Sinha v. Town of Shelburne, No. S0930-04 CnC (Norton, J., June 23, 2005)

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STATE OF VERMONT                                    SUPERIOR COURT
Chittenden County, ss.:                         Docket No. S0930-04 CnC



RAM N. SINHA,
    Appellant

v.

TOWN OF SHELBURNE,
    Appellee



                                 ENTRY



       Appellant Ram N. Sinha appeals, pursuant to V.R.C.P. 75, the
decision of the Town of Shelburne’s Board of Abatement to deny his
request for an abatement for the 2003–04 tax year. Mr. Sinha has moved
for summary judgment. The Town of Shelburne has made a cross motion
for summary judgment. For the reasons stated below, summary judgment
is granted in favor of the Town of Shelburne.
        Summary judgment is granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any . . . show that there is no genuine issue as to any material
fact and that any party is entitled to judgment as a matter of law.” V.R.C.P.
56(c)(3). In determining whether a genuine issue of fact exists, the
nonmoving party receives the benefit of all reasonable doubts and
inferences. Robertson v. Mylan Labs., Inc., 

, ¶ 15. Allegations
to the contrary must be supported by specific facts sufficient to create a
genuine issue of material fact. 

parties both seek
summary judgment, each is entitled to the benefit of all reasonable doubts
and inferences in determining whether a genuine issue of material fact
exists when the opposing party’s motion is being judged. Toys, Inc. v.
F.M. Burlington Co., 

, 48 (1990).

                                   FACTS

       The following facts are undisputed. Taxpayer owns three parcels of
land in Town known as 2 Sledrunner Road, 5 Sledrunner Road, and 104
Sledrunner Road. Taxpayer is a full-time resident of Sands Point, New
York. At all times pertinent, Taxpayer had informed Town that all notices
and other official communications were to be mailed to his address in
Sands Point.

        Town increased the assessed value of the parcels to $2,966,500 as
part of a town-wide reappraisal effective April 1, 2003. Town sent a notice
of change of appraisal to Taxpayer by way of first class bulk mail on May
30, 2003. Town did not segregate Taxpayer’s out-of-state bulk mailings
from other, local bulk mailings. Taxpayer claims that he never received
this notice or any other communications from the Town sent by way of
bulk mail, including items from the Town’s prior reappraisal efforts in 2002
and 2003.
       The first notice that Taxpayer received of the change in the
assessment of the parcels was his property tax bill dated July 10, 2003 for
the 2003–04 tax year. By that time Taxpayer’s appeal period under 32
V.S.A. § 4404 had expired. Taxpayer paid his property tax bill in a timely
manner over the course of the 2003–04 tax year.

        On June 9, 2004, Taxpayer filed a timely request for a grievance
hearing with Town’s Assessor regarding the assessed value of the parcels
for the 2004–05 tax year. On June 23, Town reduced the assessed value of
the Property to $2,095,100 for the 2004–05 tax year. In the meantime,
Taxpayer filed a request with Town to abate his property taxes for the
2003–04 tax year. The basis for his request was the lack of timely notice of
the change of appraisal in 2003 that unfairly precluded him from pursuing
an appeal.

       On July 14, Taxpayer supplemented his request and asked that Town
also abate his 2003–04 taxes based on the reduction it made to the assessed
value of his parcel on June 23. Five days later, Town’s Board of
Abatement denied Taxpayer’s request.

                                DISCUSSION

      Vermont’s law requiring notice of changes in property assessments
provides:

      When the listers return the grand list book to the town clerk, they
      shall notify by first class mail, on which postage has been prepaid
      and which has been addressed to their last known address, all
      affected persons, listed as property owners in the grand list book of
      any change in the appraised value of such property . . . and also
      notify them of the amount of such change and of the time and
      place fixed in the public notice hereinafter provided for, when
      persons aggrieved may be heard. Notices shall be mailed at least
      14 days before the time fixed for hearing. Such personal notices
       shall be given in all towns and cities within the state, anything in
       the charter of any city to the contrary not withstanding. At the
       same time the listers shall post notices in the town clerk’s office
       and in at least four other public places in the town . . . setting forth
       that they have completed and filed such book as an abstract and the
       time and place of the meeting for hearing grievances and making
       corrections. Unless the personal notices required hereby were sent
       by registered or certified mail, or unless an official certificate of
       mailing of the same was obtained from the post office, in the case
       of any controversy subsequently arising it shall be presumed that
       the personal notices were not mailed as required.

32 V.S.A. § 4111(e) (emphasis added). It is undisputed that Town mailed
notices of the 2003 reappraisal of the parcels to Taxpayer by first class bulk
mail.1 The question to be determined is whether Town’s attempt to provide
notice was sufficient to satisfy § 4111(e) when Taxpayer failed to receive
the notices and, if not, whether the Town must provide an abatement.

       Taxpayer maintains that Town must provide actual notice to him,
according to both the plain meaning of § 4111(e) and the constitutional
requirements of due process.

Statutory Requirement

       Although there is no reported case law that addresses the notice
requirement of § 4111(e) specifically, cases concerning other statutory
notice requirements are instructive. For example, the Department of Motor
Vehicles is required to send notice by first class mail to the last known
address of a driver whose license is being suspended or revoked. 23 V.S.A.
§ 204(a). The requirement is fulfilled by the act of mailing, “regardless of


       1
         The Town obtained from the U.S. Post Office in Shelburne a Certificate
of Mailing thereby defeating the presumption that the notices were not mailed as
required. 32 V.S.A. § 4111(e).
whether [the driver] actually received notice.” Boutin v. Conway, 

, 564 (1990). Other statutes specify a more exacting standard of notice,
such as certified mail, that would ensure proof of receipt. See, e.g., 24
V.S.A. § 4464(b)(3) (requiring that zoning board decisions be sent by
certified mail); Town of Hinesburg v. Dunkling, 

, 520-22
(1998) (finding that plain meaning of § 4464(b)(3) notice requirement was
met even though intended recipient claimed not to have received the
notice). Section 4111(e), however, contains no such requirement, but only
a presumption that notice was not sent if it was not done by registered or
certified mail. Even this presumption may be defeated without assurance
that the notice was actually received when, as in this case, Town obtains an
official certificate of mailing. The court finds that § 4111(e) requires only
that notice be mailed by Town.

Due Process Requirement

        “‘[D]ue process concerns arise whenever the state deprives an
individual of an interest in the use of real or personal property.’” Hegarty v.
Addison County Humane Soc’y, 

, 411 (2004) (quoting Town of
Randolph v. Estate of White, 

, 285 (1997)). Three factors are
considered to determine what process is due: “(1) the private interest
affected by the official action, (2) the risk of an erroneous deprivation of
the interest under the procedures used, and (3) the governmental interests
involved, including fiscal and administrative burdens.” Town of 

. A fundamental requirement of due process “‘in any
proceeding which is to be accorded finality is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their objections.’” 

(quoting Mullane v. Cent. Hanover Bank & Trust Co., 

,
314 (1950)).
        Taxpayer cites several Vermont cases that address the adequacy of
information contained within a notice, e.g., Town of 

, but not the adequacy of delivering the notice. The standard of
inquiry for delivery of notice was recently articulated by the Second Circuit
as:

       whether the state acted reasonably in selecting means likely to
       inform the persons affected, not whether each property owner
       actually received notice. In the context of a wide variety of
       proceedings that threaten to deprive individuals of their property
       interests, the Supreme Court has consistently held that mailed
       notice satisfies the requirements of due process. As notice by mail
       is deemed to be reasonably calculated to reach property owners,
       the state is not required to go further, despite the slight risk that
       notice sent by ordinary mail may not be received.

Akey v. Clinton County, New York, 

, 235 (2d Cir. 2004)
(internal citations omitted). The Akey court applied this standard to notice
of foreclosure proceedings and held that, where the state had evidence that
the notice was properly addressed and mailed, due process requirements
were met. 

three factors of due process, the mailing to Taxpayer
was sufficient. In the present case, Taxpayer’s interest at stake is
significantly less than foreclosure (one year’s tax rate). There is some risk
of an erroneous deprivation of interest—i.e., an incorrect reappraisal—as
this case demonstrates. However, that risk is outweighed by the fiscal and
administrative burden to Town if it were required to ensure receipt of all
notices of reappraisal combined with the lesser interest of Taxpayer at
stake. Town’s attempt to notify Taxpayer of the reappraisal did not violate
the requirements of due process.

                                    ORDER

     Accordingly, summary judgment is granted in favor of appellee
Town of Shelburne.
Dated at Burlington, Vermont this ____ day of June, 2005.

                                 ____________________________
                                 Hon. Richard W. Norton
                                 Presiding Judge