Bookstaver v. Town of Westminster, 33-72
| Decision Date | 06 February 1973 |
| Docket Number | No. 33-72,33-72 |
| Citation | 131 Vt. 133,300 A.2d 891 |
| Parties | Louise S. BOOKSTAVER v. TOWN OF WESTMINSTER. |
| Court | Vermont Supreme Court |
Thomas P. Salmon, Bellows Falls, for plaintiff.
Albert T. Bolles, Bellows Falls, and David A. Gibson, Brattleboro, on the brief, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
On April 1, 1971, the listers of the town of Westminster appraised plaintiff's real property for tax purposes at a fair market value of $250,000. On appeal to the board of civil authority under 32 V.S.A. § 4404, this valuation remained unchanged. The plaintiff then appealed to the Windham County Court pursuant to 32 V.S.A. § 4461. The court, after hearing, made findings of fact and entered its judgment order denying plaintiff's appeal. From this action of the court, the plaintiff brings the case to this Court for decision.
The central question raised by the appeal is the fair market value of plaintiff's real property.
The following facts appear of record. On October 11, 1968, the plaintiff, a resident of New York City, purchased 225 acres of land in the so-called Connecticut Valley Orchards section of the defendant town of Westminster for the sum of $54,000. This land consisted of about 12-15% of open land, or 27-33 acres. Of this, 7.2 acres are orchard, 5 acres having been replanted with new apple trees. The balance of the 225 acres, 198-191 acres, is woodland having no marketable timber thereon. There is also a 3.5 acre pond with a 4-5 foot mud base situated on the land.
During 1969 and 1970 the plaintiff and her husband, who deceased in late 1970, had a house constructed on the westerly edge of the pond. The house is of a contemporary design with five levels. The main entrance is at the fifth level as the house is constructed on a slope extending to the pond. It has a center stairway 8 feet wide and about 60 feet long which runs from the fifth level down to the pond and swimming pool. It is of standard construction with no fancy materials being used. There is a master bedroom and bath at the top of the stairway with a terrace opening. Coming down the stairway at half levels, there is a combination kitchen, dining room and living room. At the next level there are two bedrooms with separate baths. There is an opening onto a sun deck from these bedrooms. At the next level there is a game room, small kitchen and utility room. The next level has two bedrooms with individual baths. All bathrooms have separate hot water heaters. At the foot of the staircase leading from the entrance is a heated and filtered swimming pool, 18 40 feet, with a deck surrounding it made of slate anchored in cement. A three car garage was also constructed with the house but separated from it.
The land to the south and west of the house is on a sidehill and slopes at a substantial grade. Also it is quite ledgy and totally wooded.
In order to reach the house site the plaintiff had a private road constructed about one mile in length from another private right of way. This road is approximately 75% through the woods. None of the land borders on or is served by a public road.
The determination of the appeal is controlled by 32 V.S.A. § 4467 which reads as follows:
A de novo hearing by the court means that the case shall be heard the same as though it had not been heard before, or trying the dispute anew as though no decision had been previously rendered. 25A C.J.S. p. 483. The court is mandated by 32 V.S.A. § 4467 to determine the correct valuation of the property taking into account the requirements of law and the provisions of the State and Federal Constitutions.
Appraisals of real estate are required by statute to be made on its fair market value. 32 V.S.A. §§ 3481, 4041. The fair market value of property is the price which the property will bring in the market when offered for sale and purchased by another, taking into consideration all the elements of the availability of the property, its use both potential and prospective, any functional deficiencies, and all other elements such as age and condition which combine to give property a market value. There is no one or controlling factor. See In re Heath, 128 Vt. 519, 524, 266 A.2d 812 (1970).
On April 1, 1970, when the house was about 70% completed, the listers of the defendant town appraised the plaintiff's property at $229,000. As a result of the plaintiff's attorney appearing before the listers on the grievance day appeal, the listers reduced the appraised value from this figure to $114,650. But on April 1, 1971, the appraised value was raised by the listers to $250,000, an increase of over 120% with only a 30% completion of the house involved.
The following formula is the method used by the listers to appraise land in the town for the year 1971 as shown by defendant's Exhibit A.
Defendant's only witness, lister Holton, testified that category 1 is for the poorer land, unaccessible or landlocked land; number 2 is for the average land on a road; number 3 is above average as village land and developed land; and number 4 is high priced and extraordinary land along Connecticut Valley River, tillage land. There is no provision in the formula for increasing the valuations on account of access being necessary by private road.
Plaintiff's land was classified by the listers in 'the most valuable' category and was appraised by them as shown by Finding No. 17 at the values following:
"First acre (house site) $ 2,500.00
Next 4 acres ($600) 2,400.00
Next 20 acres ($500) 10,000.00
Remaining 200 acres ($280) 56,000.00
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*$79,900.00
Correct figure is $70,900.00"
Lister Holton testified that they then added $25,000.00 which represented their 'estimated cost' of the private road and 'the electricity to it (site).' This would bring the total value for the land to $95,900. However, another estimated value of the land by the witness was $95,060.00 because the listers considered the acreage as 222 acres not 225 acres.
The first issue presented by the plaintiff is (1) to the court's refusal to find as requested by No. 29 of her requests and (2) to the court's finding No. 31 for the reason that it lacked evidentiary support. Plaintiff's request No. 29 reads:
'29) Three comparable properties in the neighborhood of the Plaintiff's property reflect the following characteristics:
a) Land of Theodore and Judith Parker consist of 129 acres with approximately thirty percent open meadow and 70 percent woodland with one half mile road frontage on a blacktop road with slope, comparable to the Bookstaver land; land carried in the Grand List of the Town of Westminster at $85.00 an acre average.
b) Lands of Feldman consisting of 116 acres with twenty percent open meadow and orchards and 80 percent wooded land at an elevation providing panoramic view of the Connecticut River Valley, and carried on the Grand List Book in the Town of Westminster at a fair market value of $146.00 an acre average price.
c) Lands of John Kawaky consisting of 53 acres made up of one half open meadow land and orchard and one half wooded land, carried on the Grand List Book of the Town of Westminster at $172.00 average per acre.
d) All of the premises described in a), b), and c) are more developable and, accordingly, more valuable then plaintiff's land.'
Plaintiff's witness, Norman Wright, a person of experience in the field of construction and appraisal work, testified as to the above three properties that he used as comparables to the plaintiff's land.
The first comparable was the Parker property. He testified that it contained 129 acres, thirty per cent open meadow and seventy per cent woodland; that about a half mile of blacktop road provided access to it; that the land was comparable in slope to the plaintiff's land but more developable; and that it was appraised by the listers in 1971 at 10,900., an average of $85. per acre.
The second comparable was the Feldman land. Wright's testimony showed that this was 116 acres to the east of plaintiff's land; that it was located on the brow of a hill and had an outstanding and prime view of the Connecticut Valley and was serviced by a town gravel road; that twenty per cent was open land and eighty per cent wooded land; that part of the open land was orchard but the open land was not quite as comparable to plaintiff's land and is a little steeper; and that the 1971 appraised value was $16,825.00, an average of $146.00 per acre.
The third comparable in the immediate neighborhood of plaintiff's land was the Kawaky land. Wright testified it was an attractive parcel of 53 acres, one corner of which abuts the plaintiff's land; that about forty per cent was open meadow and orchards and sixty per cent wooded land; that although smaller in acreage it was a comparable piece of land with the same amount of orchard lands as pl...
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