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District of Columbia v. W.T. Galliher & Bro.

March 30, 1995

DISTRICT OF COLUMBIA, APPELLANT
v.
W.T. GALLIHER & BROTHER, INC., APPELLEE



Appeal from the Superior Court of the District of Columbia. (Hon. Eugene N. Hamilton, Trial Judge).

Before Terry, Steadman, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: The District of Columbia appeals from a summary judgment requiring it to reduce the assessed value of appellee's property by more than five million dollars for Tax Year 1989, *fn1 and declaring that appellee is entitled to a property tax refund of $103,317.93 plus interest. The District contends that summary judgment was inappropriate because there was a genuine issue of fact as to the market value of the property, and that the trial court violated D.C. Code § 47-3303 (1990) by failing to make written findings of fact in support of its decision. Appellee W.T. Galliher & Brother, Inc. ("Galliher"), maintains that the actual issue before the trial court was whether the eventual ruling of the Board of Equalization and Review ("the Board") on Galliher's motion for reconsideration could be given legal effect after the Board admitted plain error in its initial ruling, particularly when the District induced the Board not to act on Galliher's motion in a timely manner by misinforming the Board as to the actual date of the Mayor's certification of the tax roll. Since this case presents strictly legal issues, Galliher contends that the trial court correctly granted its summary judgment motion. We agree with Galliher and affirm the judgment.

I

Galliher owns an office building at 1920 N Street, N.W. The building is situated in a medium-high density "special purpose" zoning district (SP-2), in which the zoning regulations generally limit the occupancy of office space to non-profit organizations, labor unions, and professional persons such as doctors or lawyers. See 11 DCMR § 508.1 (1994). *fn2 General retail or commercial occupancy is not allowed in an SP building except for "accessory uses" such as newsstands or barber shops. 11 DCMR § 502.1 (1994). *fn3 For Tax Year 1989, the District assessed the value of Galliher's property at $23,913,000, up from the previous year's assessment of $17,100,000.

On April 4, 1988, Galliher appealed the assessment to the Board, claiming that the assessor had failed to take the building's zoning limitations and lack of "upside potential" into account when calculating its fair market value. *fn4 Moreover, Galliher maintained that the building was not located in a "prime commercial neighborhood" and pointed out that its net income had declined during the previous four years. After a hearing, the Board on May 1 upheld the assessment, stating in its order that "the majority of the leases expire between 1989-1990, the appraiser (owners) did not adequately consider the upside potential at that time." *fn5

Galliher filed a motion for reconsideration with the Board, claiming that "all of the leases expiring between 1988-1989, with one exception, contain renewal options. The so-called 'upside potential' considered by the assessor, and endorsed by the Board, does not exist." Additionally, Galliher reiterated that the District's tax assessor had failed to consider the building's zoning limitations and its less than ideal location.

In proceedings before the Board, opposing parties are required to respond to motions for reconsideration within two business days after receipt. 9 DCMR § 2020.3 (1994). Since Galliher's motion was filed on Thursday, June 9, the deadline for filing a response was Monday, June 13. The Office of the Corporation Counsel, however, did not file the District's opposition until June 27, two weeks late, and even then it neglected to serve a copy of the opposition on Galliher. In its response, the District argued that Galliher's motion for reconsideration did not present any new arguments and that, in any event, the Board's first decision did not amount to plain error. *fn6 The District also maintained that, under 9 DCMR § 2020.4 (1994), the Board could not consider a motion for reconsideration after the certification of the tax roll by the Mayor, which it said had occurred on June 14. In fact, however, the tax roll had not yet been certified when the District filed its opposition. *fn7

On July 11, 1988, the Board sent a letter to Galliher's counsel stating that it had "decided to grant" the motion for reconsideration because its original decision "involved plain error." The Board concluded, however, that it lacked jurisdiction to grant the relief requested:

Due to the delay in response from the Office of Corporation Counsel on behalf of the Department of Finance and Revenue (D.F.R.) and the confusion and conflicting dates of certification of the Assessment Roll from D.F.R. and Corporation Counsel, the Board was unable to act on these cases prior to the certification of the Assessment Roll, and the Board no longer has jurisdiction on these cases for Tax Year 1989.

The Board went on to say that, if it had jurisdiction, it would have found that the value of Galliher's property was $18,823,447, not the originally assessed $23,913,000. Galliher's counsel then sent a letter to the Department of Finance and Revenue requesting that "the determinations made by the Board, as reflected in the [July 11] letter, be implemented" for Tax Year 1989. Several weeks later, after counsel's letter had elicited no response, counsel sent a similar request to the Office of Real Property Taxes. That request also was ignored or overlooked, and the District proceeded to tax Galliher's property at the assessed value of $23,913,000.

Galliher paid the tax for Tax Year 1989, totaling $485,433.90, and filed the instant petition in the Superior Court challenging the assessment. *fn8 In its petition Galliher alleged that the Corporation Counsel was responsible for the Board's erroneous belief that it lacked jurisdiction to rule on the motion for reconsideration. Galliher also reiterated many of the substantive challenges to the asssessment which it had previously raised before the Board. In its prayer for relief, Galliher asked the court to reduce the assessed valuation of the property to the amount stated by the Board in its July 11 letter and to order a refund, with interest, of the excess taxes paid.

Following discovery, Galliher moved for summary judgment. In support of its motion, Galliher contended:

Based upon the government's delay and misrepresentations and the Board's finding that its initial decision was plainly erroneous, petitioner is entitled, as a matter of law, to have [the District] implement the Board's decision and to refund to petitioner ...


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