Court rules against mayor’s brother

PALMER — Though he apparently plans to appeal, the Mat-Su Borough mayor’s brother has, for now anyway, lost his lawsuit against the borough.

“Because (the law) does not require the borough to remove Mr. (Ray) DeVilbiss’ properties from the road service area at issue, and because the tax applied in that service area is lawful, the court will grant the borough’s motions and deny Mr. DeVilbiss’ motion,” Superior Court Judge Eric Smith wrote in a ruling handed down Sept. 9.

The motions Smith mentioned were for summary judgment — a legal term for a motion that would basically decide a case before it has to proceed through a lengthy trial.

Ray DeVilbiss is brother to borough mayor Larry DeVilbiss. And like his brother, he lives in the Lazy Mountain area.

Ray DeVilbiss argued in his lawsuit against the borough that he was being unfairly taxed for road service. The way the borough handles road service is kind of complicated. The borough is split into road service areas and each levies a different tax. Those taxes are then used to plow, repair, grade and do minor upgrades on borough roads in the area.

But, Ray DeVilbiss argued, he doesn’t live on a borough road and in fact cannot access his property from a borough road, only a state-maintained road.

“I do not use one foot of those RSA-maintained roads to access my parcels or my home on my parcels,” DeVilbiss wrote in his pleadings.

State law allows for exemptions to these kinds of special taxation areas. Ray DeVilbiss took his complaint to the borough assembly a couple times, but was denied an exemption.

Smith broke DeVilbiss’ argument down into two categories. In the first, the judge wrote, DeVilbiss argues that the law requires the borough to exempt him. In the second, he argues the taxes are unlawful.

Smith wrote that even the statutes and legislative history that DeVilbiss pointed to backed the borough’s interpretation of the law — that the borough has the ability to create exemptions, but does not have a duty to do so.

As for the second category, that the taxes are unlawful, Smith dealt with a few of DeVilbiss’ theories for why that is.

In one theory, the taxes are unlawful because DeVilbiss does not get any benefit from them.

In summing up the borough’s counterargument, Smith quoted a 1937 U.S. Supreme Court ruling.

“The only benefit to which the taxpayer is entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to the public,” that 1937 decision says.

Another theory is that the taxes are arbitrary and discriminatory, and therefore unconstitutional.

Again, Smith quotes a U.S. Supreme Court ruling.

“The construction and maintenance of serviceable roads in any community is a matter in which the whole community have an interest and is a typical purpose for which property may be taxed by the state.”

A third theory DeVilbiss raised was that when the road service taxes were voted on in the 1980s, ballot language said that there would likely be no new taxes as a result, since shared revenue from the state would cover the costs.

There actually weren’t any new taxes until 1991. DeVilbiss argued that the ballot language was a contract the borough had reneged on. Smith knocks this argument down by referring back to the ballot language.

“The ballot language did not provide any guarantees against future taxation. Rather, the plain language of the ballot clearly states that (the) borough was estimating the cost of road service and anticipating that those costs would not exceed shared state revenue, rather than binding itself to a specific level of taxation,” Smith writes.

Although Smith’s ruling basically tossed out DeVilbiss’ case, he has filed a notice that he intends to appeal, Borough attorney Nick Spiropoulos announced at the assembly’s Dec. 3 meeting.

Contact Andrew Wellner at 352-2270

or andrew.wellner@frontiersman.com.