Municipal immunity bars claim of negligent tax assessment. Estoppel claim not proven.

Sobel v. City of Rutland, 2012 VT 84 (Burgess, J.)              

Plaintiff owners of an office building appeal the superior court’s grant of summary judgment for defendant municipality. Plaintiffs claim the municipal assessor was negligent in providing inaccurate property tax estimates on the proposed, but not yet built, office.  Plaintiffs also sought to enjoin enforcement of the tax assessment on the office building ultimately constructed.  On appeal, they argue that the court erred in concluding, on summary judgment, that their negligence claim was barred by municipal immunity and that they failed to establish equitable estoppel. We affirm.

Municipal immunity protects municipalities "from tort liability in cases where the municipality fulfills a governmental rather than a proprietary function." Governmental functions are those performed when a municipality "exercise[s] those powers and functions specifically authorized by the Legislature, as well as those functions that may be fairly and necessarily implied or that are incident or subordinate to the express powers." Proprietary activities, on the other hand, are, essentially, commercial activities performed by a municipality in its corporate capacity, for the benefit of the municipality and its residents, and unrelated to its "legally authorized activity." Plaintiffs admit that the estimates here were sought from the Assessor in his official capacity.  But for his office plaintiffs would not haveinquired. Tax estimates thus  elicited solely on account of the Assessor’s official position are reasonably treated as governmental, as opposed to proprietary, activity, that entitle the municipality for immunityfrom suit stemming from the Assessor's estimates.

We also conclude that plaintiffs cannot establish the elements of equitable estoppel: (1) the party to be estopped must know the facts; (2) the party being estopped must intend that its conduct be acted upon; (3) the party asserting estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on the conduct of the party to be estopped to its detriment.