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Village at Main Street, the County Wins Round III

It ain’t over till it’s over! This long running battle between a taxpayer and Clackamas County has now spawned three Supreme Court opinions, in the process providing a history lesson on real property assessment in Oregon.

It all starts in 2005, when an employee of the assessor’s office visited an apartment complex under construction in Clackamas County. At that point site improvements were mostly complete, but the buildings were not. The assessor’s office failed to factor the value of those site improvements into the land value of that property for the following two tax years. Realizing this error, in 2007 the assessor added the value of the site improvements as “omitted property”. Taxpayer appealed that decision, resulting in the Supreme Court’s opinion in Village I, holding that the site improvements did not qualify as omitted property. Round one to the taxpayer.

While Village I was pending in the Supreme Court, taxpayer petitioned the Tax Court for attorney fees. The Tax Court granted that petition, finding an award of fees to be appropriate whenever the losing governmental party appeals from a well-reasoned opinion of its Magistrate Division. In Village II the Supreme Court rejected that standard. It also reversed the award, finding the County had an objectively reasonable basis to appeal the magistrates ruling in light of the serious issue of statutory construction addressed in Village I. Round II to the County.

This brings us to Round III. In addition to the omitted property issue, taxpayer also appealed the valuation of improvements to its property. That litigation was stayed during litigation of the omitted property issue. The Supreme Courts Village I decision now brought that issue front and center. But first the legislature tossed a wrench into the works!

When the improvement value was appealed, Oregon limited the issues on appeal to only the component of assessed value challenged by the party filing the appeal. This rule could result in an under assessment if the total valuation was correct, but that assessment was not correctly allocated between land and improvement values. During the 2011 session the legislature addressed this issue, amending ORS 305.287 to permit the non-appealing party raise the value of the unappealed component. This change took effect while taxpayer’s improvement value appeal was pending before the Regular Division of the Tax Court. Citing that amendment, the County moved to raise the issue of land value in response to taxpayers improvement value appeal. The Tax Court denied that motion, interpreting the amended statute as applying only to appeals to the Magistrate Division. This is the issue decided yesterday by the Supreme Court in Village III. Its conclusion, the unappealed value component can be raised at any level of appeal except for an appeal before the Supreme Court. Round III to the County.

Yesterday’s opinion ended by remanding this case to the Tax Court for further proceedings. Standby for round IV!

Note: Full disclosure, the author was involved in some of the aspects of this litigation.