies motion to dismiss for lack of standing where petitioner acquired ownership after April 1st and paid tax bill for second half of tax year)

          Winslow v. Town of Falmouth, No. 93-36, at 2 n.1 (issue not addressed

                   because Board dismissed case for lack of jurisdiction)

          Eliot Commons Associates v. Town of Eliot, Nos. 93-73, 93-74

& 95-011, at 2-3 (deed held in name of Eliot Associates is a nonsubstantive discrepancy)

Sayer v. Town of Canton, No. 99-022, at 4 (those in possession of

land may prosecute appeal with assent of owner, which was shown here)

KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at

1 n.1 (only trust against which tree growth withdrawal penalty was assessed has standing)

 

 

Subpoenas, 36 M.R.S. § 271(2)(D), are discretionary with the Board

 

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 2

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 2 & n.2

          McLaughlin v. Town of Dexter, No. 2010-001, at 3 n.3 (subpoenas will

                   issue upon showing of necessity)

 

 

Protective orders

 

          Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14

at 3-4

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 2-3 n.1

          UAH-Hydro v. Town of Winslow, 2001-009, at 3-4

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 1

          Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 3, 9

(taxpayer had obtained protective order from Superior Court, and highlighted such material at noted pages of decision)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 8 (order provides adequate protection against release

                   of information claimed to be privileged)

 

 

Confidentiality agreements

 

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 2

                   (and Freedom of Access Act)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 3

         

 

The Board is without authority to bar the public from a hearing at which testimony relating to confidential agreements is elicited

 

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 2

 

 

Continuances

 

          Town of Sherman v. Bureau of Taxation, No. 90-21, at 1-2 (denied

due to lateness and inability to meet January 15th deadline

in state equalization case)

          Nargesian v. Town of Northport, No. 91-97, at 2 (second request

from petitioner denied)

          Alpine Realty Trust v. City of Biddeford, No. 93-72, at 2 (request for

continuance to obtain live witness denied where there had been three previous continuances)

          G S Building Systems Corp. v. Town of Pittsfield, No. 98-003, at 2

                   (dismissal for want of prosecution proper after continuances

had been granted to both parties)

          Donhauser Enterprises, LLC v. Town of Eliot, No. 2002-001, at 3, 5

(motions for continuance filed within time period at issue are considered timely, and no opposition should be assumed in absence of response to motion)

 

 

Waiver of issues

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 2 (section 706)

Dirigo Dowels & Pins, Inc. v. Town of New Portland, No. 2000-007,

at 11 (lack of jurisdiction cannot be waived)

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 6

                   (tree growth issues: that application did not contain the names

                   of the owners; that taxpayer did not comply with section 706;

                   that application was not timely because amended after April 1st

                   filing date; that application was not filed in duplicate; and that

                   the town did not respond timely to petition for assessment

review)

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 1 n.2 (taxpayer withdrew argument that assessment was illegal because of alleged failure to conduct decennial revaluation)

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 2 n.1

                   (abandonment of claim of eligibility of parcel for tree growth

                   classification on appeal is a waiver)

 

 

Equitable estoppel

 

Spencer Press of Maine, Inc. v. Town of Wells, No. 86-10, consoli-

dated with Shaw’s Realty, Inc. v. Town of Wells, No. 86-11,

at 3-5

          Babcock-Ultrapower West Enfield v. Town of Enfield, No. 96-049, at 3

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 10 n.7

(Board did not reach town’s claim that taxpayer was estopped from disputing the value set forth in its schedule because taxpayer failed to produce credible evidence of value)

 

 

Res judicata and collateral estoppel

 

          Perkins v. Town of Kittery, No. 97-002, at 2 (decision of board of

assessment review is final; taxpayer cannot file a second application for abatement in same tax year)

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2011-017 (order on

                   Town’s motion to dismiss)   

 

 

Motions to stay

 

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49, passim

          Tidebrook Conservation Trust v. Town of Freeport, No. 93-52, at 1-2

                   (Decision II)

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 94-16,

94-17, 95-147, 95-148, 96-33–96-35, at 1 (pending judicial

review)

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 95-147

                   & 95-148, at 2 (appropriate where pending Law Court

decision will likely control)

          International Woolen Co., Inc. v. Town of Sanford, No. 2002-012,

at 1-2 (appropriate where pending Law Court decision in related case will likely control)

          Fowler v. Town of Lubec, 2004-002 (passim)(addressing require-

ments, in order of chair of panel, for post-hearing stay under 5 M.R.S. § 11004)

 

 

Motions for directed verdict

 

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 4

                   (moot where all the evidence was already before Board)

 

 

Newly discovered evidence

 

          Tidebrook Conservation Trust v. Town of Freeport, No. 93-52, at 1-2

                   (Decision II)(newly discovered application for classification as

tree growth is not relevant to Board’s previous denial of

jurisdiction on open space classification claim)

 

 

Motions to reopen evidence

 

          Brower, Denis & Powers v. Town of Starks, No. 95-007, at 1-2

(denied where evidence was previously available to party)

 

 

Reopening of evidence on Board’s order

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 2

 

 

Motions to reconsider are within discretion of the Board

 

          Tidebrook Conservation Trust v. Town of Freeport, No. 93-52, at 1

                   (Decision II)

          Adams v. City of Biddeford, Nos. 95-029–95-104, at 1 (Decision II)

          Madison and Anson Water District v. Town of Embden, No. 96-036,

on motion to reconsider, at 1

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 3

 

 

Mootness

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 10 n.4

 

 

Assessment of costs, 36 M.R.S. § 850 (now repealed)

 

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66 (Decision I), at 8-9

          Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

at 13; at 1-2, on reconsideration of assessment of costs (expenses of Board members to attend hearing, charges

of reporter service, rent of meeting room)

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 5 (Decision I)

                   (same)        

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 6                  n.3 (Board no longer has authority to impose costs)

 

 

Dismissal for want of prosecution in absence of petitioner

 

Nargesian v. Town of Northport, No. 91-97, at 2

Everett v. Town of Anson, No. 91-99, at 1

Dupuy v. Bureau of Taxation, No. 92-07, at 2 (neither party

appeared for rescheduled hearing)

Anzivino v. Town of Beddington, No. 92-33, at 1

Pine Brook Associates v. Town of Old Orchard Beach, No. 92-98,

          at 2

Federal Insurance Deposit Corp. v. Town of Sanford, No. 93-114,

at 1-2

          Carroll Plantation v. Bureau of Taxation, No. 93-126, at 1

          Town of Monroe v. Bureau of Taxation, No. 93-131, at 2

          G S Building Systems Corp. v. Town of Pittsfield, No. 98-003,

passim (after continuances granted to both sides, including  a request from town for taxpayer to have more time, and failure of taxpayer to follow Board orders to provide information before hearing)

          BOC Group, Inc. v. Town of Kittery, No. 99-029, at 1 (failure of

petitioner to file response within 30 days as directed)

          Demaris v. Town of Bradford, No. 2002-008, at 1

          Hinkley v. Town of Waldoboro, No. 2003-009, at 2

          Satterfield v. Town of Cushing, No. 2009-022, at 2-4 (dismissal order)

                   (discussion of adequacy of notice of hearing to petitioner

                   pursuant to 5 M.R.S. § 9052(1)(A), (B) and 36 M.R.S. § 111(2))

 

 

Default may be set aside for good cause, 5 M.R.S. § 9053(3)

 

          Developers Diversified Cooks Corner, L.P. v. Town of Brunswick, Nos.

                   2009-022 and -025, at 3 (prehearing order)

 

 

Appeals to Superior Court after appeal to board of assessment review, 36 M.R.S. § 843(1), or county commissioners, 36 M.R.S. § 844(1), in residential cases or cases below jurisdictional limit of the Board

 

          Ames Dept. Store, Inc. #347 v. Town of Skowhegan, No. 88-19, at 1

                   (section 843(1))

          Seaside Hotel Assocites v. Town of Kennebunkport, No. 96-019, at 1-2

                   (section 844(1))

          Wesson v. Town of Bremen, No. 97-005, at 2 (section 843(1))

          Page v. Town of Damariscotta, No. 99-014, at 5 & n.4, 6 (section

844(1))

          International Woolen Co., Inc. v. Town of Sanford, No. 2000-009,

at 3 n.2

          Riverview Timeshare Trust v. Town of Bethel, No. 2002-009, at 4

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 2 n.2, 5 n.6 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          Narrows Too #5038 v. Town of Trenton, No. 2012-013, at 3 n.1

 

 

Declaratory judgment action

 

          Mobile Imaging Consortium v. City of Portland, Nos. 94-44 & 96-32,

at 4 (declaratory judgment action may proceed in court at same time as abatement case before Board)

          Madison and Anson Water District v. Town of Embden, No. 96-036,

at 1 (does not require payment of taxes first)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 2-3 n.3 (interim procedural order of Board is not appealable and subject to declaratory judgment action)

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

at 11-12 (order on motion to dismiss; taxpayer cannot be consigned to declaratory judgment action to litigate section 706 issues)

 

 

1 M.R.S. § 71 states rules of construction to be followed unless such construction is inconsistent with plain meaning of statute

 

          Pachowsky v. Town of Clinton, No. 2001-005, at 6

 

 

Plain meaning of statutes controls, absent any of several exceptions

 

          Lauder v. Town of South Bristol, No. 91-07, at 2 (contrary intent)

Hood Trust v. Town of South Bristol, No. 91-08, at 2 (same)

          Welch v. Town of Wells, No. 97-001, at 2 (ambiguity; need to avoid 

results that are absurd, against public policy, or contrary

to constitution)

          Town of Standish v. State of Maine, Bureau of Revenue Services,

No. 99-031, at 4 (need to avoid conflict with other statutes, to effectuate legislative scheme as a whole, and to avoid giving statutes an unreasonable meaning)

          Pachowsky v. Town of Clinton, No. 2001-005, at 6 (if statute is

clear, there is no need to go beyond the words)

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 10 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

2003-001 & 2003-002, at 5-6

 

 

Statutes are to be read to effectuate legislative intent, considering the entire legislation of which a word or section at issue is a part

 

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 10, 11 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

 

 

No part of a statutory scheme is to be rendered superfluous if statutes can reasonably be construed to avoid that result; statutes are to be interpreted so as to preserve the meaning of their constituent parts

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 60

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

& 2003-006, at 11 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

 

 

A statutory tax scheme is to be considered as a whole in order to reach a harmonious result between sections of law

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 5 n.5

 

 

Statutes are to be read with reasoning and judgment

 

          Pachowsky v. Town of Clinton, No. 2001-005, at 7

 

 

Specific provisions of law prevail over general provisions

 

            Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 51

          Pachowsky v. Town of Clinton, No. 2001-005, at 8

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 17

 

 

Factors of statutory interpretation to use when statutes are ambiguous

 

          McClure v. Town of Lubec, No. 2010-013,, at 4 (consider overall

statutory context of provision in issue and legislative history)

 

 

Rule of the last antecedent

 

Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 13 n.6

 

 

Meaning of specific provision of tax law is to be considered in its statutory context

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002,

at 7, 18

McClure v. Town of Lubec, No. 2010-013, at 4 (one factor to rely on

          when statutes are ambiguous)

 

 

The Board will not read into tax statutes asserted requirements that are not there

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 16

          Pierce v. Maine Revenue Services, No. 2006-007, at 4-5

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

at 13-14

          McClure v. Town of Lubec, No. 2010-013, at 3

 

 

Tax statutes susceptible of more than one interpretation are to be construed in a light most favorable to the taxpayer

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 21

          See Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 29

 

 

Amendments to statutes generally do not have retroactive effect

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

at 13 n.10 (section 581(1); citing 1 M.R.S. § 302)

          McLaughlin v. Town of Dexter, 2010-001, at 10 (section 581(1))

 

 

An unallocated section of an enacted law means that the Revisor of Statutes did not assign it a title and section number in the Maine Revised Statutes

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016, at 13

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

Services, Nos. 2009-020 & -021, at 5 n.2

 

 

The Board’s reliance on legislative history

 

          Wingate, and Dale & Sea Meadow, LLC v. Town of York, Nos. 2003-

005 & 2003-006, at 8-9, 12-13 (order on jurisdiction), confirmed by Board, June 4, 2004 (decision on jurisdiction)

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

at 9-13 (tracing amendments to 36 M.R.S. § 581(1))

          McClure v. Town of Lubec, No. 2010-013, at 4 (one factor to rely on

                   when statutes are ambiguous)

 

 

“Shall” and “must” generally connote a mandatory requirement

 

          Town of Standish v. State of Maine, Bureau of Revenue Services,

No. 99-031, at 3 (terms are not always mandatory

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 63

          Town of Solon v. State of Maine, Bureau of Revenue Services,

No. 2000-012, at 2

          Pachowsky v. Town of Clinton, No. 2001-005, at 6 & n.3 (relying on

1 M.R.S. § 71(9-A) as well as case law to determine when

terms are mandatory and when they are not)

          Town of Dexter v. Maine Revenue Services, No. 2001-014, at 6 n.6

          Fowler v. Town of Lubec, 2004-002, at 5 (relying on 1 M.R.S. § 71(9-A))

          Zorn v. Town of Lubec, No. 2004-007, at 4 (same)

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

                   at 10 & n.8 (relying on 1 M.R.S. § 71(9-A) as well as case

                   law to determine when terms are mandatory and when they

                   are not)

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 3 n.3 (order on motion to dismiss)

          Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at 23-

24 & n.11 (1 M.R.S. § 71(9-A) “countenances no noncompliance,” but there are exceptions which make a deadline directory only)

 

 

Resort to dictionary definitions

 

          Blanch v. Town of Lubec, No. 96-048, at 2 (“forest”)

          Town of Danforth v. Maine Revenue Services, No. 2002-013, at 1-2 n.1

                   (what constitutes an affidavit)

          Town of Shirley v. Maine Revenue Services, No. 2002-016, at 2 n.1

                   (same)

          Town of Waldo v. Maine Revenue Services, No. 2007-001, at 5 & n.2

                   (“signing” and “subscribing” mean the same thing)

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 20-21

                   (“incidental”; “inconsistent”; “interfere”)    

 

 

A trust document is to be read to effectuate the intent of the creators of the trust

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 21

 

 

Mortgages are subject to usual rules of construction

 

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 44

 

 

Mortgage documents are to be considered as a whole in light of the overall

transactions between the parties

 

Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 44

 

 

Maine’s beautiful coastline property

 

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 20

 

 

Reliance on Property Tax Bulletins

 

          Hardison v. Town of Waltham, No. 91-16, at 2 (#19: tree growth)

          Sawyer Environmental Recovery Facility v. Town of Hampden,

No. 93-34, at 4 (#10: abatement and appeal procedures)

          LeMaistre v. Town of Freeport, No. 93-56, at 1, 3 (#18: farmland and

open space; bulletin sets forth only recommended farmland values)

          Kendall v. Town of Perry, No. 93-60, at 2 (#18: farmland and open

space)

          Wells Industrial Development Corp. v. Town of Wells, No. 93-67,

at 2, 3-4 (#10: abatement and appeal procedures: broad discussion of appeal procedures does not meet statutory requirement that a taxpayer be notified of his appeal rights,

36 M.R.S. § 842)

          Everett v. Town of Waterford, No. 93-136, at 1 (#19: tree growth;

question left open whether by dispensing bulletin to

taxpayers it had given notice of appeal rights)

          Keene v. City of Auburn, No. 98-023, at 3 (#18: farm and open

space law; bulletin suggests valuation ranges according to soils, topography, and use options)

          Sayer v. Town of Canton, No. 99-022, at 5 (#18: farm and open

space law; bulletin suggests valuation ranges according to use, sales, yield, classification of land, soils, topography, drainage, and rocks)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 6 (#5: exemptions for charitable and benevolent corporations: discussing the breadth and undefined scope of 36 M.R.S. § 652)

          Carroll v. Town of Cornish, No. 2001-02, at 2 n.4 (Decision II)

(#18: farmland and open space; soil types are relevant to productivity and hence to per acre valuation as suggested

by bulletin); at 3-4 (assessors’ use of bulletin to understand what products qualify land as farmland); at 6 (valuation according to current use, not fair market value); at 7 (three kinds of farmland)

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 11 n.9 (#24:

                   easements)

          Brown v. Town of Bucksport, No. 2009-031, at 13 n.17 (#19: tree

                   growth)

 

 

Better Equipment Tax Reimbursement (BETR), 36 M.R.S. §§ 6651-6663

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 10 &

                   n.8   

 


III.  Appeals From Municipal Assessments

 

The assessment and collection of taxes is a unitary process, of which the Board is a part

 

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

at 14 (order on motion to dismiss)

 

 

Assessors, although employed by municipalities, are public officers and agents of the sovereign and are not agents of municipalities

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, Appx. at 9

n.5

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 15 (order on motion to dismiss)

 

 

They are accountable to no one so long as they act in accord with their constitutional mandate and statutory direction

 

Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 15 (order on motion to dismiss)

 

 

When selectmen and assessors are the same individuals, selectmen assume all responsibilities of assessors and may be called such by the Board, 36 M.R.S. § 703

 

          Sayer v. Town of Canton, No. 99-022, at 3 n.2

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

at 4 n.6

 

 

Selectmen as such have no assessing authority

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

                   at 8 n.6

 

 

Who qualifies as municipal officers, 1 M.R.S. § 72(12), 30-A M.R.S. § 2001(10)(A), (B), and 36 M.R.S. § 501(4)

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

at 4 n.2

 

 

Municipal officers are not the assessors; if the same individuals serve in both capacities, they must be sworn in both

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

at 4 & n.2

 

 

36 M.R.S. § 706 has long been a part of Maine law

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 22 n.17

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 5 (order on motion to dismiss)

 

 

Purposes of 36 M.R.S. § 706 are to allow taxpayer, who is in the best position to know, to furnish correct information to assessor, and to prevent property liable to be taxed from escaping taxation

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003 at 33 & n.17

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 5 (order on motion to dismiss)

          GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 2

 

 

The Board has assumed over the years that it has the authority to decide questions concerning the propriety and timeliness of assessors’ demands for information as well as the adequacy of taxpayers’ responses, thus potentially barring their right to file a request for abatement or appealing a denial

 

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 3-4 (order on motion to dismiss)(section 706 does not give

                   jurisdiction to a court but deny it to the Board)

          GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 8 (the Board is not precluded from enforcing

                   section 706; court does not have sole authority to do so)

 

Whether the Board has or does not have jurisdiction to hear an appeal by a taxpayer from assessor’s determination it did not comply with assessor’s demands for information pursuant to 36 M.R.S. § 706 is a jurisdictional question that can be decided by the Board chairman pursuant to 36 M.R.S. § 271(5)

 

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

at 9-15 (order on motion to dismiss)

 

The propriety of an assessor’s 36 M.R.S. § 706 demands and the adequacy of taxpayer’s responses is not a jurisdictional question and cannot be decided by the Board chairman pursuant to 36 M.R.S. § 271(5)

 

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

at 3-9 (order on motion to dismiss; these are defenses that a municipality can waive)

          Cobalt Properties, Ltd. v. Town of West Gardiner, Nos. 2012-006

& -016, at 3 (prehearing order)

 

 

If municipality invokes 36 M.R.S. § 706 it must prove that it timely mailed request for information

 

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 94-16,

94-17, 95-147, 95-148, 96-33–96-35, at 2 (exemption case)

UAH Hydro Kennebec v. Town of Winslow, Nos. 95-120 & 95-150,

at 1-2 (without a timely request for information town is barred from asserting that unanswered follow-up inquiries preclude taxpayer from appealing)

          Friendly Ice Cream Corp. v. City of Lewiston, No. 96-042, at 2

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 1-2

          Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

2003-001 & 2003-002, at 3

          GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 5

 

 

Mailings to give notice pursuant to 36 M.R.S. § 706 can be made by regular, first-class mail, and need not be have done by certified mail

 

          McLaughlin v. Town of Dexter, No. 2010-001, at 10 (tree growth case)

 

 

Burden then shifts to the taxpayer to show that it answered the assessor’s proper inquiries, that the inquiries were not proper, or that it was unable to answer them

 

          GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 5

 

Municipality’s burden to show it need not comply with 36 M.R.S. § 706 requests is onerous

 

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 11

 

 

Alternatively, if the assessor did not mail notice, the assessor may still require the taxpayer to answer inquiries as to the nature, situation, and value of its properties

 

          GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 5

 

 

Although assessment suffered from lack of income data, assessor never demanded it under 36 M.R.S. § 706

 

          Falls Development Associates L.P. v. City of Saco, No. 2008-025, at 61

 

 

Timing of municipality’s request for information under 36 M.R.S. § 706

 

          Alpine Realty Trust v. City of Biddeford, No. 93-72, at 1 (request for

information after assessment date is untimely)

          Northeast Empire Ltd. Partnership v. Town of Livermore Falls, Nos.

97-101 & 98-005, at 4-5 (where town waited two months to

file follow-up questions and then demanded they be answered within 30 days, its request was unreasonable and thus improper under section 706)

 

 

Adequacy of municipality’s notice of requirements of 36 M.R.S. § 706

 

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-01 & 91-21,

                   at 4-5  (notice published in annual town report and delivered

to every address is inadequate, and so taxpayer not barred

from contesting assessment)

          C.S.R. Associates v. City of Portland, Nos. 92-03 & 92-20, at 3

                   (where taxpayer asserted it had never received section 706

request, mailing section 706 request to taxpayer’s last

known address, not contested as incorrect, is sufficient)

          UAH Hydro Kennebec v. Town of Winslow, Nos. 95-120 & 95-150,

at 2 (correspondence from town was not a proper section 706 request for information)

          Friendly Ice Cream Corp. v. City of Lewiston, No. 96-042, at 2

(city’s routine mailing of request and records of non-returns conformed with section 706)

          Northeast Empire Ltd. Partnership v. Town of Livermore Falls, Nos.

97-101 & 98-005, at 3 (demand to answer complicated follow-up questions was unreasonable and improper)

          Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

2003-001 & 2003-002, at 4-6 (notice confusing when it told taxpayers both that a list of property must be provided and that no list need be provided if there are no changes to report)

 

 

Whether requests for information constituted proper inquiries by town under 36 M.R.S. § 706

 

          MCI International, Inc. v. Town of Andover, No. 88-20, at 5-6

          MCI International, Inc. v. Town of Andover, No. 89-16, at 6-7

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

                   2010-002-A, at 7 (town was unable to produce requests for tax

                   year in question)

          GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 6-10 (Board has no authority to enforce

section 706; appraisal sought by assessor was trade secret; attorney-client work product; inquiries were overbroad; assessor did not show appraisal was made available to taxpayer; assessor did not make further inquiry about the nature, situation, and value of properties)

 

 

Whether schedule of 36 M.R.S. § 706 was substantively satisfied

 

          MCI International, Inc. v. Town of Andover, No. 88-20, at 3-7

          MCI International, Inc. v. Town of Andover, No. 89-16, at 4-6, 7-9

          McDonald’s Corp. v. Town of Freeport, No. 89-17, at 2

          Mystic Motor Inn v. Town of Freeport, No. 91-19, at 3 (failure to

supply income data not a violation)

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-01 & 91-21,

at 5-6 (taxpayer’s answers to specific inquiries)

          Eliot Commons Associates v. Town of Eliot, Nos. 93-73, 93-74 &

95-011, at 3-4 (taxpayer complied with town’s request for income and expense information)

          Babcock-Ultrapower West Enfield v. Town of Enfield, No. 96-049,

passim (taxpayer could state information in terms of cost, not fair market value)

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 6

(issue waived)

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

                   2010-002-A, at 7-8 (town’s simple disagreement that taxpayer

                   had not provided the correct information requested by the town

                   is not a basis on which to conclude taxpayer had failed to

                   comply with section 706, particularly when town could not

                   articulate, before the Board, the reasons for its disagreement)

 

 

Taxpayer must respond to town’s proper inquiries pursuant to 36 M.R.S.

§ 706 and can defend not answering only on grounds of inability, not good cause or reasonable excuse

 

          MCI International, Inc. v. Town of Andover, No. 88-20, at 6

          MCI International, Inc. v. Town of Andover, No. 89-16, at 7

          UAH-Hydro v. Town of Winslow, No. 2001-009, at 3 (where taxpayer

had no appraisal, it was unable to respond to section 706 request from town)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 33 n.18

          GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 11

 

 

Taxpayer’s failure to respond to a proper 36 M.R.S. § 706 request by municipality bars it from pursuing an appeal of an assessment

 

          MCI International, Inc. v. Town of Andover, No. 88-20, at 7

          MCI International, Inc. v. Town of Andover, No. 89-16, at 4

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-01 & 91-21,

                   at 3

          C.S.R. Associates v. City of Portland, Nos. 92-03 & 92-20, at 3

          UAH Hydro Kennebec v. Town of Winslow, Nos. 95-120 & 95-150,

at 1

          Friendly Ice Cream Corp. v. City of Lewiston, No. 96-042, at 2

          Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

2003-001 & 2003-002, at 3

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

                   2010-002-A, at 6

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 4 n.4

          (although assessor maintained taxpayer did not provide her

          with financial information, she did not assert it had lost its right

to appeal)

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 6-7 (order on motion to dismiss)

          GGP-Maine Mall, LLC v. City of South Portland, Nos. 2011-022 – -030

                   (Maine Mall II), at 5, 11

 

 

Taxpayer need not list exempt properties in responding to assessor’s demand for information pursuant to 36 M.R.S. § 706

 

Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 6 n.8 (order on motion to dismiss)

 

 

Taxpayer may be bound by its initial 36 M.R.S. § 706 statement, but it can later argue that property it claimed as its own should be excluded from

an assessment

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 33-34

 

 

Assessors are not bound by taxpayer’s 36 M.R.S. § 706 declarations

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 23

n.17, 32 (inconsistent for assessor to have relied on personal          property declarations and to have rejected real property             declarations)

 

 

Proper party to whom municipality’s 36 M.R.S. § 706 inquiries are to be addressed

 

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-01 & 91-21,

                   at 6 (taxpayer who responded in one tax year cannot assert

this defense for another year without notifying town it was not proper party)

 

 

Taxpayer need not personally deliver its 36 M.R.S. § 706 statement to the assessor

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 34

 

 

Taxpayer’s unwillingness to allow the assessor to inspect property may make its claims of valuation less credible

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 31 n.24

 

 

The Board has jurisdiction to determine if a taxing authority must repay a taxpayer with interest when a tax paid as a penalty is to be refunded

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 13-14

 

 

Whether the overpayment of tax is to be refunded to taxpayer with interest, 36 M.R.S. § 506-A

 

          Gottschalk v. Town of Brooklin, No. 90-30, at 2 (yes)

          Chatfield v. Town of Rockport, No. 91-56, at 5 (yes)    

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 14-19 (no, under particular

                   legislation)

 

 

Assessment is presumed correct, and burden is on taxpayer to show that the assessor is manifestly wrong

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 4

          McDonald’s Corp. v. Town of Freeport, No. 89-17, at 5

          Kamp Kohut, Ltd. v. Town of Oxford, No. 90-18, at 2 (strong

                   presumption of validity)

          Oxford Homes, Inc. v. Town of Oxford, No. 90-31, at 5 (presumption

in favor of assessors’ determination of value)

          Central Maine Power Co. v. Town of Moscow, No. 90-43, at 5

          Mountain View Associates v. Town of Madison, No. 91-35, at 4

          Searsport Realty Associates v. Town of Searsport, No. 91-89, at 3

          Glenridge Development Co. v. City of Augusta, No. 91-90, at 3

          Oxford Paper Co. (Boise Cascade) v. Town of Mexico, No. 91-102,

at 3 (stated in terms of (1), below)

          Lincoln Realty Associates v. Town of Lincoln, No. 91-103, at 3

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 6 (Decision I)

          Applewood Housing Associates v. Town of Camden, No. 92-18, at 3

Weymouth (Townhouse Estates I) v. Town of Camden, No. 92-29,

at 3

Weymouth (Townhouse Estates II) v. Town of Camden, No. 92-30,

at 3

Camden Housing Associates v. Town of Camden, No. 92-32, at 3

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

at 5

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 1 (Decision II)

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

with Landco Realty Co. v. City of Biddeford, No. 93-70, at 5

(burden is not on assessors to show the accuracy of their valuation)

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 6

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

at 3 (city argued that merely presenting alternative values

did not prove assessment was manifestly wrong)

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49 & 92-55–92-64, at 3

          Alpine Realty Trust v. City of Biddeford, No. 93-72, at 2

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 4

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 5

          Cumberland Property Trust v. Town of Gorham, No. 93-111, at 2

          Unitrode Corp. v. City of Westbrook, No. 93-116, at 6

          Carle Street Associates v. City of Waterville, Nos. 94-23 & 95-162,

at 2

Capitol Shopping Center v. City of Augusta, Nos. 94-29 & 95-164,

at 3

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 4 (Decision I),

at 3 (Decision III)

          FLS Associates v. City of Augusta, No. 95-153, at 2

          Pope v. Town of Old Orchard Beach, Nos. 96-039–96-041, at 2

          McGhee v. Town of Maxfield, No.96-044, at 3

          Forbes v. Town of Southwest Harbor, No. 96-045, at 5 (farmland case)

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 3

          Roderick v. Town of Crystal, No. 97-103, at 3 (burden is showing

assessor was manifestly wrong in relation to just value)

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 3-4

          Port Resort Realty Corp. v. Town of Kennebunkport, No. 98-004,

at 1-2 (same)

          Keene v. City of Auburn, No. 98-023, at 4 (farmland case)

          B & B Properties v. City of Ellsworth, No. 98-026, at 2 (burden is to

show that assessment is unjust—that is, overrated or rated for more than just value)

          Provost, Inc. v. Town of Windham, No. 98-029, at 3

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 3

          Sayer v. Town of Canton, No. 99-022, at 7 (farmland case in

which taxpayers proffered credible evidence of value and demonstrated assessors were manifestly wrong)

          Carroll v. Town of Cornish, No. 2001-002, at 8 (same)

          UAH-Hydro v. Town of Winslow, 2001-009, at 7

          Davis v. Town of Lamoine, No. 2002-003, at 5 (tree growth case)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 4, 5

          Sprague Energy Corp, Inc. v. Town of Bucksport, No. 2003-003, at 3

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 12

                   (quoting Sprague Energy); at 14 (unless, or until, the assessor is

shown to be manifestly wrong, he is entitled to the presumption that his assessment is valid); Appx. at 10

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 2

Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 15

          Fowler v. Town of Lubec, 2004-002, at 2 (tree growth case)

          Richmond v. Town of Moscow, No. 2004-004, at 3 (same)

          Zorn v. Town of Lubec, No. 2004-007, at 3 (same)

          Gray v. Town of Sedgwick, No. 2005-005, at 2 (same)

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 17

          (same)

Pierce v. Maine Revenue Services, No. 2006-007, at 10 (same)

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

at 2, 3 (taxpayer carries its burden to prove subject property is substantially overvalued when it proves the assessed value

is relation to just value is manifestly wrong)       

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008, at 2

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 12 (working

                   waterfront case)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 3        

          Kendall v. Town of Perry, No. 2008-004, at 2 (tree growth case)

          PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old

                    Town, Nos. 2008-013 & -029, at 2

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 3 (burden is to show valuation is unjust)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 5

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 2

Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 16, 24

Brown v. Town of Bucksport, No. 2009-031, at 15 (tree growth case)

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 2

Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

                   of Smyrna, Nos. 2010-007 & 2010-006, at 2 (tree growth case)

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 13

 

 

To meet this burden, taxpayer must do more than impeach the assessor; taxpayer must affirmatively present credible evidence of value by which the Board can compare valuations, and so independently value the property based on the entire record

 

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 3 (Decision II)

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49 & 92-55–92-64, at 3-4

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 5

          Unitrode Corp. v. City of Westbrook, No. 93-116, at 6 (despite

evidence of contamination which had some effect on value, where petitioner presented no figures or methodology with which Board can determine value, it has not met its burden)

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 3 (Decision III)

Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 4

          AWD Management (Chiricahua, Inc.) v. City of Westbrook, No. 95-163,

                   at 2-3

          Spang Enterprises v. Town of Kennebunkport, No. 96-011, at 2, 3

(town’s witness’ testimony that many commercial properties in town are over-assessed and that it would be unfair to correct one without correcting all may be considered impeachment of value, but taxpayer presented no credible evidence of true value against which to compare assessor’s value)

          Pope v. Town of Old Orchard Beach, Nos. 96-039–96-041, at 2-3

(absence of historical and market evidence supporting a determination of stabilized estimate of net operating income from which to apply an appropriate capitalization rate itself demonstrates taxpayer did not present a credible value)

          McGhee v. Town of Maxfield, No.96-044, at 3

          Forbes v. Town of Southwest Harbor, No. 96-045, at 5

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 3

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 4

          Port Resort Realty Corp. v. Town of Kennebunkport, No 98-004, at 2

          B & B Properties v. City of Ellsworth, No. 98-026, at 2

          Provost, Inc. v. Town of Windham, No. 98-029, at 3

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 3, 6 n.3, 7 (despite impeaching assessment, taxpayer did not come forward with credible evidence of value)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 4

          UAH-Hydro v. Town of Winslow, 2001-009, at 7 (taxpayer failed to

impeach assessor)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 4, 30

(taxpayer failed to present any impeaching evidence as to value of personal property and one parcel of real property, and failed to show assessor was manifestly wrong as to another parcel of realty)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 11 n.6, 12

(quoting Sprague Energy; taxpayer must do more than show assessor did not apply all factors in 36 M.R.S. § 701-A, but must show how such failure resulted in assessor being manifestly wrong)

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 2

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

                   at 3

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

at 2, 6, 9 (despite impeaching assessor, taxpayer did not come forward with credible evidence of value)

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 12

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 3,

5, 19-25 (taxpayer impeached assessment and came forward with credible evidence of value)

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 3

GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

          Mall I), at 3

PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old

                    Town, Nos. 2008-013 & -029, at 2-3 (taxpayer presented

credible evidence of value); at 3-4 (one town’s assessor was

impeached when assessor’s agent could not find any records

to support assessment, so town could not establish what approaches to value were applied, and other town relied on

brief handwritten notes not related to income)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025,

at 5-6, 6-7 ( taxpayer impeached assessment but did not

present credible evidence of value, and so loses its appeal

even though assessment was too high); at 60-61, 63 (taxpayer’s failure to present credible evidence of value means assessor’s value prevails even though too high)

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 2-3

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 18

          Brown v. Town of Bucksport, No. 2009-031, at 15

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 2

Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

                   of Smyrna, Nos. 2010-007 & 2010-006, at 3

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 13

 

 

This is an application of a more general principle that when a party has the burden of proof, the absence of affirmative evidence itself supports denying relief to that party

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 18 n.7

 

 

In considering whether the taxpayer has met its burden to show the assessment is manifestly wrong, the Board considers whether the taxpayer has impeached the assessor

 

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 10

                  

 

Only if the proffered value in comparison with the assessment shows substantial overvaluation can the Board conclude the assessor is manifestly wrong

 

           U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 14

          Topsham Hydro Partners v. Town of Topsham, 2003-007, at 2

Falls Development Associates, L.P. v. City of Saco, No. 2008-025,  

at 6, 64

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 18

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 2

          Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

                   of Smyrna, Nos. 2010-007 & 2010-006, at 3

 

 

A taxpayer carries its burden to prove that the subject property is substantially overvalued when it proves that the assessed value in relation to just value is manifestly wrong

 

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 3

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 3

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 2

 

 

Where a municipality admits a given value, the Board is bound by this value if the taxpayer does not present credible evidence of value, and may examine the entire record to determine fair market value, when measured against the admitted value, only if the taxpayer does present credible evidence of value

 

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 14

 

 

Assessor can be manifestly wrong in three ways: (1) substantial over-valuation leading to an injustice; (2) unjust discrimination; or (3) fraudu- lent, dishonest, or illegal action

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 4

          McDonald’s Corp. v. Town of Freeport, No. 89-17, at 5 (stating this

as four ways with (1) divided into (a) irrational and (b) so

unreasonable that an injustice occurs)

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-21, 92-94 &

92-95, at 5 ((2) involved)

          Mountain View Associates v. Town of Madison, No. 91-35, at 4

          Chatfield v. Town of Rockport, No. 91-56, at 3

          Harbor Island Trust v. Town of Friendship, No. 91-93, at 2

          Oxford Paper Co. (Boise Cascade) v. Town of Mexico, No. 91-102,

at 4 (stating only (1))

          Lincoln Realty Associates v. Town of Lincoln, No. 91-103, at 3

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 6, 7

((2) involved)(Decision I)

          Hardy, Wolf & Downing v. City of Lewiston, No. 92-06, at 3 (stating

only (1))

          Applewood Housing Associates v. Town of Camden, No. 92-18, at 3

                   (Board notes this is not (2))

          Weymouth (Townhouse Estates I) v. Town of Camden, No. 92-29,

at 3

Weymouth (Townhouse Estates II) v. Town of Camden, No. 92-30

at 3

Camden Housing Associates v. Town of Camden, No. 92-32, at 3

Dirigo Management Co. v. City of Bath, No. 92-34, at 4 ((1) involved)

IBM Credit Corp. v. City of Bath, Nos. 92-42 & 93-32, at 2 (taxpayer

claimed (1) and (2))

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

at 5-6, 9 ((1) involved re realty and (2) involved re personalty)

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 1 (Decision II)

                   (taxpayer claimed(2)), 2 (stating burden in terms of (1))

          Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 92-97,

at 2 (taxpayer proves (1) when it proves assessor was

manifestly wrong)

          Thayer Garden Associates v. City of Waterville, No. 92-99, at 3

                   ((1) involved)

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

with Landco Realty Co. v. City of Biddeford, No. 93-70, at 5

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 3

((1) proved due to shift of the economic community in city)

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 6

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

at 4 (Board found (1))

          Sawyer Environmental Recovery Facility v. Town of Hampden,

No. 93-34, at 5 (Board found (1))

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49 & 92-55–92-64, at 3

          LeMaistre v. Town of Freeport, No. 93-56, at 3 (farmland case)

          Alpine Realty Trust v. City of Biddeford, No. 93-72, at 2, 3 (no proof

of (2))

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 5-8 ((1) involved)

          J & N Sanford Trust v. Town of Sanford, No. 93-82, at 3

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 4, 5, 6-17 ((1) and (2) involved)

          Brant-Meyer v. Town of Freeport, No. 93-99, at 2 (farmland; (1)

involved)

          Messina & Sprowl Associates, Inc. v. Town of Hampden,

No. 93-103, at 2 ((1) proved due to lack of public water,

sewer, and access roads)

          Maine Orion Properties v. Town of Falmouth, No. 93-107, at 2

                   ((1) involved)

          Unitrode Corp. v. City of Westbrook, No. 93-116, at 6

          Presque Isle Investors v. City of Presque Isle, No. 94-03, at 3

((1) proved due to shift of the economic community in city)

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 4 (Decision I),

at 2 (Decision II)

          Knox Hotel Associates v. Town of Thomaston, No. 95-132, at 2-3

((1) involved)

          Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 3 ((1) at

involved)

          AWD Management (Chiricahua, Inc.) v. City of Westbrook, No. 95-163,

                   at 2 ((1) involved)

          Roderick v. Town of Crystal, No. 97-103, at 3 (taxpayer met burden

in tree growth case)

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 3

          Port Resort Realty Corp. v. Town of Kennebunkport, No. 98-004, at 1

                   ((1) involved)

          Keene v. City of Auburn, No. 98-023, at 4 (no proof of (1))

          B & B Properties v. City of Ellsworth, No. 98-026, at 2

          Provost, Inc. v. Town of Windham, No. 98-029, at 3

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 2-3 ((1) involved)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 3 (Board found (1) in part)

          Carroll v. Town of Cornish, No. 2001-002, at 8 (to misclassify

property and deny an abatement request is to cause an overvaluation)

UAH-Hydro v. Town of Winslow, 2001-009, at 7-9 (noting

requirements; taxpayer failed to prove (1), (2), and (3))

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 3

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 12

(quoting Sprague Energy)

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 2, 3

(where Board finds (1), it need not reach claim of (2); proof of (1) is not required for proof of (3))

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

                   at 2 ((1) involved)

          KeyBank National Ass’s v. Town of Phippsburg, No. 2006-002, at 5

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

at 2 ((1) involved)

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 12 ((1) and (2)

                   involved)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 2

                   ((1) involved)

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 3 ((1) and (2)

                   involved)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 3

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 4

                   ((1) involved; substantial overvaluation means overrated with

                   reference to just value)

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 2 ((1)

                   Involved)

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 2 ((1) involved)

Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 16-17

                   ((1) involved)

          Brown v. Town of Bucksport, No. 2009-031, at 15 ((1) involved)

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 2

          Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

          of Smyrna, Nos. 2010-007 & 2010-006, at 2 ((1) involved)

 

 

Burden is on the taxpayer to clearly state its argument and produce evidence in support of it position

 

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 15

                  

 

A municipality’s ambiguous and inconsistently applied taxing policy will be construed in favor of the taxpayer

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 29

                   (town inconsistently classified similar properties in either of two

                   different land classifications with different per acre values)

 

 

Where a municipality classified more acreage as a certain land type than appeared on the face of the earth, the taxpayer met its burden to prove the assessment was manifestly wrong

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 28-29

 

 

“Manifestly wrong” is not an initial burden that a taxpayer must meet, but the ultimate point that may be reached only if sufficient credible evidence of value has first been presented

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 13

 

 

“Manifestly wrong” describes a substantive burden, not to be equated with preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 3-4 n.1

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 14-15 n.7

 

 

Any prior formulations by the Law Court of taxpayer’s burden are not now to be followed

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 3-4 n.1

 

 

The burden to show the assessor was manifestly wrong never shifts from taxpayer

 

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49 & 92-55–92-64, at 3

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 5, 16

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 3 (Decision III)

          Port Resort Realty Corp. v. Town of Kennebunkport, No. 98-004, at 1

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 4, 5

U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 31 n.24

 

 

It is not enough for an aggrieved taxpayer simply to disagree with the assessment

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 18, 24

 

 

The Board can undertake an independent determination of value only if taxpayer presents sufficient credible evidence of valuation, and cannot do

so without such a showing

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 4,

22-23, 28-29

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 11-12

                   (quoting Sprague Energy), 13, 18, 31 n.24

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 2

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

                   at 3, 5 n.5

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

at 2-3

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 3

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 3

          PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old

                   Town, Nos. 2008-013 & -029, at 3

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 3

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 3

Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 18

 

 

What constitutes sufficient credible evidence of value is determined case-by-case

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 14 n.7

 

 

Assessors are presumed correct because of their special knowledge of local conditions, giving them judgment and practicality that are equal to, or greater than, that of experts

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 4-5

 

 

Assessors are not always experts

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 32 n.25

 

 

Assessing and appraising are imperfect endeavors and may involve a substantial amount of judgment

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 32 n.25,

35

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 15

 

 

Valuation inherently cannot be perfect and does not demand mathematical precision

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 5

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 35

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 32 n.25,

                   35

 

 

Assessors are obliged to avoid speculation

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 25, 26-27

                   (the rule of avoiding speculation also applies to eminent domain)

 

 

A taxpayer need not present a flawless attack on the assessor in order to prove he is manifestly wrong

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 36

 

 

The Board must be wary about equating flaws in appraisal with a con-clusion that an appraiser has failed to present credible evidence of value

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 18-19

 

 

An abatement is the proper remedy for violations of 36 M.R.S. § 841(1)(1st ¶) (overvaluation) and (2nd ¶)(illegality, error, irregularity)

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 12 (1st ¶)

          Brown v. Town of Bucksport, No. 2009-031, at 15 (1st ¶)

          Haggard v. Town of Swan’s Island, No. 2010-012, at 9 (2nd ¶)

 

 

Claims of overvaluation are quintessentially abatement cases

 

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005, at 13

 

 

In overvaluation claims, manifestly wrong means that the judgment of the assessor was irrational or so unreasonable in light of the circumstances that the property is substantially overvalued and an injustice results

 

Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 3-4

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 12

(quoting Sprague Energy)

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 12

          Brown v. Town of Bucksport, No. 2009-031, at 15

 

 

Overvaluation can also be connoted by arbitrariness (although that concept ordinarily relates to discrimination)

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 17 n.6

(taxpayer made no claim of discrimination); at 29-30

 

                  

Board has no duty to perpetuate arbitrariness in either context

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 17 n.6

 

         

Unjust discrimination defined

 

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 &

93-14, at 5 (unjust discrimination occurs only when the valuation system necessarily results in unequal treatment) 

Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

                   93-135, at 5 (same)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 6, 15 (same)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 11 n.6

(defining unjust discrimination variously under Law Court decisions)

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 3

(unjust discrimination occurs only when the valuation system necessarily results in unequal treatment)

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

                   3 n.1 (same)

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 17 (defining

                   unjust discrimination as in U. S. Optical Disc)

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 3 (unequal

                   apportionment, prohibited by Art. IX, § 8)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 4, 14 (occurs when a taxpayer proves the method of

                   assessment results in unequal apportionment because taxpayer

                   has been treated differently than similarly situated property)

 

 

Unjust discrimination discussed

 

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 3-4 (Decision II)

                   (straight line method of assessing resulted in discrimination

when used for both shorefront, inland island property, and mainland shorefront property and for islands of different sizes and shapes)

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 6 (no discrimination

where comparable multi-family units were assessed across the board at same ratio)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 15-17 (no evidence of result oriented assessment; personal property was properly accounted for; and cost of personalty was not selectively trended)

          Cumberland Property Trust v. Town of Gorham, No. 93-111, at 3

                   (use of certified ratio based on market value, not assessed

value, does not discriminate against taxpayer)

          Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43, at 3

                   (none found)

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 4 (Decision I)

                   (none found when assessor made reasonable adjustments

between neighborhoods as he thought warranted); at 4, 5-7

(Decision III)(“gut feel” of assessor, his changing neighborhood code for valuation, consideration of wildlife preserve acreage in determining lot sizes in one neighborhood were larger are all arbitrary, but not fatally); at 8 (but discrimination found only when those facts are combined with failure of assessor to apply to one neighborhood sales from another similar neighborhood that adjusted downward assessments there)

          Riverview Timeshare Trust v. Town of Bethel, No. 2002-009, at 1

                   (noting petitioner’s claim)       

          UAH-Hydro v. Town of Winslow, 2001-009, at 8-9 (market value of

leases, not value of leases in place, should be used because otherwise good management is penalized and poor management rewarded)

           GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 14 (mall in-line stores are not similarly situated with

                   mall anchor stores or parcels in proximity to mall)

 

 

Unjust discrimination connotes a systematic purpose to cast a disproportionate share of the public burden on one taxpayer or one

class of taxpayers

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 16

         

 

Invidious intent is unique to discrimination claims

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 16

          See Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016,

                   at 6 n.3

 

 

“Intentional violation of essential principles of practical uniformity” applies only in discrimination cases

 

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 5 n.5 (that taxpayer must show an “intentional violation of essential principles of practical uniformity” may apply only in discrimination cases)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 4-5

n.2 (although Board notes that Law Court in the past had cited this standard also in overvaluation cases)  

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 16-17 n.10

                   (Board again notes that Law Court in the past had cited this

                   standard also in overvaluation cases)

 

 

No unjust discrimination if assessors’ method of appraising was general and uniform in application

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 15

 

 

No unjust discrimination if properties at issue are not similarly situated

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 17, 19

                   (petitioners’ properties not similarly situated with those

of other taxpayers)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 14

          See Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016,

                    at 6 n.3

 

 

One property’s merely being adjacent to a second particular property does not make the two similar or part of the same neighborhood

 

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 14

          See Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016,

                    at 6 n.3

 

         

Fair market value need not be shown to establish discrimination in assessment, although evidence of fair market value of other properties

is useful

 

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 3 (Decision II)

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 4 (Decision I),

at 8 (Decision III)

 

 

Overvaluation is not required to prove a case of discrimination

 

          UAH-Hydro v. Town of Winslow, 2001-009, at 8

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007,

at 3

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 15-16

 

 

To do more than impeach the assessor here means that the taxpayer must do more than show merely that the assessor has made an error in judgment, or that there are sporadic differences in valuation here and there, although that may result in a lack of uniformity

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 17-18 & n.11

                   (Board notes the Law Court formerly applied this rule to

                   cases as well)

 

 

Possible underassessment of property does not defeat claim of discrimina- tion when city still applied valuation adjustments to similar neighborhoods unequally

 

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 4 (Decision I)

 

 

Abatement is the proper remedy for unjust discrimination

 

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 15

 

 

Illegality defined: an act that is unauthorized by law or that exceeds the bounds of the taxing entity’s authority

 

          Carroll v. Town of Cornish, No. 2001-002, at 8 n.6 (considering

misclassification as an overvaluation, there is no need to consider whether it is an illegality)  

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 11 n.6

(illegality exists when assessing authority acts beyond its authority or without authority)

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002,

at 6, 10

          Bayroot, LLC v. Highland Plantation, Nos. 2009-004, -005 & -033

at 3 (giving as examples of illegality the assessment of exempt

property or the overvaluation of property due to a clerical error)

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 17 n.6

 

 

Claim of illegality in valuing an intangible (reciprocal easements)

 

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 15 (rejected because easements generally run with the

                   land and, being inseparable from it, must be considered under

                   section 701-A)

 

 

An error made in determining valuation is not an illegality but simply an error in the valuation of property

 

          UAH-Hydro v. Town of Winslow, 2001-009, at 9 (taxpayer argued

assessor’s use of intangible property, a purchase power agreement, was an illegality)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 11 n.6

                   (mere error leading to overvaluation is not an illegality)

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 3

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 10

 

 

Claim of illegality based on argument that the assessors succumbed to political pressure in increasing property values in town

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 17 n.6

                   (correct question is not one of political pressure but whether

increases resulted in overvaluation or discrimination)

 

 

Highest and best use

 

Kamp Kohut, Ltd. v. Town of Oxford, No. 90-18, at 2 (town

misidentified highest and best use of camp as a residential

subdivision)

          Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43, at 3

                   (highest and best use is potential use)

          UAH-Hydro v. Town of Winslow, 2001-009, at 7 (purchase power

                   agreement, an intangible, must be considered in determining

highest and best use because entwined with tangible property)

Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

at 5, 6 (highest and best use is the foundation upon which all further analysis of fair market value rests)

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

                   at 7 (IRS section 42 LIHTC project’s highest and best use cannot

be compared to the highest and best use of an unregulated

market; low rent rates in a federally subsidized housing project

do not translate into poor management); at 7-9 (taxpayer relying on rent restrictions imposed by LIHTC program but not considering tax benefits of program because they are an intangible did not present credible evidence of value); at 9 (rent restrictions and tax credits are inextricably intertwined with highest and best use)

Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 5-6 (working

waterfront statute, 1135 (1)(A), (2), and section 701-A speak to definition offered in The Appraisal of Real Estate; current use value is different)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 15,

17, 20 (Board finds credible taxpayer’s conclusion of highest and best use as IRS section 42 LIHTC program congregate housing, rather than city appraiser’s conclusion of elderly housing without considering section 42 rent restrictions and tax credits)

Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 27

          (assessor improperly regarded property as if unencumbered); at

          28, 37 (taxpayer’s appraiser properly regarded property as rent

          restricted); at 33, 37 (city’s appraisers properly regarded

          property as a rent restricted); at 36 (section 701-A implements

          highest and best use; where intangible is inextricably

intertwined with highest and best use, it must be valued);

at 36- 37 (definition stated); at 37 (actual use is a strong consideration); at 37, 62-63 (assessor ignored what is legally permissible)

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 26 (fair

                   market value must be determined according to highest and best

                   use); at 27 n.11 (section 701-A implements highest and best

                   use)

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 16-17

(determining highest and best use of land as improved is a recognized approach, but may leave open the possibility that another use would take advantage of improvements and be maximally productive); at 17 (highest and best use looks to all permissible uses and is the foundation upon which any true analysis of fair market value rests)

 

 

Use of leased fee interest, a contract analysis, rather than fee simple interest, a market analysis, for properties generally sold subject to leases

 

           J & N Sanford Trust v. Town of Sanford, No. 93-82, at 2, 3

(subsequently rejected by the Law Court)

          Capitol Shopping Center v. City of Augusta, Nos. 94-29 & 95-164,

at 2, 3 (both sides used this, and city used market analysis

as well)

          AWD Management (Chiricahua, Inc.) v. City of Westbrook, No. 95-163,

at 2 (taxpayer used combination of leased fee interest and

market rents)

Falls Development Associates, L.P. v. City of Saco, No. 2008-025,

at 8-10 (error to rely on lease fee value alone, although it may aid an assessor in determining market value, but appraisers’

use of “investment value” in the circumstances was shorthand  for their analysis of the benefit of financing arrangements)

 

 

Just value is market value is true value

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 4

          Central Maine Power Co. v. Town of Moscow, No. 90-43, at 2

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

at 5

          Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 92-97,

                   at 2

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49 & 92-55–92-64, at 3 n.1

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 4

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 5 n.2

          Adams v. City of Biddeford, Nos. 95-029-95-104, at 3 n.2

(Decision III)

Spang Enterprises v. Town of Kennebunkport, No. 96-011, at 2

Maine Public Service Co. v. City of Caribou, No. 97-108, at 4 n.2

          Port Resort Realty Corp. v. Town of Kennebunkport, No 98-004,

at 2 n.1

          B & B Properties v. City of Ellsworth, No. 98-026, at 6

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 3 n.1

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 4

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

                   at 3 n.2

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

                   at 2 n.1

Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 5 n.6

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at

3 n.2

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 3 n.4

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 3 n.3

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 4

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 2 n.3

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 16, 27

n.11 (fair market value is defined similarly in both assessment cases and eminent domain cases; both kinds of cases may take comparable sales into account; and both rely on highest and best use)

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 2 n.2

          Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

of Smyrna, Nos. 2010-007 & 2010-006, at 3 n.2

 

 

Market value is determined by what a willing buyer would pay a willing seller at a fair public sale

 

          Messina & Sprowl Associates, Inc. v. Town of Hampden, No. 92-97,

at 2

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 4-5

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 12

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 21-22

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 27 n.11

 

 

Fair market value is a question of fact

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 30

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 19

 

 

An arm’s length sale of property at or near the valuation date may be considered as evidence of fair market value

         

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 12

 

 

Fair market value cannot be derived from a non-arm’s length transaction

 

          Waterville Homes, Inc. v. City of Waterville, Nos. 90-16 & 91-06,

                   at 4

          Cf. GTS Foreside Ltd. v. Town of Falmouth, No. 91-12, at 2

                   (petitioner failed to proved transaction was non-arm’s length)

          Cf. GTS Foreside Ltd. v. Town of Falmouth, No. 91-63, at 2 (same)

          J & N Sanford Trust v. Town of Sanford, No. 93-82, at 3 (Board

suggests even distress sales are some indication of value)

          Maine Orion Properties v. Town of Falmouth, No. 93-107, at 2

          Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 3

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

9-015 & 99-027, at 12 (at the very least, sales price must be the result of an arm’s length transaction)       

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

LLC v. Town of Cushing, Nos. 2006-017 & -018, at 8 (the

          market for unfinished developments may involve bankruptcies

and foreclosures which are not arm’s length transactions and

so are not indicative of fair market value)

 

 

Fair market value cannot be determined from listings that did not result in sales

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 23 n.18

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 20 n.8

 

 

Fair market value of personal property or real estate is not to be determined strictly by purchase price

 

          Danny’s, Inc. v. Town of Old Orchard Beach, No. 91-38, at 5

                   (personalty)

          B & B Properties v. City of Ellsworth, No. 98-026, at 7 (real estate;

sales price may represent value as an investment, possible future value)

 

 

Investment value (subjective and personal to the owner or investor) defined and distinguished from market value (objective, impersonal, detached)

 

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025,

at 8-9; at 35 (city’s appraisers distinguished favorable financing

from investment value; true investment value will vary with fluctuating interest rates)

 

 

Evidence of just value may be offered through opinions of property owners and expert appraisers

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 16

 

 

A property owner is competent to give an opinion of value by virtue of ownership

 

          Waterville Homes, Inc. v. City of Waterville, Nos. 90-16 & 91-06,

                   at 5

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 23 n.17

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 19

          Brown v. Town of Bucksport, No. 2009-031, 18

           

 

Right of a corporate officer to offer an opinion of value does not arise merely from one’s owning or holding an office in a company

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 19

          Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

                   of Smyrna, Nos. 2010-007 & 2010-006, at 7 n.5

 

 

An owner’s opinion of value is only as good as the witness’ qualifications and logic of his opinion

 

          See U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004,

at 23 n.17

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 19

          Brown v. Town of Bucksport, No. 2009-031, 18

 

 

An owner’s opinion of value does not by itself always constitute credible evidence of value, for otherwise the evidentiary burden placed on taxpayers challenging an assessment arguably could become so easily met as to be meaningless

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 23-24

                   (owner’s opinion was unconventional in that he accepted town’s

value assigned to various land types but disagreed as to the

acreage assigned to the land types, but was not thereby

unhelpful or unreliable)

 

 

Owner’s credible opinion of value taken together with bases for impeaching the assessment prove assessments were arbitrary, and so were substantially overvalued and therefore manifestly wrong

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 24-30

 

 

While it is true that an owner’s opinion of value may be self-serving, the same may be said of almost any interested witness

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 23

 

 

Industrial property cannot be valued according to sales of residential properties

 

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

          at 8

 

 

Valuation is not to be arrived at by treating taxpayers with equality, but by first determining fair market value

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 11-12 n.6,

                   26-27

 

 

Uniformity and equality are preferred only if one cannot determine fair market value

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 27

 

 

If it impossible to secure both true value and uniformity, the latter is preferred

 

Inhabitants of the Town of Madison v. State Tax Assessor, No.

86-07, at 6

 

 

Valuation is not value

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 6

 

 

Fair market value is not book value

 

          Babcock-Ultrapower West Enfield v. Town of Enfield, No. 96-049, at 3

 

 

Valuation of land, buildings, and personalty for bookkeeping purposes was relevant to, but not determinative of, fair market value

 

          Oxford Homes, Inc. v. Town of Oxford, No. 90-31, at 4

 

 

Discussion of assessor’s reliance on purchase power agreement (an intangible property right) on valuation

 

          UAH-Hydro v. Town of Winslow, 2001-009, at 13-17 (purchase

power agreement is so intertwined with highest and best use

that it must be considered when valuing property); at 13 n.10 (intangible rights have been considered when valuing real purposes); at 17 (the value of intangible rights, without which a possessory interest could be put to beneficial use, should be considered in valuing the possessory interest)

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 9

(town failed to account for income stream following end date of purchase power agreement)

 

 

Discussion of effect on value of tax credits and rent restrictions (intangibles) under federal Low-Income Housing Tax Credit (LIHTC) Program, 26 U.S.C.

§ 42

 

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

at 6-10 (both mandated rent restrictions and IRS section 42 tax credit benefits are inextricably intertwined with the highest and best use of the property and thus must be considered in determining fair market value; although assessor did not include value of tax credits in his assessment, taxpayer did not offer evidence of value of the credits, so even though assessor was impeached his assessment stood in the absence of credible evidence of value offered by taxpayer)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 7,

8 (question is not whether section 42 low-income housing tax credits should be considered in determining fair market value, but how the credits should be valued); at 19-25 (tax credits and rent restrictions must be considered as inextricably intertwined with value of property at its highest and best use); at 21 (tax credits are dollar for dollar deductions off tax liability of property owner, regardless of owner’s income level)

 

 

Effect of federal housing program subsidies on value

 

          Mountain View Associates v. Town of Madison, No. 91-35 (FmHA

                   section 515), at 4 (income approach not necessarily the only

                   approach to use); at 5 (subsidies are a benefit to owner and

add value)

          Searsport Realty Associates v. Town of Searsport, No. 91-89 (same),

at 3 (incentives, guarantees, and tax write-offs render income

approach inappropriate); at 4 (cost approach used)

          Glenridge Development Co. v. City of Augusta, No. 91-90 (section 236

                   of the National Housing Acts of 1937 and 1949), at 4 (subsidies

                   are a value-influencing factor; cost approach used)

          Lincoln Realty Associates v. Town of Lincoln, No. 91-103 (FmHA

                   section 515), at 3 (relying on conventional properties “may be

questionable”; cost approach most appropriate to value favorable interest rates)

          Applewood Housing Associates v. Town of Camden, No. 92-18 (same),

at 2-3 (only question: value of operating expenses)

Weymouth (Townhouse Estates I) v. Town of Camden, No. 92-29

          (same), at 2-3 (same)

Weymouth (Townhouse Estates II) v. Town of Camden, No. 92-30

          (same), at 2-3 (same)

Camden Housing Associates v. Town of Camden, No. 92-32 at 2-3 (same)

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97

(section 8, Housing and Urban Development elderly housing project); at 4 (Board agreed income approach as used by city was inadequate; however, no relief granted where taxpayer’s claimed value was within 10% of correct assessment; cost approach inadequate when based on construction costs, not actual costs); at 5 (sales of comparable Maine State Housing Authority elderly housing also used)

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

                   93-24 (section 8 congregate housing project), passim

          Knox Hotel Associates v. Town of Thomaston, No. 95-132 (HUD

                   Housing Assistance Program), at 2 (taxpayer did not use cost

                   approach, which it believed was inapplicable to federally

                   subsidized housing); at 2-3 (Board found cost approach

                   appropriate and income approach speculative)

Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008 (Low

Income Housing Tax Credits), at 7-9 (taxpayer relying on rent restrictions imposed by IRS section 42LIHTC program but not considering tax benefits of program because they are an intangible did not present credible evidence of value)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013 (same),

                   at 22 (income subsidy in form of obligation to fund operational

                   losses inclusive of support services and payment of debt service,

                   when made as a condition of the award of tax credits, is

entwined with the property and therefore influences its value); at 23 (income stabilization from subsidy)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 3

                   (financing agreement was the very essence of apartment complex’s

operation, and the very vehicle which allowed it to be developed

and maintained); at 4 (such arrangements are to be considered in valuing property when they are inextricably intertwined with its highest and best use); at 10 (valuing a subsidized housing project is different from valuing property in the unregulated market based on poor management); at 21-24 (section 8 described); at 27 (assessor relied on cost approach only); at 36 (where an intangible is inextricably intertwined with highest and best use, it must be valued); at 57, 61 (income approach preferred); at 59, 65 (error for taxpayer to ignore effect of financing arrangements on value); at 60, 65-66 (valuation process must consider both positive and negative aspects of regulatory agreements)

 

Valuation of a subsidy “above the line” (providing owner with a benefit) vs. “below the line” (saving the owner money

 

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025,

                   at 26 n.5; at 59 (they have the same practical effect); at 65

(a difference without a principled distinction; taxpayer erred in seeking to have the Board consider only section 8 restrictions and not benefits of financing)

 

 

Reduction in value for environmental tax exemptions

 

          Oxford Paper Co. (Boise Cascade) v. Town of Mexico, No. 91-102,

at 4

 

 

Effect of Public Utilities Commission regulation on value

 

          Central Maine Power Co. v. Town of Moscow, No. 90-43, at 2-5

          UAH-Hydro v. Town of Winslow, No. 2001-009, at 12-13

 

 

Value for rate-making purposes (net book value) is not necessarily the same as for tax assessment purposes

 

          Central Maine Power Co. v. Town of Moscow, No. 90-43, at 3-4

 

 

Condominiums, 33 M.R.S. § 1601-105(b), and timeshare units, 33 M.R.S.

§ 593(2), are to be separately assessed and taxed

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 39, 67-68 (condominiums)

          Riverview Timeshare Trust v. Town of Bethel, No. 2002-009, at 5-6

                   (timeshares)

          Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

2003-001 & 2003-002, at 4 (timeshares)

          Rangeley Lake Resort Development Co, LLC v. Town of Rangeley,

No. 2003-019, at 3 & n.4 (timeshares)

 

 

Discussion of advantages of timeshares

 

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

                   No. 2003-019, at 8-9

 

 

Valuation questions involving timeshares

 

          Riverview Timeshare Trust v. Town of Bethel, No. 2002-009, at 6

                   (individually owned timeshares cannot be aggregated to meet

                   $1,000,000 jurisdictional threshold)

Bethel Inn Corp. & Riverview Timeshare Trust v. Town of Bethel,

Nos. 2003-001 & 2003-002, at 7 (timeshare interests held by developer for sale are nonresidential, commercial properties)

          Rangeley Lake Resort Development Co., LLC v. Town of Rangeley,

No. 2003-019, at 10 (individually owned timeshares cannot be aggregated to meet $1,000,000 jurisdictional threshold although developer paid property taxes for all en masse together with taxes on its unsold timeshare interests)

 

 

Docks can be assessed as personal property

 

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-21, 92-94 &

92-95, at 5

 

 

Use of “trending” as a valuation tool is legitimate for assessing machinery and equipment

 

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 15, 17

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 21-22 (commonly used to value machinery and equipment)

 

 

Trending described

 

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 21-22 (using generic factors for broad categories of equipment; it may create substantial risks of inaccuracy in developing reproduction costs and trend factors may not match the items being appraised)

 

 

Approaches to valuation and methods of valuation are to be distinguished

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 21 n.9

 

 

Assessors have considerable leeway in choosing the method or methods they will use to determine value

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 6

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 21

 

 

An assessor or appraiser may use a combination of valuation methods

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 20-21

 

 

Assessors using one method of valuation are to test the reasonableness of their conclusion by reference to other methods

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 14 n.11

 

 

Variations on traditional approaches or new methodologies may be useful if accurate and reasonably related to fair market value

 

Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 58

 

 

Assessment of a unique property may call for a unique appraisal method

 

Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 5

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 21

 

 

Municipality need not resort to an alternative method of valuation unless the method used leads to an unjust result

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 5

                   (use of replacement cost less depreciation)

 

 

A municipality can use different assessment methods for different types of property

 

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-21, 92-94 &

92-95, at 5

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 5

          Champion International Corp. v. Town of Bucksport, No. 93-98, at 17

 

 

Whether an approach to valuation is appropriate is a question of fact in each case

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 19

 

 

Whether any formula or methodology determines just value is a question of fact

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 16

 

         

Consideration of all three traditional approaches to value is required

 

Searsport Realty Associates v. Town of Searsport, No. 91-89, at 3-4

Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

          99-015 & 99-027, at 6

Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 19

          Norumbega Bed & Breakfast, LLC v. Town of Camden, No. 2005-017,

                   at 4

          PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old

                    Town, Nos. 2008-013 & -029, at 3 (although taxpayer argued

municipalities did not consider all three approaches to value, appraisers for municipalities did so)

Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 26

          assessor considered all three traditional approaches, but relied

          only on income); at 28 (taxpayer’s appraiser considered all three

          approaches, but relied only on cost); at 32 (city’s appraisers

considered all three approaches); at 62 (rule stated; less satisfactory approach should not be adopted, which assessor did here)

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 20-22

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 17

                   (appraiser did not fail to consider all approaches, but it is up

to the Board to decide the effect of failing to apply a certain approach)

 

 

Assessors cannot begin and end by considering only one method of valuation, even if it should yield a just result

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 6, 12-13

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 17,

33-34

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 7

 

 

Failure of assessors to adequately rely on any of the three traditionally recognized approaches to valuation

 

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 6 (town was unable to produce any records

to show how it arrived at assessments for two years); at 12

(“although the Town may have made an earnest effort to value the property . . . , it ultimately lacked the skills to process the information associated with the property,” and admitted it did not apply any of the approaches)

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 20-22

                   (town performed revaluation and made adjustments thereto)

          Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 4

                   (assessor used only cost approach); at 10 (not fatal to assessor’s

conclusion where taxpayer’s appraiser did not produce credible evidence of value)

 

 

The failure to apply an approach to value impeaches the assessment or the appraisal where the Board finds it should have been applied

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 22

                   (assessment)

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 17

                   (appraisal)

 

 

Failure to consider all recognized approaches to valuation risks not capturing the best evidence of fair market value

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 17

PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old

Town, Nos. 2008-013 & -029, at 3 (one town could not establish which approaches to value were used)

 

 

Whether inability to obtain information justifies not using an approach to valuation

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 10 n.4

                   (town councilor instructed assessor not to gather income

information from business owners)

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 7 (income approach)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 19 (all methods must be considered but one or more need not be applied if shown to be inappropriate); at 20 (sales or market approach inapplicable)

          Cf. U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 34                              (assessor’s errors were greater than an inability to obtain                         information)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 61

                   (assessor may have been hamstrung by taxpayer’s not providing

                   income data)

          See Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 21 n.9

                   (present case does not suffer from this shortcoming)

          Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 4

                   (assessor claimed taxpayer did not provide financial information

                   to allow her to use income approach)

 

 

Because a hearing before the Board is de novo, a municipality may rectify an assessor’s failure to consider more than one approach to valuation by calling other witnesses

 

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 7-8

 

 

Revaluations or town-wide assessments are a widely used methodology for municipal assessors

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 21-22

                   (revaluation)

          Brown v. Town of Bucksport, No. 2009-031, at 17 (town-wide

                   assessments used to develop land schedules))

 

 

But mass assessments, by not necessarily applying three traditional approaches to valuation, run the risk of not capturing true value

 

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 22

 

 

Fact that an approach was previously developed during town revaluation and was carried forward to tax year in issue is not necessarily adequate consideration of that approach

 

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 7 (sales approach)

 

 

Use by assessor’s agent of taxpayer attempting a “tax dodge,” while unfortunate, is not relevant to any substantive issue

 

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 9

 

 

Correlation or reconciliation of approaches to determining value

 

          Mountain View Associates v. Town of Madison, No. 91-35, at 3-4

Searsport Realty Associates v. Town of Searsport, No. 91-89, at 3-4

          (requirement that town consider all approaches to valuation)

          Glenridge Development Co. v. City of Augusta, No. 91-90, at 3

          Applewood Housing Associates v. Town of Camden, No. 92-18, at 3

                   (taxpayer conceded income approach was a proper check on

replacement cost approach)

          Weymouth (Townhouse Estates I) v. Town of Camden, No. 92-29,

          at 3 (same)

Weymouth (Townhouse Estates II) v. Town of Camden, No. 92-30

at 3 (same)

Camden Housing Associates v. Town of Camden, No. 92-32 at 3 (same)

          Dirigo Management Co. v. City of Bath, No. 92-34, at 4

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

          at 8 (income and market approaches are not appropriate to

special purpose properties)

          Thayer Garden Associates v. City of Waterville, No. 92-99, at 2 (city

used cost method for commercial properties, for consistency, but correlated valuation by use of other methods)

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 2 (city

admitted not using one method and not correlating the two

used)

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 5 (city considered

                   all methods of valuation)

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

at 3 (both sides correlated appraoches)

          Alpine Realty Trust v. City of Biddeford, No. 93-72, at 3 (city used cost

                   approach, supported by market and income approaches)

          J & N Sanford Trust v. Town of Sanford, No. 93-82, at 1-2 (taxpayer

correlated sales and income approaches)

          Knox Hotel Associates v. Town of Thomaston, No. 95-132, at 1-2

                   (taxpayer correlated sales and income approaches, and town

used all three)

          Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 2 (taxpayer

considered all three methods)

          FLS Associates v. City of Augusta, No. 95-153, at 1 (taxpayer used

two methods and rejected use of third)

          Spang Enterprises v. Town of Kennebunkport, No. 96-011, at 1, 3

(taxpayer considered all three methods, but its rejection of  two means taxpayer did not prove assessor manifestly wrong)

          Pope v. Town of Old Orchard Beach, Nos. 96-039–96-041, at 3

                   (town considered all three approaches but rejected use of

one)

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 2-3

(assessor testified to use of all three approaches)

          Port Resort Realty Corp. v. Town of Kennebunkport, No 98-004,

at 2, 3 (taxpayer reconciled with income approach; town used all three)

          B & B Properties v. City of Ellsworth, No. 98-026, at 10 & n.4, 11

(while taxpayer presented evidence of correlation, assessor was unable to do so because city councilor urged her not to seek to obtain income information from store owners who did not want to divulge it)

          Provost, Inc. v. Town of Windham, No. 98-029, at 2 (assessor con-

sidered all three approaches)

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 6, 8 (town must consider all three approaches, but need not apply one or more if a reasonable basis for that decision exists; question whether all three approaches were considered is a fact question bearing on credibility of assessment; appraiser considered all three methods)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 13-14 (town’s effort at reconciliation of two methods when third method deemed inappropriate due to lack of sufficient financial records); at 19 (same as Northeast Empire Ltd. Partner-ship #2, above)

          PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old

                    Town, Nos. 2008-013 & -029, at 3-4 (one town’s assessor was

impeached when assessor’s agent could not find any records to support assessment, so town could not establish what approaches to value were applied, and other town relied on brief handwritten notes not related to income)

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 9-13 (taxpayer’s appraiser applied all three approaches, thereby producing credible evidence of value, and considered sales and income most useful)

 

 

Adequacy or usefulness of income approach

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 6 (project

                   incomplete and inoperable; no income attributable to it)

          Kamp Kohut, Ltd. v. Town of Oxford, No. 90-18, at 2

Great Cove Boat Club, Inc. v. Town of Eliot, No. 91-01, at 3   

GTS Foreside Ltd. v. Town of Falmouth, No. 91-12, at 2

Mountain View Associates v. Town of Madison, No. 91-35, at 3-4

          (not required with subsidized housing, but when used should

          include rent and interest subsidies as income)

          Searsport Realty Associates v. Town of Searsport, No. 91-89, at 2-3

                   (application to FmHA project; said to not involve normal

investment expectations due to incentives, guarantees, and

tax write-offs; town’s asserted use of this approach rewards bad management)

          Lincoln Realty Associates v. Town of Lincoln, No. 91-103, at 2

                   (application to FmHA project; said by town to overlook the

value of favorable interest rates)

          Applewood Housing Associates v. Town of Camden, No. 92-18,

at 2-3 (claim that with FmHA property town should have

utilized actual expenses of operation, rather than a traditionally used expense factor extrapolated from owners of other income producing properties)

          Weymouth (Townhouse Estates I) v. Town of Camden, No. 92-29,

          at 2-3 (same)

Weymouth (Townhouse Estates II) v. Town of Camden, No. 92-30

at 2-3 (same)

Camden Housing Associates v. Town of Camden, No. 92-32 at 2-3 (same)

          Dirigo Management Co. v. City of Bath, No. 92-34, at 3

(city had criticisms over taxpayer’s expert’s deductions for “concessions or unrecovered expense chargebacks”; management fees; additional leasing commission fees; repairs and renovations; local property taxes—when after all entire exercise is to determine the appropriate amount of tax)

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

          at 8 (not appropriate for special purpose property)

          Thayer Garden Associates v. City of Waterville, No. 92-99, at 2

(taxpayer claimed income approach best accounts for locational, economic, and functional obsolescence)

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

with Landco Realty Co. v. City of Biddeford, No. 93-70,

at 3-5, 6 (taxpayer claimed income approach best accounts for rapid depreciation of real estate values; city did not rely on income approach because of net operating loss; Board found it deficient here for lack of verifiable supporting documentation and not being derived from audited accounting statements)

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

at 5 (city should have deducted real estate taxes from net

operating income)

Harris v. City of Lewiston, Nos. 93-19–93-22, at 2 (city performed

income analysis based on values generated by cost approach, proving no inequitable valuations)

          J & N Sanford Trust v. Town of Sanford, No. 93-82, at 3 (town did

not use this approach and declined to assert that its assessment represented fair market value)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 8, 10-11, 13-14 (taxpayer developed three analyses for income approach: merger and acquisition, leveraged buyout, and initial public offering (which resembles a discounted cash flow analysis); Board found income approach may not be reliable for cyclical industries)

          Carle Street Associates v. City of Waterville, Nos. 94-23 & 95-162,

at 2 (taxpayer asserted city must use individual income and

expense figures; city used market income and expense information and standardized adjustments for all taxpayers, so no inequality resulted, although taxpayer contended this is a form of averaging that penalized properties that perform below market expectations)

          Capitol Shopping Center v. City of Augusta, Nos. 94-29 & 95-164,

at 2, 3 (both sides used lease fee analysis—a contract income

analysis—and city used market value also)

          AWD Management (Chiricahua, Inc.) v. City of Westbrook, No. 95-163,

at 2 (city challenged methodology as inadequate for not considering cost approach, excluding improvements to building, averaging of market rents, use of lease fee figures on the property itself, and reliability of income figures supplied by taxpayer)

Spang Enterprises v. Town of Kennebunkport, No. 96-011, at 1-2

(taxpayer used this method and challenged town’s appraisal as having no basis for its income figures)

          Pope v. Town of Old Orchard Beach, Nos. 96-039–96-041, at 1-2, 3

                   (taxpayer alleged town underestimated capitalized expenses

for maintenance and associated contract labor, and overstated salary expenses; town based its analysis on market determination of average rental fees with allowance for unused lots and undeveloped areas)

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 2 (not used

by taxpayer because appraiser could not find an investor market for building in issue)

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 8 (property

                   taxes are not considered an expense excluded from net

operating income; if property taxes are excluded and then are ultimately determined to be too high, the fair market value as appraised would be too low, and vice versa; instead, the property tax rate is loaded into the cap rate, thus avoiding distortion of fair market value); at 13 (city could not explain method used to arrive at 40% cap rate)        

          Keene v. City of Auburn, No. 98-023, at 4 (farmland case; income

                   approach not used due to lack of information)

          Provost, Inc. v. Town of Windham, No. 98-029, at 2 (used by assessor

                   as a reasonable check on cost approach)

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 6, 8-10 (assessor’s assistant did not use income approach because of great difficulty in obtaining information on large scale electrical generation facility; appraiser undervalued electricity price, adjusted weighted costs of capital without explanation and wrongly included income taxes as operating expenses when they are a expense of ownership; Maine Public Service Co. language quoted)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 20-21, 22-23 (income approach one of two methodologies used by appraiser, but he did not deduct economic obsolescence); at 22 (taxpayer’s appraisers utilized income approach); at 24 n.24 (income approach relevant to calculation of economic obsolescence appraiser applied to cost approach)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 19

(appraiser opined that income approach was inapplicable to special use property (oil terminal) that is owner operated and not typically built to lease to collect revenue)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 20

(appraiser of real property relied secondarily on income approach)

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

at 6 (income approach most useful, but it was not developed

by town’s appraiser); at 7-9 (although taxpayer relied on income approach, appraiser considered rent restrictions but not value

of tax credits)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 15,

20 (Board finds credible taxpayer’s appraiser’s reliance on income approach that, taking into account rent restrictions and value of tax credits, and consistent with Woodland Kittery); at 24 (city’s appraiser’s reliance on market rents inconsistent with highest and best use of property as low-income elderly congregate care facility)

          PPL Maine, LLC v. Town of Milford and PPL Maine, LLC v. City of Old

                    Town, Nos. 2008-013 & -029, at 3, 4-6 (parties agreed income

approach should be given most weight and discounted cash flow analysis was most appropriate method of determining fair market value, but disagreed on several questions about valuing electricity on doom day, how to predict rate of change in price of natural gas upon which electricity is dependant, and how to calculate the cost of debt and aspects of equity)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 7-9 (application to super regional mall or shopping

                   center urged by taxpayer); at 9-10 (particulars criticized by city);

                   at 10-11 (city’s stabilizing of rent preferable to taxpayer’s

                   averaging of rents)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 57

(use depends on availability of income and expense data, but may be inapposite where property fails to generate high enough rentals to justify property’s quality, size, and layout); at 58 & n.20 (discussing mortgage-equity methodology)

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

                   2010-002-A, at 10-11 (taxpayer’s appraiser correctly deducted

                   income and property taxes from operating expenses because

                   these are an expense of ownership; Maine Public Service Co.

                   language quoted)

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 26 & n.10

(in valuing minerals: in eminent domain cases one is to avoid as

speculative the capitalization of future earnings, while in

abatement cases income capitalization looks precisely to future earnings)

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 6-7, 9

          (taxpayer’s appraiser relied solely on income approach, but did

          so by considering contract-in-place rather than market rates for

          use of gas pipeline, and by assuming income would be the same

          in the last year of the contract as in the first year)

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 18

(taxpayer’s appraiser used erroneous cap rate); at 19 (he also excluded income from certain property that he considered personal, not real, property and that were a part of the town’s assessment); at 19-20 (and he excluded other sources of income from real property)

 

 

Capitalization rates

 

          Thayer Garden Associates v. City of Waterville, No. 92-99, at 2-3

(obtained through mortgage equity band of investment analysis, which accounts for real estate taxes twice, and thus yields an unduly high valuation)

           Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

at 4-5 (city argued taxpayer’s calculation derived from bonds

and investment market was not recognized as valid; city used data from comparable sales of elderly housing; Board agreed the latter is more reliable)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 7, 10 (taxpayer argued cost of excess workers should be capitalized over the expected life of the mill rather than expensed from its yearly cash flow, while town submitted this may be analyzed both in terms of capitalization and non-capitalization of excess costs)

          Pope v. Town of Old Orchard Beach, Nos. 96-039–96-041, at 3

(historical and market evidence lacking to support determination of stabilized estimate of net operating income from which to apply appropriate capitalization rate)

          Provost, Inc. v. Town of Windham, No. 98-029, at 2-3 (direct

capitalization, not discounted cash flow, was appropriate, as were rates used)

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 8

(Board found discounted cash flow capitalization rate offered by town’s witness, when confused and not confined to industry at issue, not reasonable and so his conclusion of value not credible); at 10-11 (Board found appraiser’s suggested capitalization rate based on studies of other states was too high, although his methodology as a whole was credible)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 16,

                   24-25 (taxpayer’s appraiser should have loaded tax rate into

capitalization rate rather than considering real estate tax as a line item expense); at 21 (discounted cash flow reasonable and appropriate to determine value of tax credits because their value is a definite benefit over a time certain)

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 9 (city criticized taxpayer’s cap rate because mall is

                   well established, monopolizes the market, and generates a

                   highly rated undisputed income)

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

                   2010-002-A, at 11 (property taxes are loaded into the cap rate)

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 19

          (the higher the cap rate, the lower the estimated value)

 

 

Income/capitalization-of-cost-savings approach estimates costs saved by avoiding payment of commercial disposal fees and then capitalizes them

 

          Oxford Paper Co. (Boise Cascade) v. Town of Mexico, No. 91-102,

at 2-3

 

 

 “Stabilized income” analysis and “market derived income” analysis

 

          Searsport Realty Associates v. Town of Searsport, No. 91-89, at 2

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 23

 

 

Use of “business enterprise value” or “BEV” (a measure of a property’s going concern) with the income approach

 

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 2, 7, 11-12 (taxpayer argued going concern is an

                   intangible not subject to ad valorem taxation); at 10 (city

                    criticized its subtraction from value as not well accepted); at 13

                   (application of concept to shopping malls is not well developed

                   and has been rejected as speculative)

 

 

Income tax obligations are not to be relied on as evidence of net operating income to establish valuation, but are an expense of ownership

 

          Pope v. Town of Old Orchard Beach, Nos. 96-039–96-041, at 3

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 8

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 9

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

                   2010-002-A, at 11

 

 

Property taxes are not considered an expense to be excluded from net operating income when determining valuation, but are loaded into capitalization rate, thus avoiding distortion of ultimate determination of value, given that all properties within town are assessed at same ratio

 

          Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 10

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 16,

                   25

 

 

Subdivision development method of valuation

 

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 8-9 & n.6

(discussed and criticized, especially given its controversial nature, applicability to a partially completed project, and revisions by appraiser; this is not the only method to value the project being marketed); at 9 (town’s appraiser did not use method because he was not trying to determine owner’s interest, but the value of the parcels for sale)       

 

 

Adequacy or usefulness of sales or market approach

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 6 (unworkable

in absence of comparable sales)

Westpoint Pepperell, Inc. v. City of Biddeford, No. 91-91, at 1-2

(factors discussed: sales outside Maine, six to eight years

old, auction sales, skyrocketing prices, size of properties)

Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 4-5 (Decision I)  

(Board notes weaknesses in analysis of comparables), at 7 (Decision I)(valid for mass valuations except for straight line measurements for shore frontage; town should attempt to equalize values for similarly shaped islands); at 3-4 (Decision II)(Board notes weaknesses in analysis of comparables)

          Dirigo Management Co. v. City of Bath, No. 92-34, at 3

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

          at 8 (not appropriate for special purpose property)

City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

                   with Landco Realty Co. v. City of Biddeford, No. 93-70,

at 3-4, 7 (taxpayer claimed sales approach was inapplicable due to outdated sales and effects of economic recession; Board finds lack of comparable sales, negating use of sales approach)

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 5, 6 (few other

sales, among which were distress sales)

Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

at 5 (city appropriately considered other sales, but

inappropriately used sales with favorable tax incentives)

          Harris v. City of Lewiston, Nos. 93-19–93-22, at 2 (taxpayer argued

market approach is inapplicable where recent sales were at auctions or by mortgagors seeking to salvage investments)

          Central Way Realty Associates v. City of Lewiston, Nos. 93-37–

93-40, consolidated with KNL Associates v. City of Lewiston, Nos. 93-41–93-49 & 92-55–92-64, at 4 (bank sales should not have been used); at 4-5 (Board accepted city assessor’s values, but based upon methodology and data of taxpayer’s expert)

J & N. Sanford Trust v. Town of Sanford, No. 93-82, at 2 (use of

sales approach challenged by town); at 3 (sales used by taxpayer, whether distress sales or not, were an indication

of the market)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 6, 9, 11, 14 (considered but not used by assessor, although taxpayer asserted its use; Board found it inapplicable to specialized industrial property; based on public information, taxpayer used three paper mill sales, which town said was inadequate; Board found other sales to be too few and with too many variables to be meaningful)

          Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43, at 3

(petitioner proffered comparables, but town dismissed their relevance because they were not located close to petitioner’s inn; location an important factor in assessment)

Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 3 (Board

found sales approach had least credibility where non-arm’s length transactions were included in taxpayer’s analysis)        

          FLS Associates v. City of Augusta, No. 95-153, at 2 (city argued

taxpayer’s comparables were inadequate due to age, etc.)

Spang Enterprises v. Town of Kennebunkport, No. 96-011, at 1-2

(rejected by taxpayer due to lack of arm’s length sales, who also criticized town’s appraisal for not listing comparable sales in report)

          Pope v. Town of Old Orchard Beach, Nos. 96-039–96-041, at 2

(taxpayer did not use sales approach; town used it to test income approach)

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 2, 3

                   (Board found taxpayer’s use only of sales approach inadequate,

                   especially given appraiser’s use of only one comparable)

          Port Resort Realty Corp. v. Town of Kennebunkport, No 98-004, at 2

                   (not used by taxpayer because of lack of comparable sales)

          B & B Properties v. City of Ellsworth, No. 98-026, at 10, 11 & n.6

                   (taxpayer offered comparables that assessor attacked,

although it was not her burden to do so)

          Provost, Inc. v. Town of Windham, No. 98-029, at 3 (assessor did

not use sales, as few, if any, were available)

Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 11-12 (sales approach doomed where comparables were not identified, purchase prices of comparables were not disclosed, and there was lack of evidence of arm’s length sales; appraiser wrongly assumed liquidation or removal of property, which remained operational)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 19-20 (appraiser for town correctly disregarded sales approach when it was difficult to find complex industrial property comparables); at 19 & n.19 (sales approach inappropriate when details of other sales are unavailable, although that is admittedly often the case with complex transactions)

          UAH-Hydro v. Town of Winslow, 2001-009, at 18 (use of power

generating that are not stand-alone hydro-power as is the subject property is not credible; sale of facility, during time or deregulation when utilities were required to divest themselves of assets, was forced sale; other sales, of hydro-power facilities are suspect due to time of sales and lack of detailed description)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 23-26

(appraiser opined sales approach was most useful for special use property (oil terminal), but in the end his opinion of value was based on an arbitrary price per unit)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 19

(appraiser of real property relied primarily on sales approach)

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 12

(“auction” open to public, lasting six months, and generating 10 interested, competitive purchasers was not a duress sale)    

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

at 6 (neither sales nor cost approach is useful where recorded

                   rent restrictions and tax credits are not factored in)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 15

(taxpayer’s appraiser did not rely on sales approach, finding no comparables); at 17 (city’s appraiser did not rely heavily on sales approach; her other sales were not comparable)

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 4-6 (assessors’

agent valuing subdivisions began with assessment of original “mother lot” and then considered actual sales to determine base lot value of each project, taking into account rising market and fact properties were not finished, and then reduced the value of common lots, with unbuildable restrictions); at 10 (town’s appraiser appropriately considered sales in all relevant subdivisions and did not consider sales after market conditions began to change)  

          GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine

                   Mall I), at 9 (use urged by city’s review appraiser because the

market for super regional malls is national in scope); at 10-11 (not used by city due to absence of comparables, but its appraiser did test his income and cost approaches against sale within three years of valuation date, as required by USPAP); at 12-13 (taxpayer considered “bulk sale of property” not useful, did not make an allocation for intangible property, did not consider certain tax implications, did not inquire about capitalization rate involved in purchase, did not produce actual contracts and start up data to support his assumptions of value)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 57

                   (often limited by lack of comparables; typically will result in

                   lower values than cost approach)

          Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 10 (taxpayer’s appraiser gave sales of similar

facilities considerable weight as a good indicator of value)

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 20

                   (Board had reservations that taxpayer’s appraiser’s adjustments

                   to comparables were too subjective; comparables suffered from

                   poorer locations)

         

 

Comparables need not be “identicals,” but the sales approach is only as good as the comparables that are offered for comparison

 

          Champion Int’l Corp. v. Town of Bucksport, No. 93-98, at 14 (few sales

with multiple variables makes applicability of sales approach improbable)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 24

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 18 n.12

MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 20

                   (sales approach is only as good as the comparables identified)

 

 

Use of effective gross income multiplier (EGIM), a derivative of the sales approach

 

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 10

                   (derived by dividing a property’s sales price by its effective or

actual gross income at the time of the sale); at 18 (appraiser used an EGIM that tended to produce a reduced value)

 

 

Absorption rate

 

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 9 (taxpayer

                   failed to establish credible evidence of value when its appraiser

                   changed the length of the rate term, did not account for market

                   appreciation or test the values arrived at by comparable sales,

                   deducted for improvements not related to the subject property,

                   failed to establish a clear cut-off date for market change in

                   regard to date of valuation, and did not offer persuasive reason

                   why he a large lot would not sell until later in the absorption

                   period, thus reducing return to the property’s owner)

 

         

The appropriate geographical market is to be determined on a case-by-case basis by considering factors such as whether the commercial activity is more global, or local; whether a far-flung market can be shown to be similar to Maine’s; and whether fewer comparable properties and sales exist in proximity to the subject property

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 20 n.13

 

 

Adequacy or usefulness of cost (less depreciation) approach

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 10-12 (discussion

                   of costs to be added and deducted

          Waterville Homes, Inc. v. City of Waterville, Nos. 90-16 & 91-06,

                   at 5

Kamp Kohut, Ltd. v. Town of Oxford, No. 90-18, at 3 (not meaningful in

          absence of fully comparable sales)

          Searsport Realty Associates v. Town of Searsport, No. 91-89, at 1, 3

                   (said by taxpayer not to account for economic obsolescence;

said by town to be more appropriate with subsidized housing)

          Lincoln Realty Associates v. Town of Lincoln, No. 91-103, at 2-3

                   (same; held by Board to be best assessment method for new

                   buildings)

Dirigo Management Co. v. City of Bath, No. 92-34, at 2 (said by

town to be more appropriate with subsidized housing)

          IBM Credit Corp. v. City of Bath, Nos. 92-42 & 93-32, at 2-3

(computer equipment)

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

          at 8 (most appropriate for special purpose properties)

          Thayer Garden Associates v. City of Waterville, No. 92-99, at 1-2

                   (taxpayer argued cost approach does not consider economic

obsolescence)

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

                   with Landco Realty Co. v. City of Biddeford, No. 93-70,

at 3, 6-7 (same; and appropriate with net operating loss)

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 2 (taxpayer

asserted this approach results in a higher than market value, which must be adjusted downwards for economic

obsolescence)

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

                   at 2 (taxpayer asserted cost approach is inadequate with

                   federally subsidized housing)

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75

& 93-135, at 3 (parties agree this approach is the most appropriate), at 5-6 (no cost schedule can accommodate all possible types of special purpose buildings), at 6 (where actual costs are available, they can be used as a guideline)

          J & N Sanford Trust v. Town of Sanford, No. 93-82, at 2 (not used by

                   taxpayer because of large margin of error due to depreciation)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 6-7, 9, 11 (cost approach, which assertedly accounted for

irregularities in deductions for depreciation and functional obsolescence, was primarily used by assessor; criticized by taxpayer for miscalculating physical depreciation, not capitalizating of excess operating costs, failing to deduct economic obsolescence, and misapplying assessment ratio; Board found this approach preferred for assessing industrial property)

          Capitol Shopping Center v. City of Augusta, Nos. 94-29 & 95-164,

at 2 (rejected by appraiser because age of building made

depreciation difficult to determine)

          Knox Hotel Associates v. Town of Thomaston, No. 95-132, at 2-3

(taxpayer asserted cost approach not applicable to federally subsidized housing; Board found by its nonuse taxpayer failed to establish evidence of just value against which Board could compare town’s assessment)

          Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 4 (most

reliable as it does not fluctuate with market and is especially appropriate for relative new property)

          FLS Associates v. City of Augusta, No. 95-153, at 1 (taxpayer

rejected cost approach as invalid where cost of construction could not be sustained by market rents)

          AWD Management (Chiricahua, Inc.) v. City of Westbrook, No. 95-163,

                   at 2 (taxpayer rejected cost approach due to age of building)

          Spang Enterprises v. Town of Kennebunkport, No. 96-011, at 1-2

                   (rejected by taxpayer due to difficulty of estimating accrued

depreciation, who also criticized town for not concluding that economic obsolescence was relevant)

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 2 (not used

by taxpayer because too subjective, and argued city’s use of cost approach did not adequately consider physical depreciation and functional obsolescence)

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 10-12

                   (taxpayer developed credible value by both replacement cost

                   new, which takes into account functional obsolescence, and

reproduction cost new); at 12 (“Commonly, in a reproduction cost new less depreciation analysis, functional obsolescence is considered and deducted from reproduction cost new.  This is so . . . because generally, technology improves over time”)

          Port Resort Realty Corp. v. Town of Kennebunkport, No 98-004,

at 2, 3 (taxpayer asserted that since land value was nearly all total value, building had reached the end of its productive life, which Board rejected because hotel was still operational)

          B & B Properties v. City of Ellsworth, No. 98-026, at 9, 11 (only

approach used by city in making assessment; taxpayer attacked it as not supported by property’s actual income)

          Provost, Inc. v. Town of Windham, No. 98-029, at 2 (assessor’s

principal approach was reasonable)

Northeast Empire Ltd. Partnership #2 v. Town of Ashland, Nos.

99-015 & 99-027, at 6, 7, 8 (cost approach used by assessor’s assistant with deduction for economic obsolescence; appraiser placed little weight on cost approach, and even at that with no adequate explanation deducted economic obsolescence that was derived solely from income approach)

          Great  Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 24 (cost approach given greater weight than income approach, but appraiser incorrectly included two items in his analysis which must be excluded)

          UAH-Hydro v. Town of Winslow, 2001-009, at 19-21

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 11

(cost approach used by assessor); at 23 & n.14 (Bath Iron Works and Champion International decisions by Board did not hold that only the cost approach is appropriate in special use property cases)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 20, 22

(Board used cost approach on real property, as did assessor,                    although appraiser though it least satisfactory); at 27-28 (cost

                   approach requires consideration of square footage of building);                 at 30, 35-36 (assessor used only cost approach on personal                            property; appraiser of personal property used it centrally and               credibly)

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 8-10

(town’s witness depreciated property over too long a period, thus contributing to Board’s finding his conclusions unhelpful, whereas taxpayer’s witness’ shorter deprecation period which took into account income stream during that period contributed to his conclusions being credible)

          Woodland Kittery Ltd. Partnership v. Town of Kittery, No. 2006-008,

at 6 (neither cost nor sales approach is useful where recorded

                   restrictions and tax credits are not factored in)

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 15

                   (taxpayer’s appraiser determined cost approach resulted in

                   similar value as income approach that he relied on); at 17

                   (assessor used cost approach, and city’s appraiser arrived at

value similar to assessor, but appraiser did not rely heavily on cost approach); at 20 (cost approach failed to capture influence

on value of both rent restrictions, tax credits, subsidies for operational losses and payment for debt services; and fact it led to city’s appraiser to a conclusion substantially different from assessed value was further indication of unreliability)

          Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 27

(assessor used only cost approach); at 56 (more relevant where property is new, but less relevant where restriction on income is unrelated to costs; may overstate fair market value of subsidized housing and is generally inappropriate for such); at ­­­61 (while this was not necessarily error, the income approach is preferred for income producing property); at 62 (assessor used cost approach on older buildings without information on original costs)

Boralex Sherman, LLC v. Town of Stacyville, Nos. 2009-007 &

2010-002-A, at 9 (taxpayer’s appraiser used the cost approach

by applying a “comparative-unit method” and then took the

mean of income and sales approaches, and deducted that

amount as economic obsolescence, and then added value of the

land; cost approach given least weight)

Bangor Gas Co., LLC v. Town of Bucksport, No. 2010-002, at 4 (assessor

          relied only on cost approach, but considered cost information

          from taxpayer unreliable and so relied on MRS estimated cost of

          construction); at 6 (appraiser did not apply cost approach

          because it would have been circular simply to subtract income

          from cost and call the difference economic obsolescence); at 8

          (replacement cost new, less depreciation, is proper for special

          purpose property); at 8-9 (appraiser’s conclusion thus not

          persuasive or credible)

Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

of Smyrna, Nos. 2010-007 & 2010-006, at 7 (only practical approach to use)

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 18

                   (failure of taxpayer’s appraiser to apply cost approach fatal to

                   his opinion of value; Board found unpersuasive his statement

                   that replacement cost of improvements would be difficult to

                   estimate accurately; appraiser did not give both land and

                   building value)

         

 

Reproduction cost and replacement cost defined and compared

 

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 9, 11-12 (Board agreed with town’s assertion that replace-ment costs ordinarily would be lower than reproduction costs; and found taxpayer’s cost approach may have not eliminated deductions for functional obsolescence from replacement cost)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 25 (unclear whether taxpayer’s appraiser correctly took into account the entire length of dam); at 25-26 (appraiser also failed to include certain equipment and excluded two other pieces that the taxpayer’s other appraiser included)

          UAH-Hydro v. Town of Winslow, 2001-009, at 19 n.14

(reproduction cost new is the estimated cost to construct property that is similar in all respects to that being appraised; replacement cost is the estimated cost to construct property using modern materials and technology of equivalent utility to the property being appraised)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 19

                   (cost approach is premised on concept of substitution)

         

 

Reliance on actual construction costs in developing value is reasonable

 

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 6

 

 

No cost schedule can accommodate all possible types of special purpose buildings

 

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 5-6

 

 

Use of segregated cost methodology

 

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 6, 7 (classification of structure by occupancy and height as well as class is a matter of judgment)

 

 

Argument over appropriate depreciation

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 5-8

          Scientific Games, Inc. v. City of Lewiston, No. 88-04, at 3 (where

taxpayer does not provide sufficient information regarding

workings of equipment, municipality’s depreciation schedule prevails)

          Hardy, Wolf & Downing v. City of Lewiston, No. 92-06, at 2

          IBM Credit Corp. v. City of Bath, Nos. 92-42 & 93-32, at 2-3

(Board agrees city’s “straight line” depreciation for computer equipment inadequately recognizes continual rapid advance in technology, but rejects taxpayer’s claim in part as not recognizing income it derives from leasing of equipment)

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

                   at 10 (BIW personalty; declining balance methodology)

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 2 (primary

difference in parties’ use of cost approach was over deprecia-tion)

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 7-8 (Board found city’s 50-year life expectancy for building reasonable)

          J & N Sanford Trust v. Town of Sanford, No. 93-82, at 2

(unfavorable leases, opening of competitive store, generally depressed economic conditions)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 7, 13

          Presque Isle Investors v. City of Presque Isle, No. 94-03, at 3 (city

maintained taxpayer’s expert’s evidence was only speculative)

          B & B Properties v. City of Ellsworth, No. 98-026, at 9 (taxpayer

          asserted city did not adequately consider this)

Provost, Inc. v. Town of Windham, No. 98-029, at 2 (assessor depre-

ciated property 45%: 10% for physical, 25% for functional, and 10% for vacancies)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 26 (70% depreciation unreasonable when that would,

in essence, mean dams are unsafe)

U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 28-29

          (appraiser of real property used too high a depreciation rate);

          at 33 (appraiser of personal property properly used a higher depreciation rate than assessor had used)

Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 8-10

(Board agrees plant should be depreciated over 50, not 100, years; town expert’s failure to consider replacement and structural repairs leads to his conclusions being unhelpful)

 

 

Use of IRS depreciation schedules

 

          Hardy, Wolf & Downing v. City of Lewiston, No. 92-06, at 3 (not

normally used for personal property values for property

tax purposes as they are not intended to determine “just value”)

 

 

Functional or physical obsolescence  

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 7, 9, 12 (the loss

                   in value due to inability of a structure or equipment to perform

adequately its function; illegality of agreement between taxpayer and city of annual 5% discount rate)

          Danny’s, Inc. v. Town of Old Orchard Beach, No. 91-38, at 4-5

          IBM Credit Corp. v. City of Bath, Nos. 92-42 & 93-32, at 2-3

(Board agrees city’s “straight line” depreciation for computer equipment inadequately recognizes continual rapid advance in technology, but rejects taxpayer’s claim in part as not recognizing income it derives from leasing of equipment)

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

at 9 (BIW buildings and site improvements)

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75

& 93-135, at 7 (functional obsolescence irrelevant where it depends on speculative economic obsolescence)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 7-8 & n.5, 13 (said to be a “hard” number that should be

subtracted from cost approach value before subtracting percent figures such as economic obsolescence)

          Unitrode Corp. v. City of Westbrook, No. 93-116, passim (due to

physical deterioration, specialized interior configuration, location on a former land fill, and presence of extensive soil contamination)

          Maine Public Service Co. v. City of Caribou, No. 97-108, at 12 (“the

                   application of depreciation, in and of itself, incorporates

 consideration of functional obsolescence”)

          B & B Properties v. City of Ellsworth, No. 98-026, at 9, 11 (none

existed except as reflected by vacancies)

          Provost, Inc. v. Town of Windham, No. 98-029, at 2 (calculated

reasonably)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 23-24 (long-term observation of machinery and equipment gives credibility to obsolescence analysis; reference to marketplace to establish replacement costs comparable to physical and economic depreciation are a credible measure of value of machinery and equipment)

U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 19

(where “clean room” was no longer necessary, assessor overvalued property); at 24 (appraiser improperly applied higher rate of depreciation than did assessor)

 

 

Economic obsolescence

 

          Waterville Homes, Inc. v. City of Waterville, Nos. 90-16 & 91-06,

at 2 (partial occupancy, lack of access, lack of public sewer)

          Searsport Realty Associates v. Town of Searsport, No. 91-89, at 2

          Lincoln Realty Associates v. Town of Lincoln, No. 91-103, at 3        

                   (determined by examining vacancy rates and inspecting for

physical depreciation)

          IBM Credit Corp. v. City of Bath, Nos. 92-42 & 93-32 at 2-3

(Board agrees city’s “straight line” depreciation for computer equipment inadequately recognizes continual rapid advance in technology, but rejects taxpayer’s claim in part as not recognizing income it derives from leasing of equipment)

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 3-4

(depreciation of building due to economic development elsewhere in city)

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75

& 93-135, at 7 (presently speculative)

          Champion International Corp. v. Town of Bucksport, No. 93-98,

at 7-8 & n.5, 13 (taxpayer applied an economic obsolescence

rate after subtracting depreciation and before subtracting

functional obsolescence from its cost approach value)

Presque Isle Investors v. City of Presque Isle, No. 94-03, at 3

(depreciation of building due to economic development elsewhere in city)

          B & B Properties v. City of Ellsworth, No. 98-026, at 9 (downturn in

market generally and crisis in credit left commercial real estate less attractive, although assessor testified to rapid growth of area)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 21, 22-23 (town’s appraiser improperly did not include economic obsolescence in determining net value of machinery and equipment; determination of economic obsolescence is based on subjective judgment of appraiser); at 23 n.23 (deduction for economic obsolescence is indicated if income approach yields a lower value than cost approach); at 24 n.24 (income approach is relevant to calculation of economic obsolescence that appraiser applied to cost approach)

UAH-Hydro v. Town of Winslow, 2001-009, at 19 (appraiser’s

determination of substantial economic obsolescence is not supported); at 20 (appraiser’s reliance on market data on supply of electricity that was flawed in several respects, including lack of evidentiary support showing how closure of power plants was analyzed, makes appraiser’s conclusions not credible); at 21 (Board questioned whether model used by appraiser was appropriate when report on deregulation did not support use of replacement cost method of valuation and economies of scale do not necessarily apply to smaller facility at issue)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 30-31                     (significant depreciation proper where equipment was                              outmoded due to decline in industry and cheaper, faster,                              and better equipment had become available)

 

 

The Board declines to consider salvage value of new equipment with state-of-the-art, one-of-a-kind equipment

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 11

 

 

Indirect costs (insurance, interest and fees on construction loans, taxes, overhead, profit) should be included when valuing a construction project by cost approach, thus adding to cost of project

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 8, 11

 

 

Reduction of total cost by deducting non-value added costs

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 10

 

 

Discussion of proper methodology where property contains mixed uses

 

          McDonald’s Corp. v. Town of Freeport, No. 89-17, at 3-6 (office

space and restaurant)

 

 

The Board is not required to accept an assessment that is inadequately explained or based on outdated or poorly substantiated methods

 

          B & B Properties v. City of Ellsworth, No. 98-026, at 7

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 21-23

          UAH-Hydro v. Town of Winslow, 2001-009, at 17-21

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 32

(assessor testified that he had no idea what the personal property he assessed is worth)

 

 

Weight to be given appraisal reports prepared for purposes other than property taxation

 

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

with Landco Realty Co. v. City of Biddeford, No. 93-70, at 6

(assessment commissioned by lender and financial manage-

ment group)

          Alpine Realty Trust v. City of Biddeford, No. 93-72, at 2 (one                              appraisal prepared after assessment date; another prepared                           for bank on unreliable financial data)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 8 n.4

(appraisal done for other than abatement purposes not given weight by Board)

 

 

The Board will not give weight to appraisal reports prepared some years before tax year in question

 

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 8 n.4

 

 

Although appraiser did not offer a formal opinion of value for one of two years in issue, Board can apply to the first year his opinion for the second year where appraiser testified that nothing he learned of the first year was different from the second year

 

          City of Brewer v. Ellen M. Leach Memorial Home & Ellen M. Leach

                   Memorial Home v. City of Brewer, Nos. 2006-012 & -013, at 24

 

 

Failure of expert to account for all aspects of the property he was appraising

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 10

 

 

Assessor cannot avoid double-taxing by excluding other includable property

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 32

 

 

Taxpayer’s submission of one part of town’s zoning ordinance was inadequate to overcome presumption of validity to assessment

 

          McDonald’s Corp. v. Town of Freeport, No. 89-17, at 5-6

 

 

Mischaracterization of property

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 9-10

                   (anchor store at Maine Mall is not an average community

shopping center)

 

 

Argument over valuation of land on which commercial property is located

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 8-9

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

          at 6-9

 

 

When assessed value was related to possible expansion, for which town permit has lapsed, assessment must be reduced

 

          Port Resort Realty Corp. v. Town of Kennebunkport, No 98-004, at 3

 

 

Vacancies

 

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

with Landco Realty Co. v. City of Biddeford, No. 93-70, at 5

(city maintained it cannot revise assessments annually to account for changing vacancy rates)

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 2, 3-4

                   (vacancies contributed to overvaluation)

          Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 4 (vacancies

                   had decreased for year in issue compared to previous years)

          Presque Isle Investors v. City of Presque Isle, No. 94-03, at 2, 3

                   (same as Poorvu Family Trust)

          Capitol Shopping Center v. City of Augusta, Nos. 94-29 & 95-164,

                   at 1-2, 3 (failure to renew lease reduced value)

Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 2-3 (dispute

over whether city considered downward trend of rental market)

          B & B Properties v. City of Ellsworth, No. 98-026, at 8-9

          Provost, Inc. v. Town of Windham, No. 98-029, at 2 (given that

actual vacancy was 6%, using 10% to calculate depreciation was reasonable)

 

 

Effect of easement across property

 

          Capitol Shopping Center v. City of Augusta, Nos. 94-29 & 95-164,

at 3 (reduced value where assessor was unaware of it)

          Kennebunkport Inn, Inc. v. Town of Kennebunkport, No. 94-43, at 3

          Brackett v. Town of Bristol, Nos. 2007-010 & -011, at 13-14 (right of

                   way across adjoining property does not burden subject

property; right of way now owned by owners of subject property does not burden subject property)

 

 

Annual discount rate agreed upon by city and taxpayer is illegal and non-binding

 

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 12

 

 

Certified ratio analysis of assessed values

         

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 12-13 (must be

          used across the board)

Toussaint v. City of Lewiston, Nos. 93-06–93-11, at 6 (methodology

employed by assessor, and by Bureau of Taxation, eliminates highest and lowest values)

Champion International Corp. v. Town of Bucksport, No. 93-98,

at 17-18 (whether town’s 100% ratio or formula developed in another case were used, results were within 5%)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 14 n.10

                   (taxpayer abandoned argument that fair market value should

                   be adjusted according to town’s assessment ratio)

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 8 (taxpayer

                   failed to meet its burden to establish the relevant assessment

                   ratio that it intends to contest)

 

         

Applicability of 36 M.R.S. § 848-A, providing a defense to municipal assessments if made within reasonable limits of practicality, unless there

is a proven deviation of 10% or more from the assessment ratio of the municipality

 

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 2

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

at 4

          Guy Gannett Publishing Co. v. City of South Portland, Nos. 93-75 &

93-135, at 8 (10% rule supports finding in favor of city’s appraisal)

          Toussaint v. City of Lewiston, Nos. 95-143–95-146, at 4 (applicable

to income approach in this case)

          See Keene v. City of Auburn, No. 98-023, at 4-5 (farmland case;

difference of 10% or less is insufficient to prove overvaluation)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 5 n.5 (statute applies only in discrimination cases)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 35

(regardless of section 848-A, assessor is prohibited by art. IX,

§ 8 from assessing property that she admitted should have been reduced or not included)

          Gray v. Town of Sedgwick, No. 2005-005, at 10 (assessor cannot

assess property that he admitted should have been reduced by a certain amount to arrive at fair market value)

          Cushing Holdings, LLC v. Town of Cushing and Last Resort Holdings,

                   LLC v. Town of Cushing, Nos. 2006-017 & -018, at 4 (taxpayer

                   must prove ratio applied deviated more than 10% from relevant

                   assessment ratio applied to all other properties); at 6-7 (taxpayer

                   asserted, based on MLS data, that town over-assessed properties,

                   was inferior to town’s reliance on transfer tax declaration)

 

 

Certified assessment ratio is a statistical concept not well anchored in reality when not based on an adequate number of recent comparable sales, at which point it becomes simply the middle number in a wide range

 

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 3

 

 

Adjustment in valuation to account for computation error

 

          Alstores Realty Corp. v. City of South Portland, No. 87-03, at 11

          A-R Cable Services – Me., Inc. v. City of Lewiston, No. 91-37, at 6

                   (city included value of personalty twice in developing assess-

ment)

Bath Iron Works Corp. v. City of Bath, Nos. 92-43, 92-102 & 93-14,

at 10-11 (city assessor acknowledged error)

 

 

Assessor’s use of computer-generated appraisal systems

 

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 28

                   (criticism of use of such a system is only impeachment of                          assessment)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 22 n.16

                   (use of such a system is not itself problematic)   

          Harold MacQuinn, Inc. v. Town of Hancock, No. 2009-014, at 4, 22

                   (typically used for mass revaluations; taxpayer’s criticism of

                   such use normally can amount to no more than impeachment

 of the assessment)       

 

 

Witness’ merely checking an unnamed internet site does not lend credibility to his methodology

 

          Topsham Hydro Partners v. Town of Topsham, No. 2003-007, at 7

 

 

Reliance on Property Tax Bulletin #10

 

          Sawyer Environmental Recovery Facility v. Town of Hampden,

No. 93-34, at 4

          Wells Industrial Development Corp. v. Town of Wells, No. 93-67,

                   at 2, 3-4 (sending property tax bulletin does not meet

statutory requirement that taxpayer be notified of its appeal rights, 36 M.R.S. § 842)

 

 

Use of Maine Assessment Manual

 

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 3

          Capitol Shopping Center v. City of Augusta, Nos. 94-29 & 95-164,

at 2

 

 

Use of market publications

 

          IBM Credit Corp. v. City of Bath, Nos. 92-42 & 93-32, at 4-5

                   (Computer Price Watch re depreciation of computers)

 

 

Use of Marshall & Swift Valuation Service Manual

 

Alstores Realty Corp. v. City of South Portland, No. 87-03, at 10-11

(misapplication of tables and charts in developing        replacement costs)

          S. D. Warren Co. v. City of Westbrook, No. 90-11, at 9, 12 (Board

does not use for determining discount factor)

          Waterville Homes, Inc. v. City of Waterville, Nos. 90-16 & 91-06,

                   at 3 (used to determine replacement costs)

          Lincoln Realty Associates v. Town of Lincoln, No. 91-103, at 3

                   (used to determine reproduction cost and appreciable

depreciation)

          Wesson v. Town of Bremen, Nos. 92-04 & 92-66, at 3, 4 (Decision I)

(depreciation)

          City of Biddeford v. Landco Realty, Inc., No. 92-104, consolidated

with Landco Realty Co. v. City of Biddeford, No. 93-70, at 4

(land value and cost schedules)

          Poorvu Family Trust v. City of Presque Isle, No. 93-04, at 2

          Rankin Center Associates v. City of Rockland, Nos. 93-18 & 93-97,

                   at 4-5 (Board held cost approach inadequate when based on

construction costs in manual, rather than actual costs, and when manual accounts only for original construction rather than improvements)

Knox Hotel Associates v. Town of Thomaston, No. 95-132, at 2-3

(Board rejected taxpayer’s claim that values were inappropriate or impeaching of town’s assessment)

          KPMG Peat Marwick v. City of Lewiston, No. 96-047, at 3 (assessor

used this for cost approach)

          Great Northern Paper, Inc. v. Town of East Millinocket, No. 2000-006,

at 21-22 (Marshall & Swift does not develop trend factors for valuing specific machinery and equipment)

          Sprague Energy Corp. v. Town of Bucksport, No. 2003-003, at 11

(assessor relied on Marshall Valuation Service depreciation tables)

          U. S. Optical Disc, Inc. v. Town of Sanford, No. 2003-004, at 25                          (assessor used Marshall & Swift only as a check on replace-                           ment cost, but in testimony offered too high a classification                            of building); at 28-29 (Board relied on Marshall & Swift cost                        tables)

          MHC Narrows Too, LLC v. Town of Trenton, No. 2012-013, at 9

(Taxpayer’s appraiser opined that improvements to campground were too complex to estimate cost, but town professed to have relied on Marshall & Swift)

 
 
Reliance on the Uniform Standards of Professional Appraisal Practice (USPAP)

 

GGP-Maine Mall, LLC v. City of South Portland, No. 2008-001 (Maine
Mall I), at 11, 12 (requirement of testing valuation by reference
to sales of property within three years of valuation date, in order to understand what is being purchased and under what circumstances)

 

Falls Development Associates, L.P. v. City of Saco, No. 2008-025, at 32
          (USPAP requires financing to be treated as an intangible)
 
 

IV.  Exemptions From Taxation

 

History, theory, and criticisms of property tax exemptions

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 28-33

         

 

Maine constitution does not provide for exemptions, and they are not constitutionally-based

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 30

 

 

Absent legislative exemption, all Maine real estate is taxable

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 33

 

 

Exemptions are legislative policy choices the Board must respect

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 37

 

 

Exemption cases are abatement cases over which the Board has jurisdiction

 

New Marblehead North Housing Corp. v. Taylor, No. 90-10, at 1-2

The Salvation Army v. City of Lewiston, No. 95-119, at 2

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

          & 2010-016, at 2 n.2 (an exemption is nothing more than a

         total abatement)

 

 

A request for tax exempt status is not itself an application for abatement, which can be made only after the city’s denial of the request

 

          The Salvation Army v. City of Lewiston, No. 95-119, at 2

 

 

What is necessary to file an application for exemption: the interplay of 36 M.R.S. § 652(1)(C)(4) and section 652, last

 

            Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 55-66

 

 

Taxation is the rule and exemption the exception; and all doubts are weighed against exemption and exemptions are construed strictly

 

          Great Cove Boat Club, Inc. v. Town of Eliot, Nos. 91-01 & 91-21,

                   at 7

          Big Lake Camp Meeting Ass’n v. Bureau of Taxation, No. 95-013, at 2-3

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 33-34, 36, 62

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 3

 

 

Exemptions should be strictly construed because they conflict with the universal obligation of all to contribute a just proportion toward the public burden

 

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 3

 

 

All doubts and uncertainties as to the meaning of a statute are to be weighed against exemption

 

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 3

 

 

Two views: (1) exemptions are not to be extended to situations not clearly coming within the scope of the statutory provisions vs. (2) this does not require the narrowest reading possible; strict construction still must be reasonable

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 36

 

 

Taxpayer’s burden to prove it qualifies for exemption

 

          Given v. City of Lewiston, No. 92-103, at 2 (personal property

exemption: preponderance of the evidence)

          Big Lake Camp Meeting Ass’n v. Bureau of Taxation, No. 95-013, at 2, 3

          The Salvation Army v. City of Lewiston, No. 96-031, at 2

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 35-36, 59 n.24 (Law Court has stated one’s burden of qualifying for an exemption in two different ways: (1) come unmistakably within the exemption and (2) fair preponderance

of the evidence)

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 3

 

 

Application for exemption must be filed by April 1st of tax year in which classification is sought, 36 M.R.S. § 652, last

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 44, 56

 

 

Once an exemption is granted, it remains in effect until the assessor has evidence to disqualify it, 36 M.R.S. § 652, last

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 44-45, 64

 

 

Subsequent purchase of property by tax exempt entity does not permit rebate of taxes for period of time that that entity owned property

 

Finance Authority of Maine v. City of Caribou, No. 90-36, at 2

 

 

Tax exemptions cannot be prorated for a part of a year

 

          New Marblehead North Housing Corp. v. Taylor, No. 90-10, at 6

 

 

Property under construction on April 1st is eligible for exemption

 

          New Marblehead North Housing Corp. v. Taylor, No. 90-10, at 5-7

 

 

Relevant question is whether the property is devoted to the purposes of the owner-institution, not actual, physical use, as of April 1st

 

          New Marblehead North Housing Corp. v. Taylor, No. 90-10, at 6-7

 

 

Public property, 36 M.R.S. § 651, is presumptively exempt from property taxation, so taxation of it is generally disfavored

 

          Town of Standish v. State of Maine, Bureau of Revenue Services,

No. 99-031, at 3 n.2

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 30-31

 

 

A benevolent and charitable corporation is one organized and conducted exclusively for such purposes, 36 M.R.S. § 652 (1)(C)(1)

 

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

                   93-24, at 7

          Big Lake Camp Meeting Ass’n v. Bureau of Taxation, No. 95-013, at 3

         

 

Benevolent and charitable are synonymous terms

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 42

 

 

Definitions of these terms

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 42-43

 

 

For an activity to be benevolent and charitable it must be for the benefit of an indefinite number of persons, either by bringing the minds and hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government

         

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 43

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 4

 

 

To be a benevolent and charitable corporation it must exist exclusively and purely for such purposes

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 42

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 4

 

 

This is primarily a question of law

 

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 4

 

 

If the Board determines that property is not organized and conducted exclusively for benevolent and charitable purposes, no further analysis is needed

 

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

& 2010-016, at 4-5 (Board finds trust did not qualify for exempt status because, under its articles of incorporation, its activities were not restricted solely to benevolent and charitable purposes)

 

 

Synthesis from Maine cases on what factors determine whether a corpora-tion is benevolent and charitable

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 71-72

 

 

Land conservation is not thought to constitute a benevolent and charitable use

 

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

& 2010-016, at 7

 

 

Application of factors to modern health care facilities

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 72-78

 

 

36 M.R.S. § 652(1)(A) requires an entity to be incorporated in Maine

 

          The Salvation Army v. City of Lewiston, No. 91-29 (Case I), at 3

          The Salvation Army v. City of Lewiston, No. 96-031, at 3 (Board

notes contrary holding of Superior Court)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 41

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 4

 

 

Real and personal property owned by benevolent and charitable corpora-tions that is used and occupied by such corporations for their own pur-poses are exempt, 36 M.R.S. § 652(1)(A)

 

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

                   93-24, at 7

          The Salvation Army v. City of Lewiston, No. 96-031, at 3 (thrift

store)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 40

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 4

 

 

This is primarily a question of fact

 

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 4

 

 

36 M.R.S. § 652(1)(C) adds further requirements to subsections (1)(A) and (1)(B)

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 43-44 & n.18

 

 

Exemption as a scientific institution, 36 M.R.S. § 652(1)(B)

 

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 7 (claim based on educational activities found to

                   be only incidental to trust’s main objective of preserving natural

                   resources)

 

 

36 M.R.S. § 652(1)(C)(1) requires that an entity be organized exclusively for benevolent and charitable purposes, and being a religious organization is not necessarily that

 

          The Salvation Army v. City of Lewiston, No. 91-29 (Case I), at 3-4

          Big Lake Camp Meeting Ass’n v. Bureau of Taxation, No. 95-013, at 3

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 29-30 (exemption for religious institutions is not a matter of right, but such institutions may qualify for exemptions otherwise established)

 

 

Certain properties of religious sects and denominations are exempt, 36

M.R.S. § 652(1)(G)

 

          Big Lake Camp Meeting Ass’n v. Bureau of Taxation, No. 95-013, at 2

                   (religious tabernacle)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 30

 

 

Property owned by a benevolent and charitable corporation that is occupied and used by another benevolent and charitable corporation is exempt, 36 M.R.S. § 652(1)(J)

 

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

                   93-24, at 7-8

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 40

 

 

Under 36 M.R.S. §§ (1)(A) and (1)(J) a taxpayer need not be tax exempt under IRS Code § 501(c)(3), but it must be a nonprofit and only non-profits can qualify for section 501(c)(3) status

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 41

 

 

Property leased by non-profit hospitals, etc. are tax exempt, 36 M.R.S. § 652(1)(K)

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 40-41

 

 

Other health related entities may qualify for exemptions as benevolent and charitable corporations or as scientific and literary institutions

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 31

 

 

Leasing under 36 M.R.S. § 562 (1)(K) does not require a written lease unless this would violate another provision of Maine law

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 52-54

 

 

36 M.R.S. § 652(1)(K) does require section 501(c)(3) status

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 41

 

 

36 M.R.S. § 652, last , articulates procedures required to apply for exemptions and is applicable to section 652 in its entirety

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 44

 

 

36 M.R.S. § 652, last , requires, among other things, a new owner of property to reapply for tax exemption

 

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 94-16,

94-17, 95-147, 95-148, 96-33–96-35, at 2

 

 

The test for qualifying for exemption is (1) ownership and (2) either occupancy or use

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 41

 

 

Sole use doctrine: if a benevolent and charitable corporation owns property that is in any way occupied or used for purposes inconsistent with the corporation, none of the property may qualify for exemption

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 2, 47-50

 

 

Partial exemptions: under former statutes, property is exempt to the extent that it is used consistent with purposes of a tax exempt entity, but not otherwise

 

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

93-24, at 8-9 (N. B.: this approach was rejected by the Law Court)

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 45-47, 49-50

 

 

Partial exemptions still exist under 36 M.R.S. § 652(1)(G) and (H)

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 47 n.20

 

 

Incidental use: use of property that, strictly speaking, may be inconsis-tent with the purposes of the tax exempt entity but are intimately tied to its successful operation

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 48-50 (may be occasional use of all the property or part of the property more regularly; some economic benefit does not detract from incidental use)

 

 

Whether property is used exclusively for benevolent and charitable purposes

 

          The Salvation Army v. City of Lewiston, No. 91-29 (Case II), at 3

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

                   93-24, at 7-8

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 94-16,

94-17, 95-147, 95-148, 96-33–96-35, at 2 (no change in use since Law Court decision)

 

 

Exclusive use requirement, 36 M.R.S. § 652(1), is satisfied so long as any contrary use of the property is incidental to dominant purpose of the benevolent and charitable corporation and any income is not motivated by profit but by providing services consistent with the corporation’s purpose

 

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

                   93-24, at 8

 

 

A non-profit corporation that operates federally subsidized housing for low- income and disabled elderly persons is a benevolent and charitable institution

 

          Marcotte Congregate Housing, Inc. v. City of Lewiston, Nos. 93-23 &

                   93-24, at 8

 

 

Pretense to avoid taxation—where the taxpayer conducts itself quite inconsistently with what it professes—will deny qualification for exemption, but otherwise motive to obtain exemption is permissible

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 36-37, 68-69

 

 

Stock-in-trade, 36 M.R.S. § 655(1)(B)

 

          Given v. City of Lewiston, No. 92-103, at 2-3 (videotapes for sale,

either wholesale or retail, are stock-in-trade and therefore

exempt)

 

 

36 M.R.S. § 652(1) does not contain an appeal procedure

 

          The Salvation Army v. City of Lewiston, No. 95-119, at 2

 

 

Reliance on Property Tax Bulletin #5

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 6

 

 

Interplay of Maine Condominium Act, 33 M.R.S. §§ 1601-101–1601-118

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 37-40, 69-71 (each condominium is separately owned and

so must be taxed separately)

 

 

For a condominium unit to be exempt it must be determined if it is owned by a tax exempt entity

 

          Gregory v. MMC Realty Corp. & Maine Medical Center, No. 2000-001,

at 2


V.  Classified Properties

 

Tree Growth Tax Law

 

Constitutional authority to provide for assessment of timberlands and woodlands based on current use, Me. Const. art. IX, § 8, cl. 2

 

          Blanch v. Town of Lubec, No. 96-048, at 2

 

 

Enactment of the Tree Growth Tax Law, 1971

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

          Services, Nos. 2009-020 & -021, at 1

 

 

Purpose of the Tree Growth Tax Law, 36 M.R.S. § 572; see also § 563

 

          Blanch v. Town of Lubec, No. 96-048, at 2

          Pachowsky v. Town of Clinton, No. 2001-005, at 3

          Key Bank National Ass’n v. Town of Phippsburg, No. 2006-002,

                   at 6-7

          McClure v. Town of Lubec, No. 2010-013, at 5

 

 

State Tax Assessor, through the Property Tax Division of Maine Revenue Services, administers assessment and taxation of tree growth in the unorganized territory

 

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

Services, Nos. 2009-020 & -021, at 2, 5

 

 

Tree Growth Tax Law is to be liberally construed, 36 M.R.S. § 584-A

 

          Page v. Town of Damariscotta, No. 99-014, at 7 n.5 (but this does

not mean facts can be forced to fit the law)

          Pachowsky v. Town of Clinton, No. 2001-005, at 3, 9 (but this does

not overcome plain language of specific statute in tree growth law)

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 18

(Board thus should construe evidence to support tree growth classification where possible)

          Pierce v. Maine Revenue Services, No. 2006-007, at 8 (but this does

                    not excuse filing either statement required by section 574-                     B(3))

          McClure v. Town of Lubec, No. 2010-013, at 5 (consider also section

                   572)

 

 

Definitions under statute, principally 36 M.R.S. § 573

 

          Blanch v. Town of Lubec, No. 96-048, at 2 (“forest land,” 36 M.R.S. §

                   573(3), requires current use as presently forested; “forest plan,”

                   section 573(3-A), includes reference to “a standing crop of

                   timber”; this is consistent with a dictionary definition of “forest”)

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 5

(“forest land,” section 573(3))

          Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

                   Services, Nos. 2009-020 & -021, at 11 (“tax” includes penalties

                   and interest)

 

 

Tree growth cases are abatement cases, 36 M.R.S. § 583, subject to 36 M.R.S. § 841

 

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005, at 13

          Fowler v. Town of Lubec, 2004-002, at 2

          Zorn v. Town of Lubec, No. 2004-007, at 2

          Gray v. Town of Sedgwick, No. 2005-005, at 2

          KeyBank National Assn. v. Town of Phippsburg, No. 2006-002, at 7

          Campbell v. Town of Brownville, No. 2006-003, at 3

          Kendall v. Town of Perry, No. 2008-004, at 1

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016, at 8

                   (this includes abatement of withdrawal penalties)

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 2

          Bayroot, LLC v. Highland Plantation, Nos. 2009-004, -005 & -033,

                   at 2

          Brown v. Town of Bucksport, No. 2009-031, at 2 (order on motion to

dismiss); at 15 (Board decision; this includes abatement of withdrawal penalties)

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 1

          Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

 of Smyrna, Nos. 2010-007 & 2010-006, at 2

Smith v. Town of Livermore Falls, No. 2010-008, at 3-4, 5 (order on

jurisdiction)

          Cyr Family Ltd. Partnership v. Town of Wade, No. 2011-010, at 1

 

 

A party must affirmatively demonstrate that the Board has jurisdiction

 

          Smith v. Town of Livermore Falls, No. 2010-008, at 6 (order on

                   jurisdiction)

Hunt, Trustee, Hunt Family Irrevocable Trust v. Maine Revenue

          Services, Nos. 2009-020 & -021, at 8 (where petition for

          assessment review, response, and information sheets do

no so demonstrate)

 

 

The Board has no jurisdiction to classify land as tree growth when the taxpayer had not sought that classification in application for abatement

 

          Page v. Town of Damariscotta, No. 99-014, at 6-7

 

         

The Board has no authority to entertain a substantive constitutional challenge to the Tree Growth Tax Law

 

          Fowler v. Town of Lubec, No. 2004-002, at 4 (cannot address

                   taxpayer’s assertions that he was treated unfairly and that the

                   statute does not provide due process for a claimed taking of his                property, but notes that taxpayer availed himself of all                                    statutory process available and that penalty for withdrawal                           is not a taking)

          McLaughlin v. Town of Dexter, No. 2010-001, at 10-11

          McClure v. Town of Lubec, No. 2010-013, at 5

          Ocean State Job Lot of Belfast, LLC v. City of Belfast, No. 2011-022-A,

                   at 9 n.10 (order on motion to dismiss)

 

 

To qualify for tree growth, land must be currently forested

 

          Blanch v. Town of Lubec, No. 96-048, at 3

 

 

To qualify for tree growth, trees must be subject to harvesting for commercial use

 

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 8-9

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

& 2010-016, at 6 (where forested land may be harvested for commercial use, it cannot for this reason alone qualify for a

benevolent and charitable exemption)

 

 

Where tree growth land is subjected to a conservation easement prior to 1982, the tree growth need not be commercially harvested, 36 M.R.S. § 573(3)(C)

 

          Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016,

at 1 n.1

 

 

Tax advantage for tree growth property is that it is taxed according to its current use, not fair market value

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016, at 8

 

 

Valuation of tree growth annually by Maine Revenue Services based on data collected by Bureau of Forestry

 

          Brown v. Town of Bucksport, No. 2009-031, at 13

          Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016, at 5

 

 

The Board has no authority to alter tree growth values, which are based on statute, 36 M.R.S. §§ 576, 577, with reference to prices of standing timber of the relevant forest type in a given area during the previous calendar year and, by MRS Reg. 08-125 (4)(B)(1), on 100% of per acre values determined by State Tax Assessor

 

          Town of Shirley v. Maine Revenue Services, No. 2002-016, at 2-3

Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016, at 5

 

 

Failure of town to apply tree growth tax rates properly

         

Filaroska v. Town of Vienna, No. 90-44, at 3

         

 

Certified ratio analysis of assessed values, 36 M.R.S. § 578, explained or described

 

          Town of Shirley v. Maine Revenue Services, No. 2002-016, at 2

          Bayroot, LLC v. Highland Plantation, Nos. 2009-004, -005 & -033,

at 1-2 (Board did not reach question whether failure to adjust current use value of property by the appropriate ratio under

section 578 is an illegality unrelated to valuation)

Haggard v. Town of Swan’s Island, No. 2010-012, at 3 n.5

 

 

Valuing tree growth, and nontree growth area within tree growth parcel, 36 M.R.S. §§ 576, 576-A, 576-B, 577

 

          Sayer v. Town of Canton, No. 99-022, at 5-6, 7 (farmland and open

space law implicated tree growth where farmland includes woodlands)

          Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

of Smyrna, Nos. 2010-007 & 2010-006, at 2 (areas other than forest land within tree growth are to be valued at fair market value pursuant to section 576-A); at 3-8 (discussion using cost approach)

 

 

It is the taxpayer’s responsibility to obtain information and do what is necessary to maintain his property in tree growth if that is his desire

 

          Everett v. Town of Waterford, No. 93-136, at 2

Richmond v. Town of Moscow, No. 2004-004, at 3 (landowner’s

          dispute over acreage does not excuse failure to file timely      application for tree growth)

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002,

                   at 14 & n.8

          Pierce v. Maine Revenue Services, No. 2006-007, at 4

 

 

Application for tree growth requires unanimous consent of all owners,

36 M.R.S. § 574-B

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002,

at 7, 15

 

 

Assessors need not search out all joint owners for assurance of their consent

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 16

         

 

Application need not be signed by all co-owners

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 16

 

 

Whether application needs to list all owners

 

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 6

                   (issue waived)

 

 

Taxpayer need not be given an opportunity to amend a deficient application for classification, 36 M.R.S. § 579

 

          See Greenleaf Cove Ass’n v. Town of Westport Island, No. 2012-009, at

                   23 n.10

 

 

Acts of owner may be taken by an agent, which bind the owner, 36 M.R. S. § 579(8th ¶)

 

KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 19

          Brown v. Town of Bucksport, No. 2009-031, at 7 n.5

 

 

Assessment is presumed correct, and burden is on taxpayer to show that the assessor is manifestly wrong

 

          Davis v. Town of Lamoine, No. 2002-003, at 5 (withdrawal penalty)

          Fowler v. Town of Lubec, 2004-002, at 2 (same)

          Richmond v. Town of Moscow, No. 2004-004, at 3 (same)

          Zorn v. Town of Lubec, No. 2004-007, at 3(same)

          Gray v. Town of Sedgwick, No. 2005-005, at 2

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 17;

                   at 16-18 (burden of showing assessor’s classification decision

was manifestly wrong can be placed on taxpayer as the party in the best position to adduce evidence of owners’ intent)

          Pierce v. Maine Revenue Services, No. 2006-007, at 10 (withdrawal

                   penalty)

Kendall v. Town of Perry, No. 2008-004, at 2, 3 (location and

dimension of areas of buildings within tree growth, and assessment of those areas, also presumed correct)

          Davis v. Town of Lamoine and Maine Coast Baptist Church v. Town of

                   Lamoine, Nos. 2009-001 & -002, at 4

          Brown v. Town of Bucksport, No. 2009-031, at 15; at 19 (withdrawal

                   penalty)

          Prentiss & Carlisle Management Co., Inc. v. Town of Merrill and Town

                   of Smyrna, Nos. 2010-007 & 2010-006, at 2

 

 

In absence of contrary information, municipality’s assessment prevails

 

          Hornberger v. Town of Bremen, No. 86-02, at 4

 

 

Penalties assessed for withdrawal of land from tree growth are presumed correct, and assessor must be shown to be manifestly wrong

 

          Davis v. Town of Lamoine, No. 2002-003, at 5

          Fowler v. Town of Lubec, 2004-002, at 2

          Richmond v. Town of Moscow, No. 2004-004, at 3

          Zorn v. Town of Lubec, No. 2004-007, at 3

          Pierce v. Maine Revenue Services, No. 2006-007, at 10

          Brown v. Town of Bucksport, No. 2009-031, at 19

 

 

Landowner cannot establish assessment is manifestly wrong in the absence of evidence that withdrawal penalty is excessive

 

          Zorn v. Town of Lubec, No. 2004-007, at 4

          Pierce v. Maine Revenue Services, No. 2006-007, at 10 (no flaw in                       methodology of calculating withdrawal penalty)

          Brown v. Town of Bucksport, No. 2009-031, at 19

 

 

Application need not be made on prepared form sent by municipality

 

          Davis v. Town of Lamoine and Maine Coast Baptist Church v. Town of

                   Lamoine, Nos. 2009-001 & -002, at 5

 

 

Application—the “schedule”—must show location of each forest type, 36 M.R.S. § 579(1st ¶)

 

Brown v. Town of Bucksport, No. 2009-031, at 11 n.13

 

 

Application must be in writing, 36 M.R.S. § 579(1st)

 

          Russell v. Town of Fryeburg No. 91-33, at 2

          Crosby v. Town of Belgrade, No. 98-022, at 1

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005, at 11

          Smith v. Town of Livermore Falls, No. 2010-008, at 6 (order on

jurisdiction)

 

 

Failure to meet the requirement that application must be filed in duplicate, 36 M.R.S. § 579(1st ¶), is a technical violation that, in the absence of prejudice to the town, does not preclude an appeal

 

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 6

 

 

36 M.R.S. § 579(1st ¶) allows assessors to request information upon 120 days’ notice

 

          Dale Henderson Logging, Inc. v. City of Old Town, No. 94-05, at 3

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

at 11 n.9

 

 

Failure of parties to comply with order of the Board to supply information

 

          Hornberger v. Town of Bremen, No. 86-02, at 1

          Richmond v. Town of Moscow, No. 2004-004, at 2, 3 (not providing

assessors with requested information resulted in inability of landowner to file timely request for tree growth)

 

 

Application for classification as tree growth must be filed by April 1st of the first tax year in which classification is sought, 36 M.R.S. § 579(1st ¶)

 

          Russell v. Town of Fryeburg No. 91-33, at 2

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

at 10-11 & n. 10 (suggesting April 1st deadline is mandatory)

          Fowler v. Town of Lubec, 2004-002, at 3 n.3

 

 

Whether application is timely if amended after April 1st

 

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 6

                   (issue waived)

 

 

Application for tree growth classification requires that taxpayer identify the various areas included in the application, including building areas, which are assessed at fair market value

 

          Kendall v. Town of Perry, No. 2008-004, at 5

 

 

Contents of forestry management plan, 36 M.R.S. § 573(3-A)

 

          Brower, Denis & Powers v. Town of Starks, No. 95-007, at 3 (law

requires plan to include location of water bodies and wildlife habitat, but presence of such does not disqualify property from tree growth)

 

 

36 M.R.S. § 575-A provides for landowner to make forest management and harvest plan available to the assessors and the Department of Conservation, Bureau of Forestry to provide assistance in evaluating the plan

 

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 4-5

                   (but Bureau of Forestry will not opine on whether a taxpayer’s

                   covenant or recorded declaration prohibits cutting of trees)

 

 

The Board is not obligated to accept the conclusion of the Bureau of Forestry that a management plan is acceptable

 

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 8

 

 

Argument that management plan is adequate although it does not call for harvesting of trees within 10 years, and therefore conservation easement that prohibits commercial activity cannot deprive landowner of tree growth status

 

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 7-9

                   (conservation easement prohibiting commercial activity

                   disqualifies land from tree growth classification)

 

 

Taxpayer has 185 days from commitment of taxes to file application for abatement

 

          Davis v. Town of Lamoine, No. 2002-003, at 2

Fowler v. Town of Lubec, 2004-002, at 2

Curtis v. Town of Sherman, No. 2004-005, at 3 (order on jurisdiction)

          Zorn v. Town of Lubec, No. 2004-007, at 2

          Gray v. Town of Sedgwick, No. 2005-005, at 2

          Campbell v. Town of Brownville, No. 2006-003, at 3

          Kendall v. Town of Perry, No. 2008-004, at 1

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 6

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

                   at 3-4

          Rum Cove, LLC v. Town of Westport Island, No. 2008-032, at 2

          Bayroot, LLC v. Highland Plantation, Nos. 2009-004, -005 & -033,

at 2-3 (errors relating to valuation of property must be filed within 185 days from commitment although section 841(1)

does not speak of valuation)

          Francis Small Heritage Trust, Inc. v. Town of Limington, Nos. 2009-032

                   & 2010-016, at 1

          McLaughlin v. Town of Dexter, No. 2010-001, at 11

          Smith v. Town of Livermore Falls, No. 2010-008, at 3-4 (order on

                   jurisdiction)

          Haggard v. Town of Swan’s Island, No. 2010-012, at 5 (Board must

dismiss an appeal in which the taxpayer did not request an abatement within 185 days of commitment); at 4-5 (taxpayer excused from complying when town affirmatively misstated how and when she could challenge withdrawal penalty)

 

         

Whether a municipality has provided proper notice to the taxpayer that its 36 M.R.S. § 574-B statements are due does not extend taxpayer’s 185-day period to file a request for abatement

 

McLaughlin v. Town of Dexter, No.2010-001, at 10

 

 

What constitutes an illegality, error, or irregularity in 36 M.R.S. § 841(1)

(2nd ¶)

 

          Haggard v. Town of Swan’s Island, No. 2010-012, at 9-10 & n.7 (citing

Law Court decisions suggesting illegality corresponds with irregularity)

 

 

36 M.R.S. § 841(1)(2nd ¶) is addressed to the municipal officers, not assessors, because it specifically excludes correcting an error in the valuation of property

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016,

                   at 8 n.6

 

 

Municipality need not notify taxpayer that his application for tree growth classification has been granted

 

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 14

 

 

Tax bill stating “tree growth” is sufficient for the Board to find property was classified as such

 

          Filaroska v. Town of Vienna, No. 90-44, at 2

 

 

Real estate transfer tax declaration put taxpayers on notice that property was classified

 

          Pierce v. Maine Revenue Services, No. 2006-007, at 3, 5

 

 

Taxpayer had to file map or plan to satisfy 36 M.R.S. § 579, but since town admitted at least a certain amount of land belonged in tree growth, that

much should have been so classified

 

          Edward C. and Cynthia M. Hunt v. Town of Phippsburg, No. 91-41,

                   at 5

          Kenneth and Julie Hunt v. Town of Phippsburg, No. 91-42, at 5-6

 

 

The Board orders reclassification as tree growth upon agreement of town

 

          Coulter v. Town of Oxford, No. 91-95, at 1

 

 

The Board finds entire parcel, including road and stream, should be classified as tree growth, 36 M.R.S. § 574-B

 

          Gray v. Town of Blue Hill, No. 91-92, at 1

 

 

Property in tree growth treated as one parcel though divided by a road, 36 M.R.S. § 574-B

 

          Kendall v. Town of Perry, No. 2008-004, at 2

 

 

It is reasonable for a municipality to consider a parcel of land as a whole when enrolling property as tree growth

 

          Gray v. Town of Sedgwick, No. 2005-005 at 8

 

 

Throughout the Tree Growth Tax Law, classified property is addressed in terms of acres, so that while the law does not specifically prescribe the particular area of buildings to be assessed at fair market value within tree growth that is to be done in acres

 

          Kendall v. Town of Perry, No. 2008-004, at 5

          Smith v. Town of Livermore Falls, No. 2010-008, at 1 n.1

 

 

Challenge to town’s use of enhancement factor to recapture revenue lost when land is in tree growth

         

          Elisofan v. Town of Vinalhaven, No. 91-65, at 3 (issue not

decided; see also farmland and open space cases)

 

 

Increase in assessment of non-tree growth land, arguably done to allow town to recoup revenue lost from land in tree growth, does not translate into an over-assessment of the tree growth land

 

          Old Point, Inc. v. Town of Lamoine, Nos. 2010-009 & 2011-016, at 5-6

 

 

Where assessors took the initiative pursuant to 36 M.R.S. § 841(1) to look back over three years, but no more than that, to see if they had committed any illegality, error, or irregularity, they must act consistently as to all years in which the evidence is the same

 

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

at 12, 13 (any other conclusion would countenance arbitrariness)

         

 

If appeal to municipal officers before the one- to three-year look-back period in 36 M.R.S. § 841(1)(2nd ¶) is premature, the Board has no jurisdiction

 

          Dale Henderson Logging, Inc. v. Town of Steuben, No. 2008-016, at

6-9, 14 (appeal pursuant to 36 M.R.S. § 841(1)(2nd¶), allowing municipal officers to correct any illegality, error, or irregularity, but not correct an error in valuation, is not timely if taken prematurely—before one year from commitment of denial)

 

 

The Board has decided if a taxpayer has remedies other than 36 M.R.S.

§ 841(1) to have past taxes, assuming illegality or error in assessment, corrected

 

          Fasse v. Town of St. Albans & Town of Ripley, No. 2002-005,

                   at 14 n.12

 

 

Interrelationship of 36 M.R.S. §§ 579 and 581

 

          Brown v. Town of Bucksport, No. 2009-031, at 1-5

 

 

Withdrawal penalties are means to recapture revenues lost by classification in tree growth

 

          Elisofan v. Town of Vinalhaven, No.91-65, at 3

          Brown v. Town of Bucksport, No. 2009-031, at 17

 

Land taken out of tree growth is valued at fair market value for purposes of assessing penalties, with reference to comparable properties, 36 M.R.S. §§ 576-A, 581(3)

 

          Brown v. Town of Bucksport, No. 2009-031, 17 (town may use town-

                   wide assessment that developed land schedules); at 19

                   (assessor correctly assessed withdrawn land, and, so, penalty)

 

 

Withdrawal of property from tree growth and assessment of penalties, 36 M.R.S. §§ 579, 581

 

Reynolds v. Town of Fairfield, No. 86-01, at 3

          Hornberger v. Town of Bremen, No. 86-02, at 4

          Hope v. Town of Bristol, No. 87-16, at 2 (penalty mandatory)

Lord v. Town of Fayette, No. 89-15, at 2-3 (miscalculation of

penalty)

          Hardison v. Town of Waltham, No. 91-16, at 2 (when residence

may be built on formerly classified property, penalty to be

assessed, as are neighboring lots, as “wildwood” and not as

“phantom house lot”)

          Damian v. Town of Newcastle, No. 93-01, passim  (with calculations)

Dale Henderson Logging, Inc. v. City of Old town, No. 94-05, at 4

          (listing ways in which property is considered withdrawn; sale,

          so property no longer meets 10-acre requirement; owner’s not

          submitting a forestry plan pursuant to section 574-B; owner’s

request pursuant to section 581; assessors’ determination that property no longer qualifies pursuant to sections 573 and 581)

          Bone v. Bureau of Taxation, No. 96-005, at 2 (state assessed

penalties fairly)

          Roderick v. Town of Crystal, No. 97-103, at 1 (withdrawal may be

voluntary or upon town’s noticing disqualifying change of use);

at 2-3 (discussion of calculation of penalties when one was undeveloped land and was not a base acre)

Pachowsky v. Town of Clinton, No. 2001-005, at 6, 8 (penalty is

mandatory upon withdrawal of land from tree growth—for failure to file forest management plan timely—and statute does not distinguish between intentional and unintentional withdrawals); at 7, 8 (existence of arguably extenuating family matters does not excuse failure to file forest management plan by December 31, 2000)

          Davis v. Town of Lamoine, No. 2002-003, at 4 (failure of taxpayer

to notify town of change in use justified withdrawal penalty;

taxpayer argued town miscalculated penalty)

          Fowler v. Town of Lubec, 2004-002, at 1, 5 (penalty is mandatory                      upon withdrawal of land from tree growth for failure to file                       forest management plan timely); at 5 (existence of pressing

          personal matters does not excuse failure to timely file a         statement from a forester, as section 574-B(2) is mandatory)

          Richmond v. Town of Moscow, No. 2004-004, at 1, 3-4 (dispute over

acreage does not excuse failure to timely file a section 574-B(3) statement)

Curtis v. Town of Sherman, No. 2004-005, at 2 (order on jurisdiction;

                   placement of a small camp on sills; that structure was not

                   intended to be permanent and taxpayer would have been glad to

remove it is not a defense)

          Zorn v. Town of Lubec, No. 2004-007, at 1, 3-4 (existence of pressing

business matters does not excuse failure to timely file a section 574-B(3) statement)

          KeyBank National Ass’n v. Town of Phippsburg, No. 2006-002, at 7

                   (penalty may be assessed as supplemental assessment and                      is subject to abatement process)

          Campbell v. Town of Brownsville, No. 2006-003, at 2, 3-4 (failure to

timely file section 574-B(3) statement automatically causes

withdrawal)

          Pierce v. Maine Revenue Services, No. 2006-007, at 5-7 (penalty is

                   mandatory upon withdrawal of land from tree growth for                           failure to file forest management plan timely; (deaths of                        family members and friends and loss of home in fire do not                          excuse failure to file either statement required by section                           574-B(3), which is mandatory; at 7, exemptions for                                    inadvertence or not filing either section 574-B(3) statement                      is up to Legislature; at 8, softening of mandatory penalty for