Petition 23: the Cloutier Petition

Additional commentary by Timothy Horrigan

(member of the House Petitions & Redress Committee)



PETITION 23
PETITION FOR REDRESS OF GRIEVANCE

TO: The Honorable House of Representatives
FROM: Petitioner Representative Daniel C. Itse, Rockingham 9
DATE: October 17, 2011
SUBJECT: Grievance of Bill and Mary Cloutier, Epping, New Hampshire

Your Petitioner Representative Itse on behalf of Bill and Mary Cloutier of Epping, hereinafter presents the following summary of their grievance involving an appraisal of real property in the town of Epping and invokes the constitutional authority and duty of the Honorable House of Representatives pursuant to Articles 31 and 32 to bring about redress:

Grievance involving an adjustment by the town of Epping to the appraised value of real property owned by Bill and Mary Cloutier, which occurred after the expiration of the period to contest the appraisal. The town of Epping has denied Bill and Mary Cloutier their due process rights by its timing of the appraisal and by its denial of Bill and Mary Cloutier's request for access to records necessary to contest the appraisal.

Wherefore, your Petitioner prays that the House of Representatives consider this proposed remedy:

Respectfully submitted by Petitioner Representative Itse on Behalf of Bill and Mary Cloutier.

The dispute which led to this petition is not the Cloutiers' first legal entanglement with the Town of Epping. They own the Pine and Pond Mobile Home Park near the junction of Routes 125 and Route 101. Almost 30 years ago, in 1983, they were the subject of a federal case, "Cloutier vs. Town of Epping (714 F. 2d 1184.)"— and that case dealt with events dating back to 1965.

The park's location makes tax assessment even more controversial than it usually is. Route 101 became the state's only east-west freeway less than two decades ago. Until 1994 Route 101 was a dangerous two-lane road and Epping was a sleepy rural village. Just in the last few years, Epping has become a significant commercial and retail hub, which means land on Route 125 near the freeway is much more valuable than it used to be. This is good when you sell the land, and this is also good when you rent it out to commercial or retail clients. But it's bad too, since this drives your property tax up.

At the hearing on February 23, 2012, Mary Cloutier submitted the following statement:

STATEMENT: PUBLIC HEARING ON PETITION 23


PETITION FOR REDRESS OF GRIEVANCE February 9,2012

State Of New Hampshire House of Representatives
House Committee on Redress of Grievances


To the Members of this Committee:

My name is Mary Cloutier and I am representing the interests of my husband, Wilfred Cloutier, Pine & Pond, Inc. and the Cloutier Pine & Pond Park, LLC.

Bill Cloutier established the business and began the development of an adult manufactured housing park forty-three years ago which is currently a 55+ land lease community. There has never been any tax burden to the school system. We provide our own road maintenance, street lighting and trash removal for 123 households. The park is connected to the Town water and sewer system. These services are included in the lot rent, although the business pays approximately $60,000 annually to the Epping Water and Sewer Department. This property known as Pine & Pond Park, identified in the Town of Epping records as map 23, lot 39, located at 290 Calef Highway is the parcel of land reassessed in 2010 that is subject of the petition before you.

This petition lists three requests for remedial consideration. Because of the sequence of events I would like to comment on each but in a revised order.

All property owners in the Town of Epping were advised in a letter dated April 16, 2010 of a town-wide revaluation to be conducted by Vision Appraisal Technology, Inc. Accordingly the first correspondence from Vision Appraisal was a questionnaire requesting extensive income and expense information from our business financial records. After consulting with our accounting firm, Brayman, Houle, Keating and Albright, PLLC, located in Nashua, NH, it was determined that the questionnaire as presented to us was irrelevant to establishing property assessment value on the subject property. We responded to the Epping Board of Selectmen by letter dated July 19, 2010.

A notice dated August 2, 2010 stated a proposed assessed value of $2,551,300 on Pine & Pond Park. It was also stated that hearings could be scheduled through August 13,2010 to review the new assessment. We did have a meeting with one of the assessors, but not regarding this specific assessment. We were satisfied that the new evaluation was reasonable.

The next notice from Vision Appraisal was October 8,2010. (Nearly 2 months after the August 13th deadline for hearings) The revised assessed value was $2,950,700, an approximate $400,000 increase with no explanation. This got our attention! Taxes were due to be paid by December 10,2010.


In our letter to the Board of Selectmen dated December 13, 2010, it says: "obviously, the period for making an appointment had lapsed. This procedure is contrary to my understanding of the review process".

After numerous verbal requests at the town offices for documentation justifying such a dramatic change, there was absolutely no information provided to us. (Quote from contract between Town of Epping and Vision Appraisal Technology, Inc., Section 3.5.4: ""...the company shall make available to all property owners the documentation related to their individual valuation."

In an e-mail from Vision Appraisal to Town Administrator Dean Shankle dated February 4,2010 and forwarded to us on February 17,2011, Vision Appraisal attempted to set forth an explanation for their actions. It is our position that their rationale presented is neither reasonable nor factual. I have already addressed items land 3. Item 2 raises more questions than answers. How can they arbitrarily reclassify one acre of land from Rural Residential to Highway Commercial? Isn't this a re-zoning issue? Where did they get the authority to make this change resulting in such a substantial change in value, or was it by statistical analysis? Item 4 indicates: "A property value could change, if other same type properties came into a hearing resulting in a change ". To our knowledge, no other like property was ever involved. No response has ever been forthcoming.

In order to preserve our rights, an Abatement Application to Municipality form was filed with the Town of Epping on February 21, 2011. A scheduled Board of Selectmen meeting, February 28, 2011, attended by representatives of Vision Appraisal and MRI, another appraisal firm contracted by the town to review abatement requests, was supposed to lay out a plan for submittal of questions and corresponding answers. Although we continued to ask, the answers were never produced.

In a letter from Administrator Dean Shankle dated March 24, 2011 it is stated that there are documents in the Town Hall relative to the Epping revaluation that we could view during regular business hours. These documents, although informative, were broad and very general, not specific to our complaint.

After retaining legal counsel, a letter dated May 11, 2011 was submitted to the Board of Selectmen from Attorney Sumner F. Kalman addresses two legal issues. First, "the new Hampshire Supreme Court has declared a 'Doctrine of Estoppel' which 'has been applied to municipalities to prevent unjust enrichment and to accord fairness to those who bargain with the agents of municipalities for the promises of the municipalities'". The second issue involves the breach of a "unilateral contract...in which one party ...undertakes aperformance without receiving in return any express engagement or performance from the other. " In addition, Attorney Kalman reaffirms our position that there was a violation of the "Right-To Know Law"(RSA 91-A:4) raised in our letter of March 20 2011 to the Board of Selectmen.

A meeting of the Board of Selectmen was held on May 16,2011 at which time a motion was passed to "give Town Administrator Shankle the authority to find a third assessor for another opinion regarding [this] abatement." This appraisal was completed by Jeffrey W. Leidinger of

Leidinger Appraisals, Canterbury, New Hampshire, in the amount of $2,500,000. (Lower than either of the appraisals done by Vision Appraisal!)

As a final attempt to resolve the complaint locally before the July 1 deadline for response from the Board of Selectmen and prior to our decision to file a complaint with the Superior Court rather than the Board of Tax and Land Appeals a meeting was held on June 27,2011 at which time the Board voted unanimously to accept the new appraisal and abate the taxes paid plus interest accrued. This action resolved item I. on the petition before you. However, there are still damages in the form of necessary legal expenses.

Most importantly, Bill Cloutier and I feel vehemently that an unnecessary injustice occurred in the exercise of a flawed or wrongly executed process throughout the ordeal that must be investigated, and if necessary either by amendments to existing legislation, or new legislation is in order to protect the taxpayer's rights. We do not want this to happen to us again, nor do we want anyone else to experience the same injustice. We ask for your deliberation on this important matter, and willingly submit the attached documentation for your consideration.

Respectfully,
Wilfred Cloutier
Mary S. Gloutier



This was one of the first petitions the committee took dispositive action on in 2012. We discussed it for a long time. But in the end we all agreed that nothing much needed to be done for the Cloutiers, since the third assessment was mutually acceptable to the Cloutiers and the town. The report on the petition (as printed in the April 20, 2012 House Calendar was as follows:

Petition #23:  grievance of Bill and Mary Cloutier, Epping, New Hampshire.

REPORT

Grievance Founded.

Committee Findings:

The Cloutier's complaint of an assessment that doubled their property value and was sent to them after their opportunity to question it had passed was acceded to by the town which then corrected the wrongful appraisal and ended their association with the assessing company responsible, calling on other towns to do the same.  Vote 9-0.


Rep. Harry B. Hardwick for the Committee



The report was unanimous, but it became controversial anyway. This report first attracted the attention of the Democratic caucus leadership because it read like a 6th grader had written it, and because it was almost incomprehensible. Moreover, insofar as any actual information could be parsed from the one-sentence report, it seemed to contain one or two glaring inaccuracies. Epping never actually ended its association with Vision Appraisal and as far as I know has no plans to do so. Also, the appraisal which got overturned was only 20% higher than the final one, not 100%.

An even bigger problem was the number of votes: only 9 representatives voted. A quorum is supposed to be 50% of the committee plus one. The official roster of the committee had 18 names on it at the time of the vote. (Admittedly, this total included one member who submitted a letter of resignation which was never accepted, along with two others who never showed up for even one meeting.) I got up during the April 25 session day and challenged the validity of the vote, even though I was one of the 9 reps who voted unanimously. The Speaker won the floor fight.

Other 2012 Petitions:



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