Kenyon C. Bolton III v. Town of Scarborough

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 172
Docket: Cum-19-73
Argued: September 24, 2019
Decided: December 23, 2019

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN,* JABAR, and HJELM, JJ.

KENYON C. BOLTON III et al.

v.

TOWN OF SCARBOROUGH

ALEXANDER, J.

[¶1] Three years ago, we concluded that the Town of Scarborough had

engaged in an unlawful and discriminatory assessment practice that violated

the equal protection rights of Kenyon C. Bolton III and other plaintiffs

(collectively, the Taxpayers); based on this conclusion, we remanded the

matter to the Scarborough Board of Assessment Review “for a determination of

the appropriate abatements” to address the inequality in tax treatment

affecting the Taxpayers as a result of the discriminatory practice. Angell Family

2012 Prouts Neck Tr. v. Town of Scarborough, 2016 ME 152, ¶¶ 1-2, 15-21, 36,

*
Although not available at oral argument, Justice Gorman participated in the development of this
opinion. See M.R. App. P. 12(a)(2) (“A qualified Justice may participate in a decision even though not
present at oral argument.”).
2

149 A.3d 271 [hereinafter Angell]; Petrin v. Town of Scarborough, 2016 ME 136,

¶¶ 2, 8-9, 18, 23-32, 45, 147 A.3d 842.

[¶2] In this consolidated appeal, we now consider whether the

abatements formulated by the Board and reviewed by the Superior Court after

our remand pass constitutional muster. Because we conclude that the Board’s

decision granting the Taxpayers eight percent abatements to their land values,

as recommended to the Board by the Town, satisfies constitutional

requirements, we vacate the judgment of the Superior Court (Cumberland

County, Horton, J.) and remand with the direction to affirm the Board’s original

decision after remand.

I. CASE HISTORY

[¶3] The issues before us stem from the Town’s former practice of

allowing any owner of two separate but abutting parcels, one of which was

undeveloped, to request that those parcels be valued as if they were a single lot

to attain a lower overall assessment than if the parcels were valued separately.

See Angell, 2016 ME 152, ¶¶ 15-16, 149 A.3d 271; Petrin, 2016 ME 136, ¶ 8,

147 A.3d 842.

[¶4] In our previous opinions, we concluded that the Board had erred in

denying the Taxpayers’ abatement requests because the abutting lot program
3

violated the statutory requirement that each parcel of real estate be assessed

separately, see 36 M.R.S. § 708 (2018), and the constitutional requirement that

real estate be assessed at its just value, see Me. Const. art. IX, § 8. See Angell,

2016 ME 152, ¶ 19, 149 A.3d 271; Petrin, 2016 ME 136, ¶¶ 26-29, 147 A.3d 842.

We further held that because the abutting lot program violated Maine law and

imposed property taxes on the Taxpayers at rates that were not imposed on

similarly situated owners of lots that happened to be abutting other lots of

those owners, it contravened the Taxpayers’ rights to equal protection. See

Angell, 2016 ME 152, ¶¶ 20, 36, 149 A.3d 271; Petrin, 2016 ME 136, ¶¶ 29-31,

45, 147 A.3d 842.

[¶5] Respecting our direction on remand that it provide the Taxpayers

with appropriate abatements to address this inequality, the Board conducted

hearings on the issue in early 2017. Because the Town had continued to

implement the program, and most of the Taxpayers had continued to file yearly

abatement requests during the intervening years between their initial requests

and our decisions in 2016, the parties agreed to expand the scope of the

proceedings to allow the Board to determine the appropriate abatements for

the four tax years in question—which was labeled the “abatement period.”1

1 Those tax years were 2012-13, 2013-14, 2014-15, and 2015-16. In our 2016 decisions, we said
only that the Taxpayers were “entitled to an abatement for the 2012 tax year.” Angell Family 2012
4

The Board received exhibits from both sides and heard extensive testimony

from the Town’s Special Deputy Assessor regarding the impact of the abutting

lot program on both the Town in general and each of the Taxpayers who were

parties to the proceeding.

[¶6] At the conclusion of the hearings, the Town urged the Board to grant

the Taxpayers eight percent abatements to their land values because the total

dollar amount of such abatements would be approximately equal to the total

dollar amount of taxes avoided by the owners participating in the abutting lot

program over the abatement period. The Taxpayers contended that they were

entitled to 31.48 percent abatements to their land values, which, by their

calculations, was the average discount that the abutting lot program

participants received to their combined land values.

[¶7] In May 2017, after deliberating, the Board voted unanimously to

adopt a written decision granting the Taxpayers eight percent abatements to

their land values—exclusive of any improvements—for each year during the

Prouts Neck Tr. v. Town of Scarborough, 2016 ME 152, ¶ 21, 149 A.3d 271; Petrin v. Town of
Scarborough, 2016 ME 136, ¶ 32, 147 A.3d 842. The Board’s decision to consider abatements for the
other years in which the discriminatory program affected the Taxpayers is a reasonable
extrapolation of our directions. Complicating matters slightly, not all of the Taxpayers filed
abatement requests for each of the years at issue. In their brief, the Taxpayers assert that “the parties
have agreed that those variances present only a ministerial issue, [and] are not material to the
remedy here.”
5

abatement period in which they filed abatement requests. The Board explained

that because the combined value of these abatements was equal to the total

amount of taxes avoided by the abutting lot program participants during the

abatement period, the eight percent figure provided each Taxpayer with a

proportionate share of the total benefit of the program.

[¶8] The Taxpayers appealed to the Superior Court, see 36 M.R.S. § 843

(2018); M.R. Civ. P. 80B, which entered a judgment vacating the Board’s

decision based on its conclusion that the Board’s abatement formula was

unreasonable because it made the percentage discount a function of the

number of appealing Taxpayers. The court remanded the matter to the Board

with instructions to provide the Taxpayers with abatements that would place

them “in a position roughly equal to the favored abutting lot owners.”

[¶9] On remand from the Superior Court, the Board held an additional

hearing where the parties mostly relied on the evidence introduced in the prior

proceedings. The Taxpayers continued to assert that their proposal of 31.48

percent abatements was the most appropriate way to remedy the inequality.

The Town maintained that the Board’s decision to grant eight percent

abatements was legally sufficient, but alternatively suggested a different
6

method for calculating abatements to comply with the Superior Court’s

directions.

[¶10] Following deliberations, the Board unanimously voted to adopt a

written decision in June 2018. In its decision, the Board accepted “the Superior

Court’s conclusion that . . . [its] May 10, 2017 decision was unreasonable, and

not in conformity with Maine law” and determined that the Taxpayers were

entitled to 14.74 percent abatements to their land values. To reach that

percentage, the Board made the following calculations for each year of the

abatement period:

1. It divided the aggregate tax savings for abutting lot program
participants by the number of program participants to calculate the
average tax dollar savings per abutting lot program participant.

2. It multiplied the average tax dollar savings per abutting lot program
participant by the number of appealing Taxpayers to calculate the
average abutting lot program benefit.2

3. It divided the average abutting lot program benefit by the total value
of the appealing Taxpayers’ land multiplied by the applicable mil rate
to calculate the percentage reduction.

The Board then averaged the yearly percentage reductions, which resulted in

the 14.74 percent figure.

2As the Taxpayers point out, it is a misnomer to call this figure the average abutting lot program
benefit because its formula includes the number of Taxpayers who filed abatement requests. The
Town more aptly calls the figure the “Total Abatement Principal.”
7

[¶11] Once again, the Taxpayers appealed to the Superior Court. The

Town also appealed to preserve its argument that the original eight percent

abatements were sufficient. In January 2019, the Superior Court entered a

judgment affirming the Board’s decision granting the Taxpayers 14.74 percent

abatements after finding that the Board’s formula was rational and reasonable.3

The Superior Court’s judgment being final, see M.R. Civ. P. 80B(n), the

Taxpayers appealed to us, and the Town cross-appealed seeking reinstatement

of the eight percent abatements, see M.R. App. 2B(c)(1), 2C(a)(2).4

II. LEGAL ANALYSIS

[¶12] The Taxpayers contend that the Equal Protection Clause mandates

that they be extended the same discounts that were provided to participants in

the abutting lot program. They assert that neither of the Board’s abatement

formulas accomplishes this, and that the most appropriate abatements would

provide them with a 31.48 percent discount to their land assessments, which

3 The court modified the interest rate calculation in the Board’s second decision, but that issue is
moot in light of our conclusion that the Board’s original decision provided adequate relief. See infra
n.9.
4 M.R. Civ. P. 80B(m) provides that when, as here, “the Superior Court remands the case for

further action or proceedings by the governmental agency, the Superior Court’s decision is not a final
judgment, and all issues raised on the Superior Court’s review of the governmental action shall be
preserved in a subsequent appeal taken from a final judgment entered on review of such
governmental action.”
8

they maintain is the average percentage discount received by the abutting lot

program participants.

A. Standard of Review and Statutory Requirements

[¶13] When a party appeals a decision of the Superior Court in an action

seeking review of decisions by a municipal Board of Assessment Review, “we

review the Board’s decision[s] directly for abuse of discretion, errors of law,

and sufficient evidence.” Petrin, 2016 ME 136, ¶ 13, 147 A.3d 842. “That the

record contains evidence inconsistent with the result, or that inconsistent

conclusions could be drawn from the evidence, does not render the Board’s

findings invalid if a reasonable mind might accept the relevant evidence as

adequate to support the Board’s conclusion.” Terfloth v. Town of Scarborough,

2014 ME 57, ¶ 10, 90 A.3d 1131 (alterations omitted).

[¶14] Although the Superior Court and the Board gave significant weight

to the requirement of 36 M.R.S. § 843(1) that any abatement provided by the

Board be “reasonable,” our case law suggests that an abatement is reasonable

if it does not represent an abuse of discretion or error of law. See City of

Biddeford v. Adams, 1999 ME 49, ¶¶ 24-25, 727 A.2d 346. Thus, our standard

of review encompasses the reasonableness requirement.
9

[¶15] The more significant effect of section 843 on our review is that it

limits our ability to substitute our own judgment for that of the Board. See

So. Portland Assocs. v. City of South Portland, 550 A.2d 363, 369 (Me. 1988)

(stating that we will not intrude on the authority that 36 M.R.S. § 843(1) grants

to Boards of Assessment Review by substituting our own value estimates or

acting “as final-offer arbitrators” to resolve opposing figures); see also Weekley

v. Town of Scarborough, 676 A.2d 932, 934 (Me. 1996) (holding that courts lack

the authority to determine the just value of properties or “grant relief in the

nature of an abatement”).

[¶16] We find no merit in the Taxpayers’ argument that we should depart

from this deferential standard because the Board is “hopelessly biased” against

them. The aspects of the record that the Taxpayers allege demonstrate “bias”

merely show the Board members—who are not lawyers—grappling with a

complicated area of the law and an equally complex set of facts.

B. Constitutional Considerations

[¶17] As discussed above, we previously determined that the abutting

lot program was unlawfully discriminatory and violated the Taxpayers’ equal

protection rights.5 While our instruction on remand was for the Board to

Although we reiterate our previous conclusion that the abutting lot program violated the Equal
5

Protection Clause, not every tax classification that violates state law violates the Federal Constitution.
10

provide the Taxpayers with appropriate abatements to remedy this inequality,

we recognize that this was a challenging directive given the complicated and

unsettled nature of this area of the law. See Adams, 727 A.2d at 351 (noting that

neither “Maine case law nor the tax abatement statute provide guidance on the

appropriate remedy for unjust discrimination”). The somewhat tortured

progression of this matter after our remand demonstrates a need for further

guidance regarding the range of proper remedies in circumstances like these.

[¶18] The United States Supreme Court has explained that “when

unlawful discrimination infects tax classifications or other legislative

prescriptions, the Constitution simply calls for equal treatment. How equality

is accomplished . . . is a matter on which the Constitution is silent.” Levin v.

Commerce Energy, Inc., 560 U.S. 413, 426-27 (2010). A state “found to have

imposed an impermissibly discriminatory tax retains flexibility in responding

to this determination,” McKesson Corp. v. Div. of Alcoholic Bevs. & Tobacco,

See Armour v. City of Indianapolis, 566 U.S. 673, 687-88 (2012) (cautioning against the risk of
“transforming ordinary violations of ordinary state tax law into violations of the Federal
Constitution”). Generally, a tax classification involving neither a fundamental right nor a suspect
class “cannot run afoul of the Equal Protection Clause if there is a rational relationship between the
disparity of treatment and some legitimate governmental purpose.” Id. at 680 (quoting Heller v. Doe,
509 U.S. 312, 319-20 (1993)). The case at hand presents a rare situation, like in Allegheny Pittsburgh
Coal Co. v. Cty. Comm’n, 488 U.S. 336, 344-46 (1989), where the facts, when evaluated pursuant to the
law, preclude any plausible rational basis for the Town’s policy of valuing properties significantly
below just value on the basis that the properties happen to be abutting other property of the same
owners. See Armour, 566 U.S. at 686-88 (discussing the limited applicability of Allegheny); Nordlinger
v. Hahn, 505 U.S. 1, 14-16 & nn. 6-8 (1992) (same).
11

496 U.S. 18, 39-40 (1990), because how a state “eliminates unconstitutional

discrimination ‘plainly is an issue of state law,’” Levin, 560 U.S. at 427 (quoting

Stanton v. Stanton, 421 U.S. 7, 17-18 (1975)). Indeed, the Supreme Court has

explicitly indicated that its practice is “to abstain from deciding the remedial

effects” of finding “a tax measure constitutionally infirm” to maintain

“federal-state comity.” Id.

[¶19] The Supreme Court has said, however, that the Due Process Clause

requires states “to provide meaningful backward-looking relief to rectify any

unconstitutional deprivation.” McKesson, 496 U.S. at 31. It has also provided

guideposts for determining the appropriate remedy for a discriminatory tax. In

seeking to effectuate equal tax treatment, a state may (1) invalidate and

withdraw the benefits from the favored class, (2) extend the benefits to the

excluded class, or (3) use some other measure. See Levin, 560 U.S. at 426-27;

Heckler v. Mathews, 465 U.S. 728, 740 (1984). In considering these options, it

is important to remember that the Equal Protection Clause imposes no “iron

rule of equal taxation” and encompasses an area of the law where it is often

“impracticable and unwise to attempt to lay down any general rule or

definition.” Bell’s Gap R.R. Co. v. Pennsylvania, 134 U.S. 232, 237 (1890).
12

Accordingly, a remedy that is appropriate in one discriminatory tax case may

not be appropriate in another; each case requires a fact-specific analysis.

[¶20] As for the first option, the Board in this case could not withdraw

the abutting lot benefit to achieve equal tax treatment because it lacked the

authority to retroactively raise the values of the underassessed properties. See

Adams, 1999 ME 49, ¶ 26, 727 A.2d 346 (“The Board only has power to grant

abatements and does not have the authority to remand the case to the assessor

to recompute the tax.”).

[¶21] That brings us to the second option—the one favored by the

Taxpayers—which is to extend the benefit to them. We need not delve into

whether either of the abatement amounts decided on by the Board adequately

extends the benefit of the abutting lot program, because we reject the

Taxpayers’ contentions that such a remedy is necessary or even appropriate in

the circumstances of this case.

[¶22] The Taxpayers suffered no greater harm from the abutting lot

program than every other taxpayer in the Town. Except for the few participants

in the abutting lot program, all of the approximately 8,500 property taxpayers

in the Town paid slightly higher taxes as a result of the improper discounts

provided by the abutting lot program. Additionally, the number of Taxpayers
13

who sought abatements exceeded the number of property owners who

received the benefit of the abutting lot program for each of the four years at

issue. Thus, to extend the benefit in the manner that the Taxpayers suggest

would increase by several magnitudes the negative effect of the abutting lot

program on the nonappealing taxpayers, who bore the same burden of the

original program as the Taxpayers.6 See Williams v. Griffes, 686 A.2d 964, 967

(Vt. 1996) (Morse, J. concurring) (a state “need not blindly sacrifice the interest

of the taxpaying public to the desires of a relative few aggrieved taxpayers”

when determining the appropriate remedy for a discriminatory tax scheme).

To magnify rather than rectify the discriminatory effect of the program would

be an inappropriate mandate under the guise of equality. Cf. Haman v. Cty. of

Humboldt, 506 P.2d 993, 997 (Cal. 1973) (the proper remedy for

discriminatory tax treatment should not increase “discrimination among other

taxpayers”).

[¶23] Of course, providing any abatements will have some effect on

nonappealing taxpayers—that is unavoidable—but for us to hold that

6 The Board supportably found that the Town lost $395,397.90 in tax revenue over the abatement
period as a result of the discounts provided by the abutting lot program. By comparison, the parties
agree that providing the Taxpayers with 31.48 percent abatements to their land values would cost
the Town around $1,600,000.
14

municipalities are required to provide the full extent of the improper benefit in

cases like this could establish a dangerous precedent. Consider if instead of

approximately fifty appealing taxpayers there were 500? It is not an

unthinkable scenario given that the Taxpayers here have no better claims of

discrimination than do the thousands of nonappealing taxpayers who were also

negatively affected by the abutting lot program.

[¶24] Consider also if instead of having a total assessed value of several

billion dollars, the Town had a total assessed value of $100 million?7 With its

substantial tax base, the Town here might be able to absorb the cost of

extending the benefit of the program to the Taxpayers without cutting funding

for critical services or raising taxes significantly, but the same would not be true

for municipalities with less substantial tax bases. In the hypothetical case

involving 500 plaintiff taxpayers, challenging a similar program, in a town with

a $100 million tax base, giving unjust benefits to rectify giving unjust benefits

could substantially compromise the municipality’s capacity to provide essential

services.

7When we issued our decisions in 2016, we noted that the Town of Scarborough’s total valuation
was approximately $3.5 billion. See Petrin v. Town of Scarborough, 2016 ME 136, ¶ 32, 147 A.3d 842.
According to Maine Revenue Services, the Town’s total valuation as of 2019 is $4.3 billion, which is
the third highest of any municipality in the State. See Me. Revenue Svcs., 2019 State Valuation (2019),
https://www.maine.gov/revenue/propertytax/sidebar/2019_state_valuation.pdf (last visited
Dec. 20, 2019).
15

[¶25] What then is the proper remedy? The Supreme Court has

suggested a third option: not withdrawing or extending benefits to achieve

equal tax treatment, but rather using “some other measure.” Levin, 560 U.S. at

426. The best measure of the actual disproportionality borne by the Taxpayers

here is not the discounts provided by the abutting lot program but rather the

effect that those discounts had on the Taxpayers. We alluded to this in our

previous decisions when we said that we were remanding “for the Board to

address the unlawfully discriminatory effect of the Town’s abutting property

program” and described that effect as the “unequal apportionment” of the

municipal tax burden. Petrin, 2016 ME 136, ¶¶ 32-33, 45, 147 A.3d 842. We

suggested then and hold now that the injury to the Taxpayers was not that their

properties were over-assessed in comparison to the properties in the abutting

lot program, but that they paid more than their fair share of taxes as a result of

the discounts that were unlawfully provided by that program.

[¶26] The Taxpayers may be made whole by abatements that refund the

difference between what they paid in taxes and what they would have paid had

the properties in the abutting lot program been assessed at just value. Such a

remedy corrects the equal protection violation by putting the Taxpayers in the
16

position they would have occupied had all taxpayers been treated equally.8 See

MAPCO Ammonia Pipeline v. State Bd. of Equalization & Assessment,

494 N.W.2d 535, 537-38 (Neb. 1993), cert. denied, 508 U.S. 960 (1993)

(approving such a remedy in a similar case of tax discrimination); Keniston v.

Bd. of Assessors, 407 N.E.2d 1275, 1279-80 (Mass. 1980) (holding that

abatements limited to the difference between the amount a taxpayer actually

paid and what he or she “should have paid had a municipality followed lawful

assessment practices,” do not “offend the equal protection clause” even if the

abatements do not provide the same treatment that was provided to “the most

favored class”).

[¶27] This approach also satisfies the requirement of due process that

Taxpayers be provided with meaningful backward-looking relief by refunding

the portion of their taxes resulting from the unconstitutional discrimination.

See McKesson, 496 U.S. at 31. And it accomplishes the purpose of article IX,

section 8 of the Maine Constitution, which “is to equalize public burdens so that

8To the extent that the Supreme Court’s decision in McKesson Corp. v. Div. of Alcoholic Bevs. &
Tobacco, 496 U.S. 18, 22-23, 36-43 (1990), might be read to suggest that this remedy is insufficient,
that case is distinguishable from the one at hand because it involved a state excise tax that
discriminated against out-of-state commerce in violation of the Commerce Clause. See Tuscon Elec.
Power Co. v. Apache Cty., 912 P.2d 9, 26, 29-31 (Ariz. Ct. App. 1995) (distinguishing the remedies
discussed in McKesson from the remedies appropriate in cases involving discriminatory property
taxes).
17

a taxpayer contributes to the entire tax burden in proportion to his [or her]

share of the total value of all property subject to the tax.” Eastler v. State Tax

Assessor, 499 A.2d 921, 924 (Me. 1985).

[¶28] Practically speaking, we recognize that there may be times when

the amount of such abatements may be too insignificant to justify any individual

taxpayer taking action against discriminatory tax schemes, but any remedy

must also avoid unduly burdening other nonappealing taxpayers.

[¶29] The record here reflects that as a result of the Board’s original

decision granting eight percent abatements, a decision recommended by the

Town, the Taxpayers were collectively refunded approximately $380,000

before any interest.9 This amount is more than enough to make the Taxpayers

9 In its first decision, the Board granted the Taxpayers interest on the abatements at a rate of
seven percent from the date of overpayment pursuant to 36 M.R.S. § 506-A (2018), based upon the
Town’s contention that that was the proper interest rate for overpayments. Seven percent is the
interest rate that the Town used when it paid the eight percent abatements, which brought the
collective amount paid to the Taxpayers to approximately $461,000. After the Superior Court’s
remand, however, the Town introduced budget orders for the years at issue showing that the correct
interest rate for overpayments was actually three percent. Thus, the Taxpayers received an extra
four percent in interest, which the Town acknowledges must stand if the Board’s original decision is
reinstated.

There was also some dispute after the Superior Court’s remand about when the interest should
begin to run. If the Town made any error in calculating when the interest began to run when it made
the eight percent abatement payments, the error was rendered harmless by the extra four percent
interest and the fact that the Taxpayers received more money than was necessary to make them
whole.

We find no merit in the Taxpayers’ suggestion that they were somehow entitled to twenty-five
percent interest pursuant to 36 M.R.S. § 504 (2018). The twenty-five percent interest rate provided
18

whole and satisfy all of the above-described constitutional requirements. The

Town has already paid the eight percent abatements and is advocating for the

Board’s first decision. Accordingly, we need not review in detail whether the

Board’s original decision meets the criteria for deciding the appropriate

amount of an abatement in another hypothetical case. Here, where the Board’s

original decision is supported by the Town, it is not outside the reasonable

range of discretion allowed the Board under our precedents.

[¶30] Based on our analysis and in recognition of our deferential

standard of review of the Board’s decision-making, we vacate the Superior

Court’s judgment affirming the Board’s second decision granting 14.74 percent

abatements and remand with the direction to affirm the Board’s first decision.

The entry is:

Judgment vacated. Remanded to the Superior
Court with instructions to affirm the
Scarborough Board of Assessment Review’s
decision granting eight percent abatements.

in section 504 only applies to the recovery of taxes “not raised for a legal object,” and there has been
no suggestion that the Town collected taxes for an illegal purpose.
19

Jonathan A. Block, Esq., Pierce Atwood LLP, Portland; John B. Shumadine, Esq.,
and Sage M. Friedman, Esq., Murray Plumb & Murray, Portland; and William H.
Dale, Esq. (orally), Jensen Baird Gardner & Henry, Portland, for appellants
Kenyon C. Bolton III et al.

Michael A. Hodgins, Esq. (orally), Eaton Peabody, Bangor, and Zachary B.
Brandwein, Esq., Bernstein Shur, Portland, for appellant Town of Scarborough

Cumberland County Superior Court docket numbers AP-2018-24, AP-2018-26, AP-2018-30, and AP-
2018-31
FOR CLERK REFERENCE ONLY