Murray v. City of Burlington

Decision Date07 February 2012
Docket NumberNo. 11–111.,11–111.
Citation44 A.3d 162,2012 VT 11
PartiesMargaret MURRAY v. CITY OF BURLINGTON.
CourtVermont Supreme Court

44 A.3d 162
2012 VT 11

Margaret MURRAY
v.
CITY OF BURLINGTON.

No. 11–111.

Supreme Court of Vermont.

Feb. 7, 2012.


[44 A.3d 163]


Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, Associate Justices.


ENTRY ORDER

¶ 1. Taxpayer appeals an order from the civil division of the superior court dismissing her tax abatement appeal. On appeal to this Court, taxpayer argues that the superior court erroneously concluded that she could not appeal the abatement decision because she failed to challenge the valuation of the property in the appraisal process. We conclude that taxpayer's abatement appeal to the superior court is not foreclosed by her failure to appeal the valuation of her property, and reverse and remand.

¶ 2. A motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted, V.R.C.P. 12(b), will not be granted “unless ‘it appears beyond doubt’ that there exist no facts or circumstances that would entitle the plaintiff to relief.” Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997) (quoting Levinsky v. Diamond, 140 Vt. 595, 600–01, 442 A.2d 1277, 1280–81 (1982)); see

[44 A.3d 164]

Conley v. Crisafulli, 2010 VT 38, ¶ 3, 188 Vt. 11, 999 A.2d 677 (reciting standard for review of dismissal for lack of subject matter jurisdiction). On appeal, we assume as true the nonmoving party's factual allegations and accept all reasonable inferences that may be drawn from those facts. Amiot, 166 Vt. at 291, 693 A.2d at 677.

¶ 3. So viewed, the relevant facts are as follows. Taxpayer owns property on Shelburne Street in the City of Burlington, where a cleaning business has operated in the past. In 1994, the mortgagee of the property conducted tests on the property and apparently discovered petroleum-based contamination. Taxpayer lacked the resources to conduct her own tests and her efforts to appeal the tax valuations in 1995 and 1996 were unsuccessful. In 1995, taxpayer also filed an abatement action. The Board of Abatement reduced the appraisal by $10,000 to $155,300, but declined to find the property worthless.

¶ 4. From 1995 onward, the City continued to assess taxes on the property. Taxpayer did not pay the taxes and a substantial tax lien accrued, but the City did not initiate a tax sale to recover the debt. Taxpayer eventually obtained enough funds to conduct her own site testing and the resulting analysis showed petroleum contamination. In 2010, taxpayer filed a new request with the Board of Abatement. The Board abated the taxes accrued earlier than 1994, but denied the request as to the remaining taxes.

¶ 5. Taxpayer appealed the denial to the civil division pursuant to Vermont Rule of Civil Procedure 75, which provides for review of governmental action when such review is not available under Rule 74 and “is otherwise available by law.” V.R.C.P. 75(a). Her complaint alleged, among other things, that the abatement procedure denied her due process of law, that abatement was appropriate because collection of taxes on a worthless property amounted to a violation of equal protection, and that the Board did not act impartially.

¶ 6. The City moved to dismiss taxpayer's appeal in the civil division for lack of subject matter jurisdiction and for failure to state a claim. V.R.C.P. 12(b)(1), (6). As to jurisdiction, the City argued that because taxpayer's arguments wholly rested on her assertion that the property is valueless, her proper remedy was through a tax appeal and Rule 75 could not be used to bypass this direct avenue of relief. In the alternative, the City argued that taxpayer failed to allege any facts that would entitle her to relief under the abatement statute because she did not demonstrate that the taxes were illegal or that the Board had not acted impartially.

¶ 7. The trial court granted the motion to dismiss on jurisdictional grounds, ruling that by choosing not to appeal the valuation of her property through the tax assessment process taxpayer had failed to exhaust her statutory remedies. Thus,...

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