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Yusem v. Town of Raymond
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 61
Docket:	Cum-00-509
Submitted 
on Briefs:	April 2, 2001
Decided:	April 18, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




STEPHEN G. YUSEM v. TOWN OF RAYMOND


SAUFLEY, J.


	[¶1]  Stephen Yusem appeals from the judgment of the Superior Court
(Cumberland County, Crowley, J.) affirming the decision of the Cumberland
County Commissioners denying, with one modification, his request for a tax
abatement regarding property located on Sebago Lake.  We affirm the
judgment.
I. BACKGROUND
	[¶2]  Yusem owns approximately 4.19 acres of land on Sebago Lake in
Raymond, Maine.  Of that 4.19 acres, 2.3 acres are classified as shorefront
property.  The property includes a 100-year-old vacation home, a shed, a
dock, and a building that is used both as a boathouse and a bunkhouse.  He
bought the property in 1996 for $535,000.  In 1997, the property was
assessed at $256,500,{1} consisting of $157,640 for the land and $98,860 for
the buildings.{2}  
	[¶3]  In 1998, the Town of Raymond undertook a reassessment of the
Town's property valuations, focusing on land values.  Prior to the revaluation,
nonwaterfront properties were being assessed at close to their fair market
value, while waterfront properties were being assessed at an average of 88%
of their sales prices.  The Town's new methodology recognized that
property located more than 200 feet from the shore should be valued
markedly lower than property located within 200 feet of the shore.  Thus,
the previous unitary land-pricing schedule used to value Yusem's land and
other lakefront properties was expanded into five subcategories:  "Sebago
1," "Sebago 2," "Sebago 3," "Additional 1," and "Additional 2."  The Town
applied the "Sebago 3" pricing schedule to those portions of Yusem's
property located within 200 feet of the shore and to the same shorefront
portions of other similar waterfront properties located on Sebago Lake.  As a
result of the revaluation, the Town of Raymond assessed Yusem's property at
$447,063 in October 1998.  The assessment designated $356,652 of the
value to the land and $90,411 to the buildings and improvements.  Thus, the
assessed value of Yusem's land increased substantially, while the assessed
value of his seasonal home and outbuildings was reduced.
	[¶4]  Yusem requested a $200,000 tax abatement on that 1998
property assessment.  The Town denied Yusem's application for abatement
because Yusem failed to present evidence of comparable properties'
relatively lower assessments, failed to present evidence that would support a
lower valuation of his property, and failed to submit contrary evidence of the
property's fair market value.
	[¶5]  Yusem appealed the Town's denial to the Cumberland County
Commissioners.  At the hearing before the Commissioners, Yusem argued
that the assessor had failed to consider all of the factors enumerated in 36
M.R.S.A. § 701-A (1990 & Supp. 1998) to determine just value.  He also
argued that his property, which includes just a seasonal home, was assessed
at only 10% lower than an abutting lot, which includes a year-round home,
and that the assessor had failed to take note of certain restrictions on the
use of his land.{3}  
	[¶6]  The Commissioners voted to deny, in part, Yusem's petition for
abatement.  They granted Yusem a partial abatement to account for the
erroneous assumption that the shorefront portion of his property
constituted 2.84 acres, rather than 2.3 acres.{4}  Yusem appealed to the
Superior Court pursuant to M.R. Civ. P. 80B.  The Superior Court affirmed
the Commissioners' decision.  This appeal followed.
II. DISCUSSION
A.  Burden of Proof and Standard of Review of the Assessment

	[¶7]  Because the Superior Court acted as an intermediate appellate
court, we review the decision of the Commissioners directly for an "abuse of
discretion, error of law, or findings unsupported by substantial evidence in
the record."  Town of Southwest Harbor v. Harwood, 2000 ME 213, ¶ 6,
763 A.2d 115, 117.{5}  
	[¶8]  When a taxpayer appeals from a Town's denial of an abatement,
the Commissioners begin their review of the assessment with the
presumption that the assessor's valuation of the property is valid.  Id. ¶ 7,
763 A.2d at 117.  To overcome that presumption, the taxpayer seeking an
abatement from the Commissioners has the initial burden of presenting
"'credible, affirmative evidence' to meet his or her burden of persuading the
[Commissioners] that the assessor's valuation was 'manifestly wrong.'"  Id.
¶ 8, 763 A.2d at 117 (citations omitted).  If, but only if, the taxpayer meets
that burden, the Commissioners must engage in "an independent
determination of fair market value . . . based on a consideration of all
relevant evidence of just value."  Quoddy Realty Corp. v. City of Eastport, 
1998 ME 14, ¶ 5, 704 A.2d 407, 408.  
	[¶9]  To meet the initial burden of showing that the assessment was
manifestly wrong, the taxpayer must demonstrate that (1) the judgment of
the assessor was irrational or so unreasonable in light of the circumstances
that the property was substantially overvalued and an injustice resulted;
(2) there was unjust discrimination; or (3) the assessment was fraudulent,
dishonest, or illegal.  Muirgen Props., Inc. v. Town of Boothbay, 663 A.2d 55,
58 (Me. 1995).{6}  We will vacate the Commissioners' conclusion that the
taxpayer failed to meet this burden "'only if the record compels a contrary
conclusion to the exclusion of any other inference.'"  Weekley v. Town of
Scarborough, 676 A.2d 932, 934 (Me. 1996) (citations omitted).
  
B.  Yusem's Challenge

	[¶10]  Yusem presented no evidence of the property's just value and
no evidence that his property was overvalued.{7}  Indeed, he admitted that he
had purchased the property for more than its current assessment.  He
presented no evidence of fraud or dishonesty.  Nor did he present
persuasive evidence that his property was assessed at a higher value than
those properties in the area that were similar to his.{8}  Instead, Yusem relied
upon perceived errors in the assessor's methods to make his case.  
	[¶11]  Specifically, Yusem argued that the assessment was "illegal"
because the assessor did not articulate a review of those factors that may be
relevant to a determination of just value pursuant to 36 M.R.S.A. § 701-A.{9}
Section 701-A requires an assessor to consider "all relevant factors" in
determining just value.  36 M.R.S.A. § 701-A.  Those factors will include,
where relevant to the assessment, "the effect upon value of any enforceable
restrictions to which the use of the land may be subjected, current use,
physical depreciation, functional obsolescence, and economic
obsolescence."  Id.{10}  Yusem argues that the assessor failed to consider each
factor separately as applied to his property.  Yusem did not, however,
demonstrate that the consideration of any of the factors would have resulted
in a reduced determination of just value of his property.  When it is alleged
that the assessor failed to consider any of the section 701-A factors, the
taxpayer must demonstrate "how the failure to discretely consider those
factors resulted in a substantial overvaluation."  Glenridge Dev. Co. v. City of
Augusta, 662 A.2d 928, 932 (Me. 1995).  Moreover, the statutory mandate
that certain factors be considered does not equate to a mandate that each
factor be applied to each property.  See Pepperman v. Town of Rangeley,
1999 ME 157, ¶ 4, 739 A.2d 851, 853.  The body determining just value
must determine whether the factor at issue is relevant to the property
before it.  See id.
	[¶12]  In the final analysis, Yusem argues that he is entitled to an
abatement, not because the perceived errors in the assessment resulted in
the determination of an unjust or discriminatory assessment of his property,
but solely because he has identified what he believes to be a flaw in the
assessor's method of establishing the property's just value.  In other words,
notwithstanding Yusem's inability to demonstrate that the result was other
than fair and just, he argues that he is entitled to an abatement because the
process by which that result was reached may have been flawed.
	[¶13]  Yusem misapprehends his burden before the Commissioners. 
Impeachment of the assessor's methodology alone is insufficient to meet
that burden.  City of Waterville v. Waterville Homes, Inc., 655 A.2d 365, 366
(Me. 1995).  The taxpayer must demonstrate that the "property is
overrated."  Sears, Roebuck & Co. v. Inhabitants of Presque Isle, 107 A.2d
475, 477 (Me. 1954).  Because the Commissioners' responsibility was to
assure that the constitutional elements of taxation were present, their task
was to determine whether the Town had failed to assign a value to Yusem's
property that was "fair" (nondiscriminatory) and "just" (in line with the fair
market value of the property).  See Chase v. Town of Machiasport, 1998 ME
260, ¶ 11, 721 A.2d 636, 640.{11}  To do so, the Commissioners would have
to compare the assessed value of the lot with a value demonstrated by Yusem
to more accurately reflect a fair and just value.  Yusem's focused attack on
the assessor's methodology left the Commissioners without the evidence
necessary to undertake the comparison.  Thus, he failed to meet his burden.
	[¶14]  Notwithstanding the deficiency in his presentation, Yusem
argues that he is entitled to an abatement because his impeachment of the
assessor's methods has demonstrated that the assessment was "illegal."  We
reject Yusem's attempt to recast his challenge to the assessor's methodology
as a claim of illegality.{12}  Such an approach would reward a taxpayer with an
abatement from an assessment that represents a fair and just determination
of value if the taxpayer points to a gap or perceived flaw in the assessment
methodology.  Because that approach would be entirely contrary to our
established law, we have made it clear that a taxpayer may not meet his
burden solely by attacking the methodology of the assessor.  Glenridge Dev.
Co., 662 A.2d at 931.  
	[¶15]  In sum, when the taxpayer fails to provide the Board with
evidence of just value sufficient to convince the Commissioners or Board that
an error may have occurred, the Commissioners have no basis for inquiring
further into the assessor's method of determining just value.  Waterville
Homes, Inc., 655 A.2d at 367.  Because Yusem failed to present evidence
that the assessment was manifestly wrong, there was no reason for the
Commissioners to scrutinize the manner by which the assessment was
derived.
 
C.  Freedom of Access Act.

	[¶16]  We next address Yusem's allegation that the Commissioners'
decision violates the Freedom of Access Act, 1 M.R.S.A. § 407(1) (1989).  A
party alleging a violation of the Freedom of Access Act bears the burden of
presenting probative evidence before the Superior Court sufficient to
support a finding that the Act was violated.  Chase, 1998 ME 260, ¶ 9, 721
A.2d at 639.
	[¶17]  Section 407 requires the agency to make a written record of
each decision and to articulate the reasons for the decision.  1 M.R.S.A.
§ 407(1).{13}  The Commissioners were required to set out their findings with
a level of specificity that is "'sufficient to appraise [sic] the applicant and any
interested member of the public of the basis for the decision.'"  Christian
Fellowship and Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 14, ---
A.2d ---, --- (citation omitted).{14}  
	[¶18]  Yusem's failure of proof left the Commissioners with little to
say.  Although brief, we conclude that the Commissioners' findings are
sufficient for our review and sufficient to apprise Yusem and the public of
the reasons for their conclusion.
	The entry is:
Judgment affirmed.
  
For plaintiff: Stephen G. Yusem 40 East Airy Street Norristown, PA 19404 Attorneys for defendant: Joan M. Fortin, Esq. Robert J. Crawford, Esq. Geoffrey H. Hole, Esq. Bernstein, Shur, Sawyer & Nelson, P.A. P O Box 9729 Portland, ME 04104-5029
FOOTNOTES******************************** {1} . The Town's records reflect that the 1997 assessment totalled $251,000, which appears to be incorrect in light of the fact that $157,640 was allocated to the land assessment and $98,860 was allocated to the building assessment. {2} . The property was not improved in any way from April 1, 1997, to April 1, 1998. {3} . The assessor, however, testified that the "assessment on [the abutting lot] is inappropriate relative to its market value. I would call that a clear case of an assessing mistake. . . . [I]ts current assessed value is well below its market value." {4} . The adjusted assessment totalled $415,410, consisting of $324,999 for the land assessment and $90,411 for the building assessment. {5} . Proceedings before the Commissioners are hybrid proceedings for purposes of determining which administrative body's actions we review. See Stewart v. Town of Sedgwick, 2000 ME 157, ¶¶ 4, 9-10, 757 A.2d 773, 775, 776-77. In abatement proceedings, the Commissioners or analogous body undertakes an independent review of value, but does so only if the taxpayer makes his threshold showing that the assessment is manifestly wrong. Id. ¶ 9, 757 A.2d at 776. Because the Commissioners undertake an independent analysis of value if the taxpayer meets the preliminary burden, we review the actions of the Commissioners, not that of the Town. Id. ¶ 4, 757 A.2d at 775. {6} . "All taxes upon real and personal estate, assessed by authority of this State, shall be apportioned and assessed equally according to the just value thereof." Me. Const. art. IX, § 8. Thus, an assessment must incorporate two concepts: (1) "the property must be assessed at its fair market value"; and (2) "the assessed value must be equitable, that is, the property must be assessed at a relatively uniform rate with comparable property in the district." Chase v. Town of Machiasport, 1998 ME 260, ¶ 11, 721 A.2d 636, 640 (citations omitted). {7} . Yusem explained that he had not bothered to present an appraisal of the property because he believed that the Town's assessment was invalid based on his conclusion that the assessor had "absolutely ignored" 36 M.R.S.A. § 701-A (1990 & Supp. 1998). {8} . Regarding the single comparison suggested by Yusem, the Commissioners accepted the assessor's representation that the abutting lot was substantially undervalued in error. {9} . Section 701-A provides, in pertinent part: In the assessment of property, assessors in determining just value are to define this term in a manner which recognizes only that value arising from presently possible land use alternatives to which the particular parcel of land being valued may be put. In determining just value, assessors must consider all relevant factors, including without limitation, the effect upon value of any enforceable restrictions to which the use of the land may be subjected, current use, physical depreciation, functional obsolescence, and economic obsolescence. Restrictions shall include but are not limited to zoning restrictions limiting the use of land, subdivision restrictions and any recorded contractual provisions limiting the use of lands. The just value of land is deemed to arise from and is attributable to legally permissible use or uses only. 36 M.R.S.A. § 701-A. {10} . The revaluation of Sebago property involved only land values in an area of prized real estate. Thus, such factors as physical depreciation, or functional or economic obsolescence would not have been relevant to the assessment. {11} . "'Just value means market value.'" Quoddy Realty Corp. v. City of Eastport, 1998 ME 14, ¶ 9, 704 A.2d 407, 409 (citations omitted). "The arms length sale price of property provides the best evidence of market value." Town of Southwest Harbor v. Harwood, 2000 ME 213, ¶ 19, 763 A.2d 115, 120. "Market value" generally means the price that a "willing buyer would pay a willing seller at a fair public sale." Frank v. Assessors of Skowhegan, 329 A.2d 167, 173 (Me. 1974). {12} . An illegal assessment is generally understood as one that exceeds the bounds of the taxing entity's authority. See Herriman v. Stowers, 43 Me. 497 (1857) (holding that the assessors of the town have no right to assess one who is not an inhabitant of the town). {13} . Section 407(1) states: 1. Conditional approval or denial. Every agency shall make a written record of every decision involving the conditional approval or denial of an application, license, certificate or any other type of permit. The agency shall set forth in the record the reason or reasons for its decision and make finding of the fact, in writing, sufficient to appraise [sic] the applicant and any interested member of the public of the basis for the decision. A written record or a copy thereof shall be kept by the agency and made available to any interested member of the public who may wish to review it. 1 M.R.S.A. § 407(1) (1989). {14} . "An erroneous or incomplete finding does not, by itself, constitute a violation of section 407." Chase, 1998 ME 260, ¶ 10, 721 A.2d at 640. The requirement that a written record accompany every decision under Maine's Freedom of Access Act "does not require the [Commissioners] to include a complete factual record with its decision, [but] it does require a statement of facts sufficient to show a rational basis for the decision." Your Home, Inc. v. City of Portland, 432 A.2d 1250, 1257 (Me. 1981); accord 1 M.R.S.A. § 407(1); Chase, 1998 ME 260, ¶ 10, 721 A.2d at 639.