Submitted: March 1, 2018
Appeal from the New Castle County Board of Assessment
Michael J. Issacs, Esquire, Attorney for Appellant.
W. Rushdan, II, Esquire, Attorney for Appellant.
Singer, Esquire, Attorney for Appellees.
Clarke Streett, Judge.
appeal from the New Castle County Board of Assessment Review
(the "Board"), Reybold Venture Group V-A, LLC
("Appellant" or "Reybold") asserts that
its lack of access to the appraisal data of the New Castle
County Office of Assessment ("County") prior to a
Board hearing and the Board's decision not to grant
Reybold's mid-hearing request for a continuance violated
Reybold's right to due process.
County and the Board contend that Appellant had no right to
pre-hearing discovery and had sufficient time to review the
County's appraisal data during a brief hearing recess.
Court finds that, under the totality of the circumstances,
Appellant was denied due process.
and Procedural History
2011-2017, Appellant constructed St. Andrews Addition, a 118
rental townhouse community in the Bear area of New Castle
2013, the County sent a notice of increased tax assessments.
Appellant thought that the assessment was too high and
compared the tax assessments of St. Andrews Addition to St.
Andrews, a nearby subdivision of 327 rental townhomes, which
was also constructed by Appellant between 2001-2005.
Appellant believed that there was an unjustified difference
between the tax assessments of St. Andrews Addition and St.
Andrews (as much as a 50% increase in assessment) which
appeared to be the product of a significant overvaluation.
2014, Appellant appealed the tax assessments of 35 of the St.
Andrews Addition townhomes. Appellant and the County
negotiated the matter for more than three years
(2014-2017). During that time, Appellant disclosed its
data to the County and asked for the County's data. The
County refused to provide the County's appraisal data. An
agreement was eventually reached concerning the land
assessments, however, there was no agreement reached
concerning the assessment of the structures. The structure
assessment disparity was negotiated until approximately 30
days prior to the Board hearing.
Board hearing ("Hearing") was held on July 20,
2017. The Hearing started later than the appointed time
because the Board considered and adopted an amendment to its
procedural rules immediately prior to the
Hearing. The amendment created an appellant's
right to obtain pre-hearing appraisal data from the County
Hearing, Jerome S. Heisler, Jr. testified for Reybold.
Georgianna Trietley testified for the County. Mr. Heisler,
the managing member of Reybold, compared the tax assessments
of the St. Andrews Addition to the tax assessments of St.
Andrews. Mr. Heisler acknowledged that the tax
assessments of St. Andrews Addition should be higher than the
tax assessments for St. Andrews (because the newer townhomes
are larger) but opined that the 50% difference in assessment
between the two subdivisions was too high. Mr. Heisler also
noted that "[w]e know the person who did the original
assessments was let go from the County" and "[a]s
part of  dialogue [with the County] I learned that, one,
there was a new assessor out there and she was later let go
from the County because of inaccuracies in her
Trietley, a licensed assessor for the County, was the
County's witness. Ms. Trietley testified that the
County's appraisal data was comprised of "county
records, public records, recorder of deeds, [and] our own
data for the properties that were
comparable." She stated that although St. Andrews
Addition was rental property, it should be assessed by using
1983 sales comparables [instead of rentals] because the base
year for tax assessments is July 1, 1983. Ms. Trietley
created a table with the data based on the comparable
properties and that table was put into evidence as Exhibit 2.
Two other exhibits were also admitted into
Trietley explained her methodology and that the appraisal
data presented at the Hearing had been compiled shortly
before the Hearing- "within the past 30 days" (of
the Hearing). She further testified that she selected
(with difficulty)five comparable 1983 sales of residential
homes in the Bear, Delaware area, adjusted the square
footage of the selected comparable properties to the square
footage of the St. Andrews Addition, and then applied the
comparable property price per square foot to the square
footage of the disputed St. Andrews Addition
Trietley acknowledged that the square footage upon which the
County based its original assessments [and on which Appellant
appealed to the Board] was incorrect. She stated that
"[someone]  went out and re-measured all of the
parcels, you know, all of the St. Andrews Addition buildings,
so that you know, some of them did have bad measurements, so
they've been corrected, and my new assessed value sheet
have the corrected square footage that we currently
have." She also conceded that the tenant appeal
of the recently selected comparables was different from the
tenant appeal of the townhomes at St. Andrews
Board then took a brief recess to make copies of the
County's exhibits.Appellant remarked that it would like
to review the exhibits during the recess. Appellant was
allowed to review the exhibits. After the recess, the County
continued its direct examination of Ms. Trietely.
cross-examination, Ms. Trietley acknowledged that "she
was concerned that St. Andrews [was] not assessed high
enough" and that the difference in assessments
between St. Andrews and St. Andrews Addition was the result
of "the divergence in the types of buildings from the 1,
200-square-foot to the 2, 500-square-foot. And that, you
know, and in a tenant-appeal situation, St. Andrews is, you
know, 15 years old, and [St. Andrews Addition] is only, is
newer, less than five years old."
Heisler then testified as Appellant's rebuttal witness.
Mr. Heisler challenged the County's choices of comparable
properties. He explained that St. Andrews Addition
and St. Andrews have comparable amenities because the larger
St. Andrews units "have finished basements some of them,
decks, similar to the ones - - with patios underneath,
similar to the ones we have in [St. Andrews Addition]. So
there is comparability" and he proffered
Appellant's calculation of the square footage of the St.
Andrews Addition structures. Mr. Heisler also commented that
he had not seen the County's data exhibits until the
Board Hearing recess and that the County's calculation of
the square footage of the St. Andrews Addition structures was
inaccurate. Mr. Heisler also expressed frustration
with the County's methodology.
Heisler then asked for a continuance so that he could address
the exhibits. The Chairman of the Board appreciated
Appellant's need to study the presented data, including
the changes to it, but denied the request. The Chairman
said, "I believe that there is enough of a reasonable
cause that's been made by the County to offer the
[A]ppellant some improvements [lower assessments] from what
were the assessed values before you came
Mr. Heisler challenged the County's calculations, Ms.
Trietley admitted to the Chairman that her data was
internally flawed and asked for an opportunity to "run
[the numbers] again."
So you had 88, 300 represented the final value of
land and building.
Okay. And then you have a new building value of 73,
And if you subtract that from the 88, 300-
No. You have to look at the final value or the
building value. The building value previously was
Right. And now you're at 73, 800.
Now we're at 73, 800.
So how do you get a difference of minus $14, 500?
Because you have to add in the land.
Okay. But when you add in the land, isn't that
new value $81, 500?
If you compare 81, 500 to 88, 300, which was the
land and the building, how do you get $14, 500?
My excel didn't do that right
because they-88, 300
And I'm looking at that being the case in all
It is. It's a formula error.
I think that, yeah the difference would be that-88,
Yeah. 6, 700.
It would be 6, 800.
It's 81, 500 against 88, 300.
Right. It's 6, 700.
Right. So this-
Column is wrong.
Board then acknowledged that the County's witness had
presented incorrect information.
This column is wrong. So when we were talking about
the benefit to the appellant was almost $186, 000,
that's not true.
We can-I can go back and try to run it
I'm not trying to change everything. You know,
this is a document that's going into the record,
and that column is not accurate.
Chairman then struck the inaccurate portion of Ms.
Trietley's data from the record. The Board considered the
revised reassessment and unanimously accepted the newly
announced assessed values, which were lower (and based on
different data), than the assessed values that Appellant
August 10, 2017, the Board issued its formal Opinion. The
Opinion explained that the comparable sales approach utilized
by the County was a "recognized method of valuation,
" that the comparable sales properties
that the County used in support of its valuation were all
within two miles of St. Andrews Addition,  and that the
Court has historically supported the comparable sales method
and rejected the comparable assessments method.
September 15, 2017, Appellant filed its Notice of Appeal of
the Board's decision.
December 29, 2017, Appellant filed its Opening Brief.
Appellant asserts that the Board violated Appellant's
right to due process when it denied Appellant's request
for pre-hearing discovery and denied Appellant's request,
during the Hearing, for a continuance in order to have
sufficient time to review the County's newly revealed
appraisal data which resulted in an assessment lower than the
Appellant contends that "[considering the important
nature of this appraisal data, disclosing the appraisal data
on the same date of the Hearing failed to provide Appellant
the proper notice to which it [was]
entitled" and that "Appellant explicitly
requested [the County's appraisal data] on several
occasions between fall 2013 and the Hearing, but the County
refused to provide this information to the
Appellant." Appellant also asserts that the
continuance denial unfairly prejudiced Appellant and was
somewhat ironic in light of the Board's amendment of a
procedural rule, moments before the Hearing, which recognized
the importance of informed and germane appeals.
argues that the denial of a continuance was unfair because
Appellant had little basis upon which to challenge the
County's new revised reassessments that only became known
after Appellant's witness had testified. Appellant asks
the Court to remand this matter because "[t]his denial
prohibited Appellant from having a fair opportunity to
analyze and rebut the County's appraisal data in advance
of the Hearing." Appellant further claims that
"[t]he County's last minute introduction of their
appraisal data on the same day of the Hearing materially
prejudiced Appellant's ability to properly analyze and
rebut the same."
February 6, 2018, Appellees filed their Answering Brief.
Appellees argue that the absence of formal discovery in
administrative proceedings does not violate due process,
"[n]othing precluded [Appellant] from conducting its own
research of comparable properties that were sold and
presenting that evidence to the Board in its case in chief,
" and "[Appellant]  failed to show
how a continuance would have changed the
February 27, 2018, Appellant filed its Reply in Further
Support of Its Opening Brief. Appellant asserted that
allowing Appellant to view the County's appraisal data
during a brief recess "hardly cured the prejudice that
Reybold faced by having to confront this data for the first
time at the [H]earing."
Court's authority to review appeals from the Board is
governed by 9 Del. C. § 8312(c), which provides
that "[t]he decision of [the Board] shall be prima facie
correct and the burden of proof shall be on the appellant to
show that such body acted contrary to law, fraudulently,
arbitrarily or capriciously." The Appellant faces
"a substantial evidential burden" before both the
Board and this Court. At a hearing before the Board, there
is a presumption of accuracy in favor of the County's
assessment. That presumption can only be overcome by
competent evidence sufficient to show a substantial
overvaluation. On appeal to this Court from the Board,
"[t]he reviewing court is not to reverse if it finds
that the Board relied in part on incompetent evidence but
only if the Board's findings are clearly wrong and its
conclusions not the product of an orderly and logical
deductive process." The Board's decision not to grant
Appellant's request for a continuance is reviewed under
an abuse of discretion standard. This Court may remand a
matter back to the Board "to clarify issues of fact or
to make findings consistent with the Court's
asserts that it was denied its right to due process because
the Board refused to provide pre-hearing discovery and
declined to grant Appellant's mid-Hearing request for a
continuance in order for Appellant to sufficiently evaluate
the County's changing and inaccurate appraisal data
(particularly since the County denied Appellant's request
for the County's appraisal data prior to the Hearing). A
determination on this issue is fact-specific.
the continuance request made during the Hearing after the
County presented its witness and exhibits, Mr. Heisler stated
that "I would actually like time to respond to the
exhibit... I think this is sort of a shotgun approach if this
is the only time I get on something this major. I would like
time to respond to this because I think it's important to
the overall process." However, the Board denied the
request and offered as its reason that the revised
reassessments were "some improvement" (lower than
the original County assessments that Appellant
appealed). The Board did not address
Appellant's concern about the process.
on the totality of the circumstances, the Court finds that
the Board's decision to deny a continuance was an abuse
of discretion. Appellant was prejudiced by the Board's
denial. In O'Neill v. Board of Assessment
Review,  this Court held that a proceeding
before the Board was "fundamentally unfair" when
the County presented proposed reassessed property valuation
figures at a hearing where the appellant contended that such
evidence "constituted surprise" and "deprived
 her [of her] right to effectively cross-examine and
present evidence." Upon a finding that the Board
relied on figures that were not introduced into evidence or
made available to the Appellant prior to the hearing in O
'Neill, the Court remanded for a new administrative
although Appellant learned of the figures and revised figures
during the Hearing, Appellant did not have an opportunity to
meaningfully review or challenge the County's
reassessments and/or the revised reassessments. Despite
Reybold's negotiations concerning pre-hearing assessments
with the County for almost four years, the County did not
present those pre-hearing assessments during the
Hearing. During the Hearing, the County's
witness conceded that the assessed values that were used
during negotiations and formed the basis of Appellant's
appeal were incorrect because they were based on inaccurate
square-footage measurements of the St. Andrews Addition
structures. The County, instead, presented
reassessments and then as the Hearing progressed, revised
those reassessments. As such, the County proffered two new
and different assessments during the Hearing.
presentation of its case at the Hearing focused on
pre-Hearing assessments put forth by the County during
negotiations. Appellant was not informed of the County's
new figures or any basis for the new figures until after
Appellant had presented its case, rested, and the County
presented its witness. Appellant only had a brief period of
time during the copying break to review and consider the
County's post-negotiation figures which were revealed at
the Hearing (and had been compiled only approximately 30 days
prior to the Hearing). Furthermore, this was not the
County's final version. The County's figures
continued to change during the Hearing and were again revised
after cross-examination and rebuttal. Moreover, the record
does not reflect that Appellant had an opportunity to
challenge the inaccurate revised reassessment figures that
had been proffered after the recess.
were protracted pre-Hearing negotiations, the County
abandoned its pre-Hearing figures, and the County presented
reassessments at the Hearing after those negotiations. The
County did not present a firm, accurate, or unchanging
assessment. Additionally, the County's witness wanted to
go over the numbers again. As such, the Court finds that
the Board abused its discretion when it declined to grant the
appeared at the Hearing for the purpose of challenging the
original assessments. Appellant was not aware of newly
revised assessments or the changing nature of the revised
assessment until after the County's witness testified.
Due process requires that an appellant have notice of the
subject matter of the proceedings and due process is
violated when "notice  fail[s] to inform, and this
lack of information  prejudice[s] the party's ability
to defend against the charges."Although Appellant
obviously knew the generalized nature of the subject matter
(tax assessments of St. Andrews Addition rental townhomes),
Appellant did not have notice that the County had been
negotiating with incorrect assessment ...