Sawmill contends that the
additional steps taken by the Auditor were inadequate and that the only
reasonable step was to post notice on the Property. In this regard, Sawmill
argues that because of the misnomer on the documents relating to the Property,
there was only one method of providing notice that was reasonable when the
mailed notice was returned. Or, in other words, that because the named owner of
record did not exist and was thus untraceable, that the Auditor must post
notice on the Property. We cannot agree for two reasons.
First, under the unique
circumstances of this case, posting notice on the property was not a reasonable
or practicable step for the Auditor to take, and in such circumstances due
process does not require the government to do more. See Flowers, 547
U.S. at 234, 126 S. Ct. at 1718, 164 L. Ed. 2d at 430–31 ("[I]f there were
no reasonable additional steps the government could have taken upon return of
the unclaimed notice letter, it cannot be faulted for doing nothing.").
The Auditor knew, from reviewing the tax records, that the Property was
unimproved, bare land, thus making posting a suspect form of notice. See Greene,
456 U.S. at 452–53, 102 S. Ct. at 1879, 72 L. Ed. 2d at 257 (noting that the
efficacy of posting notice is dependent upon the nature of the property
posted).
…
Second, the notices for
approximately 1,800 properties were returned to the Auditor in 2005 alone. The
burden of posting notice on that many properties is significant. In fact, the Auditor testified that it is not done
because it is cost prohibitive: "Going to each of those properties,
mapping them out, and getting the signage for each of those properties wouldn’t
be really possible time wise or financially." Tr. at 94. Were we to accept
Sawmill's contention that notice must be posted on the property when the owner
of record cannot be located through any reasonable means, the Auditor would be
placed in an untenable position. This we cannot do.
For the foregoing reasons the
judgment of the trial court is reversed. Sawmill's motion to set aside the tax
deed is denied."
