Judge sticks to his opinion, but Moynihan feels city was wrong.
By Lynn R. Parks
A judge in the state Court of Chancery ruled against him. That same judge rejected an appeal of that ruling. But Larry Moynihan, who filed a suit against the city of Seaford over its 2004 tax assessment "audit," still believes that he is right and that the city was wrong in what it did. "We still know that we are right," said Moynihan. "What the city did was wrong and we know that if we ran it through the appeals process, we would win. There is no way that what they did would be found to be correct." Even so, Moynihan indicated that it is unlikely that he and fellow plaintiff Dr. Harry Freedman will file an appeal of Vice Chancellor John Noble's decision. Such an appeal would go before the state Supreme Court. "We would have to sit down and consider whether we would want to invest the money" for an appeal, he said. But Moynihan's attorney Steve Ellis, Georgetown, said Friday that further legal action is still a possibility. He said that he will give the city "a week to 10 days" to schedule a hearing that he has requested to resolve a still-pending appeal of a tax assessment bill that Moynihan filed in 2005. If such a hearing is not scheduled in that time period, Ellis said that he will file a new motion with the Court of Chancery. "It would say, look, we've done what you wanted and the city didn't respond," Ellis said. "What now?" Moynihan filed the appeal and subsequent suit following an increase in tax assessment values for 899 properties in the city, including a parcel that he owns. That increase was based on the recommendation of Randy Westergren, owner of Delaware Assessor, Milford. In a report to the city council Dec. 14, 2004, Westergren said that he had identified 899 properties, about a third of those in the city, whose owners were paying taxes based on assessments that were too low. The city was losing $246,526 every year in tax revenue, he said. The city council voted to retroactively bill owners of those properties additional amounts for the 2004-2005 fiscal year, based on Westergren's values. Subsequent tax bills have also been based on Westergren's values.
Appeals are still pending.
As a result of Westergren's audit, Moynihan was required to pay an additional $320 annually in property taxes. He and about 40 other property owners appealed their increased bills. Appeals that were still pending, including Moynihan's, were put on hold after Moynihan filed his suit in May 2005. City manager Dolores Slatcher said Friday that the city is awaiting an opinion from its solicitor Jim Fuqua regarding how it should handle the still-pending appeals of tax increases generated by the audit. Moynihan is interested in pursuing his appeal.
"We believe that this is what the judge has told us to do," he said.
In his first decision dated Aug. 7, Noble said that plaintiffs did not exhaust all avenues of appeal with the city before filing the suit in the Court of Chancery. "There is no reason why the court needs to intercede on behalf of the plaintiffs and thereby disrupt the normal assessment review process," Noble wrote. "Nor is there any reason to encourage disgruntled property owners to bring claims to court without first resorting to the orderly process established by the city charter." "I am hoping that the city will see the wisdom of the appeal and put the value back to where it was," Moynihan said. But even if that happens, that will not change the assessments for the more than 850 properties whose owners did not file appeals. The appeals period for those tax bills has passed. "I can only do this for my own property. I can't do this for any other property," Moynihan said.
Audit was 'bizarre' and 'ludicrous'.
Moynihan's suit charged that Westergren did not use valid assessment procedures in coming up with the property values. At the hearing held in the Sussex County Court of Chancery in March, Moynihan called Westergren's methods "bizarre" and "ludicrous." The suit also charged that Westergren's method of figuring his fee was illegal. He charged the city one-half of the additional amount his changes to the tax rolls generated: The new tax bills meant $236,526 in city coffers; Westergren charged the city half of that, or $123,263. State law forbids basing a fee for real estate appraisals on the results of the appraisal. In his ruling, Noble did not comment on the legality of the audit or of the fee. He said that that determination must be made through appeals heard by the Seaford City Council and, if needed, through Superior Court. At the same time, he called efforts by Moynihan and Freedman to have the audit overturned "commendable." Stephen Ellis, attorney for Moynihan and Freedman, filed a motion for reargument Aug. 14, asking the court to rule on Westergren's methodology and qualifications. On Sept. 22, Noble rejected that motion for reargument, saying that "the court neither misunderstood nor misapplied the law" in the first decision. "This was one of the most disappointing things that have ever happened to me," said Moynihan. "I just keep thinking of that old phrase, 'You don't fight city hall.' It seems that the judge just washed his hands of the whole thing."
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