MAC

Not to be confused with reconsideration of a vote taken at town meeting, a request for reconsideration to an Appropriate Municipal Panel (AMP) (e.g., a development review board, zoning board of adjustment, or planning commission performing development review) can result in the reopening of a hearing or a swift rejection. The law provides towns with an expedited process to quickly reject frivolous appeals or requests to reconsider a zoning application that has already been ruled on without the necessity of holding a new hearing.  

Specifically, the law allows an AMP to reject an appeal or reconsideration of its own decision from an interested party without holding a new hearing if the issues raised by the appellant (the party appealing) were already decided or involve substantially the same facts. The AMP must issue its denial, along with its findings of fact, within 10 days of when the notice of appeal was filed, to the applicant and the appellant by certified mail and by regular mail to all others appearing and having been heard at the original hearing. 24 V.S.A. § 4470(a).  

This pathway is only to be used if an AMP is going to reject a request for an appeal or reconsideration of its decision. If the AMP agrees to hear an appeal or reconsideration of its decision, it will need to either reopen the hearing or to warn an entirely new one.  

The law allows an AMP to reject an appeal or reconsideration of its own decision from an interested party without holding a new hearing if the issues raised by the appellant (the party appealing) were already decided or involve substantially the same facts.

A hearing can only be reopened prior to the expiration of the time for appeal of the AMP’s decision. The Vermont Environmental Court has allowed AMPs to reopen hearings, even after a written decision had been rendered, on the basis of judicial and litigant economy. “It is much better practice to avoid unnecessary remands by allowing a board, which realizes that it has acted on incomplete or inadequate information, or is informed of previously-unavailable evidence, to reopen the initial proceeding if such a procedure may result in a sounder decision.” An AMP must vote on whether to reopen a hearing, though it need not provide notice of the meeting at which it holds that vote. Once a hearing is reopened, the AMP must also allow all interested persons to present any additional evidence and make whatever arguments they may have, just as in the first hearing. So long as these conditions are met, “there is no prejudice either to parties favoring the original decision, nor to parties intending to appeal the original decision.” In re: Appeal of Janet C. Dunn, et al., Docket No. 2-1-98 Vtec (Vt. Envtl. Ct., Mar. 8, 1999). 

One complicating factor to reopening a hearing is the tolling of the so-called “deemed approval” period. AMPs must render a written decision within 45 days from the close of a hearing or else face the specter of an applicant/appellant asserting the remedy of deemed approval in Environmental Court. 24 V.S.A. § 4464(b)(1). 

As in many states in the country, Vermont towns can put properties up for an auction-style sale (“tax sale”) to recover delinquent property taxes. Since the purpose of tax sales is to make towns financially whole, they can only keep that which they are owed. The total amount of taxes, interest, and fees establishes the minimum acceptable bid at sale. Any surplus bid over and above this amount must be returned to the taxpayer. Because delinquent properties can be sold for this minimum bid amount, they often end up selling for far less than their fair market value.  

This is exactly what happened in the recent United States Supreme Court case of Pung v. Isabella County, Michigan. In this case, the defendant, Isabella County, sold the property of the plaintiff (Pung) at a tax sale after Pung failed to pay approximately $2,000 in property taxes. Although the property was assessed at $195,000, the winning bid at tax sale was only $76,000. Isabella County returned the net surplus of what it received and what it was owed: $74,000 to Pung. Pung sued the county in federal court, arguing that they should have received the difference between the property’s fair market value ($195,000) and the amount of delinquent taxes and fees owed the county ($2,000) – approximately $193,000 – and the failure to do so violated the Takings Clause of the Fifth Amendment to the U.S. Constitution by not providing them with just compensation for their property. The lower courts disagreed and ruled that Pung should only be paid the surplus proceeds from the tax sale (the difference between the winning bid at tax sale and the amount of taxes due to the county), not the property’s fair market value. Pung appealed to the U.S. Supreme Court. 

Nothing in either the case law or past practice suggested that fair market value must be used in determining the price for a tax sale.

The U.S. Supreme Court (Court) disagreed with Pung, holding that the proper baseline for measuring “just compensation” following a tax sale is the final auction tax sale price, not the property’s hypothetical fair market value. In so ruling, the Court noted a long history of governments using the seizure and sale of property as a valid tax collection method, and nothing in either the case law or past practice suggested that fair market value must be used in determining the price for a tax sale.  

Additionally, the Court pointed out that using fair market value as the price point for calculating how much money should be returned to delinquent taxpayers whose property is sold at tax sale, as Pung suggested, would place an undue burden on governments and make tax sales infeasible. Specifically, the Court said that since the concept of fair market value is constantly shifting and ambiguous, it would be impractical for governments to try to make this determination. More importantly, the Court highlighted that doing so would make tax sales a net loss proposition as a tax collection method because the surplus from the sale due back to the taxpayer would almost always be more than the tax debt owed.  

This case is important for Vermont’s towns because it validates their long-held practice, as recommended by this office, of only returning the surplus of the winning bid over the minimum tax sale amount to the delinquent taxpayer and not the difference between the sales price and the property’s elusive fair market value.