Weekly Edition

Prosecutors on the spot

Prosecutors have extraordinarily broad discretion in criminal cases but none at all under Virginia Code § 58.1-3003. That law requires a commonwealth’s attorney to appeal “an order for the imposition of taxes” by a local governing body if he receives a petition signed by one percent of the voters in a locality.

The statute has been used rarely but voters in Accomack and New Kent counties have filed petitions with their prosecutors, Gary A. Agar in Accomack and C. Linwood Gregory in New Kent.

In both localities, citizens are mad about high reassessments of their real estate.

Agar, facing a capital murder trial, turned the file over to an assistant, Matthew C. Brenner. Brenner and Gregory dutifully filed the appeal in their respective circuit courts, but they are approaching it very differently.

Gregory has filed a motion to withdraw that is scheduled to be heard this week. He alleged a conflict in that his office receives support from the county. In the event of a successful appeal, “the office budget of the Commonwealth’s Attorney might be adversely affected,” he said.

Perhaps more importantly, Gregory said he is concerned that neither existing law nor a good faith argument for its modification or reversal can support the use of the statute “as a means to assail reassessment of real property as lacking in uniformity and fair market value.” For that reason, the action might be deemed frivolous and subject him to sanctions under § 8.01.271.1, Gregory said in his motion to withdraw.

“I don’t see how you can equate assessment and tax levy,” he said in an interview last week.

That essentially is the argument that Jeffrey M. Summers, the New Kent county attorney, and Mark B. Taylor, his counterpart in Accomack, have made in responses to the notices of appeal. They contend that § 58.1-3003 applies to the tax levy and not to errors in assessments.

Summers suggests that the levy might be subject to challenge if the board of supervisors had failed to follow the procedures state law requires in setting the tax rate, such as imposing a rate that would collect more than 101 percent of the previous year’s real estate taxes without holding a public hearing.

But the remedy of a taxpayer for what he views as an inaccurate assessment of his property is an appeal to the county board of equalization, Summers argued.

“You can’t use this statute to go where they want to go,” he said in an interview last week. He noted that the previous assessment occurred four years ago when a building boom in the county had just gotten started.

Brenner said he does not share Gregory’s concern based on “some of the evidence that various citizens brought to me.” He has filed a 26-page brief asking Circuit Judge Glen Tyler to throw out the tax levy because of alleged errors in the countywide assessment conducted by Tri-County Appraisals Inc., the firm the county hired to do the work.

In his reply to the notice, Taylor wrote, “The Statute does not expressly provide, nor should it be read to provide, a means of attacking the valuation of all of the 40,051 individual units of real property to which the tax levy is applied in Accomack County.”
He added, “The Petition mounts an attack upon limited, selected valuation issues that should properly be addressed in administrative, quasi-judicial, or judicial real estate assessment appeal as provided for in Virginia law; it is not properly an appeal of the Accomack County real estate tax levy, per se.”

The tax base more than doubled from the previous assessment, Taylor said, which is not surprising since the 2006 Assessment/Sales Ratio study showed that the median real estate assessment in Accomack was only 37.5 percent of the real estate sales price there.

In fact, a major goal of the reassessment was to get assessments closer to fair market value, and the real estate tax rate was lowered to reflect the higher assessments, he said in an interview.

A major concern of residents challenging the levy appears to be the way Tri-County Appraisals assessed waterfront property, Taylor said. The assessments generally give greater weight to the status of a parcel as waterfront property than to the size of the parcel, Taylor noted, a concept that some residents have difficult acknowledging.

Tri-County Appraisals also assessed the real estate in New Kent, and the expiration of its state license as an appraiser during the time of the assessments is an issue in both localities. Summers contends that the status of the company is irrelevant because the principal who actually conducted the appraisals was licensed during the reassessment.

“This may be a matter of professional embarrassment, or perhaps even professional discipline, for Tri-County Appraisals Inc., but it does not affect the board of supervisors’ levy,” Summers wrote.

© Copyright 2008, by Virginia Lawyers Media, all rights reserved