Tyler Road Development Corp. v. Town of Londonderry

The defendant, the Town of Londonderry (town), appeals the Superior Court’s (Murphy, J.) ruling that application of RSA 79-A:7, V (Supp. 1999) to the plaintiff’s land is unconstitutionally retrospective. The plaintiff, Tyler Road Development Corpora-tion, cross-appeals the trial court’s determination that the court lacked jurisdiction to abate taxes assessed against a portion of that land. We affirm in part, reverse in part, vacate in part, and remand. The parties stipulated to the following facts. In 1995, the plaintiff acquired two adjacent parcels of land in Londonderry. The prior owners had enrolled the two parcels into current use, one in 1983 and the other in 1991. In July 1995, the plaintiff received conditional approval from the Londonderry Planning Board to create a twelvelot subdivision on the land (Phase I). In August 1995, the plaintiff began improving an access road to the Phase I subdivision. In January 1996, the plaintiff received conditional approval from the planning board to create a nineteen-lot subdivision (Phase II). Improvements to the Phase II access road began shortly thereafter. Between September 1995 and April 1996, the town assessed land use change taxes against each of the twelve Phase I lots, on a lot-by-lot basis, pursuant to RSA 79-A:7,V,as amended in 1991. The plaintiff paid the twelve tax bills and filed a request for abatement. The town denied the request, and the plaintiff appealed to the superior court, arguing that the town had improperly assessed the land use change taxes under RSA 79-A:7, Y The plaintiff additionally petitioned for declaratory judgment, arguing that because the land was placed into current use prior to the 1991 amendments, the application of those amendments was unconstitutional. The plaintiff argued that the anticipated land use change tax assessments upon the Phase II lots would be similarly illegal. In February 1997, the town used the lot-by-lot method to assess land use change taxes on the Phase II lots. The plaintiff paid the taxes but did not request an abatement. The trial court consolidated the tax abatement appeal and the declaratory judgment petition. The court ruled that the 1991 amendments to RSA 79-A:7, V,which permitted the town to assess the land use change tax on a lot-by-lot basis, were unconstitutional as applied to the Phase I lots, and ordered an abatement. The town appeals this ruling. The court also held that the plaintiff’s failure to request an abatement for the Phase II lots deprived the court of jurisdiction to order an abatement as to those lots. The plaintiff cross-appeals this ruling. First, we discuss the current use taxation scheme. The purpose of the current use taxation statute is to encourage the preservation of open space. See RSA 79-A:l (Supp. 1999). Under the statute, a taxpayer, can receive lower property tax rates by enrolling “farm,” “forest,” or “unproductive” land as “open space land” to be assessed at its “current use value.” See RSA 79-A:2, IX (Supp. 1999). This enrollment allows the landowner to avoid taxation at a higher rate based upon the land’s fair market value. When the land is changed to a use that no longer qualifies for current use assessment, it falls out of current use, and a land use change tax is assessed against the market value of the land. See RSA 79-A:7, I (Supp. 1999). Next, we address the constitutional question whether RSA 79-A:7 was retrospectively applied to the plaintiff’s land. “Every statute, which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past must be deemed a retrospective law.” N.H. Const. pt. 1, art.

In concluding that the Phase I tax assessment was unconstitutional, the superior court relied substantially on our decision in Opinion of the Justices (Current Use Reimbursement Program), 137 N.H. 270, 627 A.2d 92 (1993), and our implicit supposition that the relevant transaction for analysis is when land is enrolled in current use, rather than when the land is removed from current use. The town urges us to depart from our reasoning in that opinion and declare the relevant transaction to be when the land is removed from current use. For the reasons that follow, in this adversarial proceeding, we reluctantly depart from the majority view in Opin-ion of the Justices (Current Use Reimbursement Program), and adopt the reasoning of the dissent. See Schoff v. City of Somersworth, 137 N.H. 583, 586, 630 A.2d 783, 785 (1993). In Opinion of the Justices (Current Use Reimbursement Pro-gram), we were asked whether “either an increase in the rate of land use change tax or the imposition of a penalty for a land use change on land already in current use” would be unconstitutional. Opinion of the Justices (Current Use Reimbursement Program), 137 N.H. at 273, 627 A.2d at 94. With two justices dissenting, the majority held that such a change would violate the prohibition against retrospective laws. The majority relied upon Cagan’s, Inc. v. New Hampshire Department of Revenue Administration, 126 N.H. 239, 490 A.2d 1354 (1985). See Opinion of the Justices (Current Use Reimbursement Program), 137 N.H. at 278, 627 A.2d at 97. Cagan’s, Inc. is inapposite. In Cagan’s, Inc., we held that the imposition of a new tax upon vending machine sales from previous years was unconstitutional. Cagan’s, Inc. 126 N.H. at 249, 490 A.2d at 1361. Prior to the enactment of that tax, no tax whatsoever had been levied upon the vending machine sales. The question presented in Cagan’s, Inc. is fundamentally different from the question presented in the case at bar and from the question answered in Opinion of the Justices (Current Use Reimbursement Program). From the first implementation of the current use system in the early 1970’s, a land use change tax has been assessed when land falls from current use. See RSA 79-A:7 (Supp. 1973). It does not follow from our decision in Cagan’s, Inc., striking down a new tax upon old sales, that a changed taxation method applied to an existing tax upon the future market value of land being removed from current use would also be unconstitutional. Our analysis in Shangri-La, Inc. v. State of New Hampshire, 113 N.H. 440, 309 A.2d 285 (1973), is instructive. In that case, the taxpayer challenged the validity of an income tax provision taxing the appreciated value of an asset that was purchased prior to the enforcement date of that provision, but sold after that date. See id. at 441,309A.2d at 286-87.We correctlyprofit,heldthatthe taxable event was upon the taxpayer’s realization of or when the asset wasif sold. See id. at 444, 309 A.2d atrealized,288.Itstandstoarereasontaxedthatwhen income is taxedmade,whenincome is changes areandtaxedsaleswhen land use sales are then land use changes.plaintiffargues holding unfairly “trap” investors The that our will system who place their investment propertychangeintothe currentmethod,use expecting a particularrightlandpre-1991use taxation disagree.andthatit hasFirst,avestedpurposeto the taxationsystemmethod.isnotWetofacilitate developmentthe of land asofthetheplaintiffcurrentusesuggests.Tothecontrary,the current use system was developed to encourage the preservation of open space in New Hampshire.any rightsSeeRSA 79-A:l. Further, the plaintiffplaintiffcannotassert vested profferedwereeffected because, as the concedes, no facts were at the trial court that would substantiate such a claim. Because we hold that the relevantjudgmenttransactioniswhensuperiorthe land is removed from current use, the of the court is unsupported. The record reflects that the townSeptemberassessedthe land use change tax on the Phase Ipostlandbetween 1995 and April 1996.These assessmentsapplicationdate the enforcementamendments,date of the 1991 amendments. The of these therefore, was-not unconstitutional.superior applicationAccordingly,wereversethe court’sPhaseIdeclarationlandunconsti-thatthe of the 1991theamendmentsabatementgranted.toBecausewasitruled the tutional and vacate unconstitutional, superior amendments plaintiff’swere the court did not address the assertion that thesuperiorinitialcalculationofthe taxes was incorrect. Weremand for theaccurately court to determineFor if the initial follow,taxassessmenthowever,was superiorcalculated.court’sjudg-the reasons that jurisdictionwe affirm the request for ment that itlacked proceedingstoreviewthenecessaryabatementwithrespectto Phase II land. Norequest.further are that abatementplaintiffargues 76:17-c, II and the plaintiff’s declaratoryThejudgment petitionthatRSAgavethetrialcourt jurisdiction. We disagree. legislature “This court is the final arbiter of the intentconstruingofthemeaning as expressed in the words ofa statute. When its we first examine the language found in the statute, and where possible, we ascribe the plain and ordinary meanings to words.” Appeal of Van Lumen, 145 N.H. 82, 86, 750 A.2d 737, 740 (2000). “(W]e construe all parts of a statute together to effectuate its overall purpose and to avoid an absurd or unjust result.” Id. RSA 76:17-c, II (Supp. 1999) provides: If, while an appeal pursuant to RSA 76:16-a or 76:17 is pending, subsequent taxes are assessed using an assessment value later found to be incorrect by the board of tax and land appeals or the superior court, the selectmen or assessors shall abate such subsequent taxes, using the correct assessment value as found by the board or the court, even if no abatement request or appeal has ever been filed with respect to such subsequent taxes. RSA 76:17-c, II applies only to land that was the subject of the initial abatement appeal, and not to other land that a taxpayer may own. RSA 76:17~e, II did not give the superior court jurisdiction to abate the assessments upon the Phase II land because the plaintiff never filed a request for abatement as to these assessments. The plaintiff asserts that its declaratory judgment petition was the proper vehicle by which to challenge the constitutionality of the town’s taxation method. We agree with this limited conclusion, but nevertheless hold that the petition did not obviate the need for the plaintiff to comply with the statutory prerequisites for obtaining an abatement. “The New Hampshire tax abatement statutes... provide the exclusive remedy available to a taxpayer dissatisfied with an assessment made against his property.” LSP Assoc. v. Town of Gilford, 142 N.H. 369, 374, 702 A.2d 795, 798 (1997). The tax abatement statutes require a taxpayer first to request an abatement from the municipal assessors and, if dissatisfied, to seek relief from either the board of tax and land appeals or the superior court. See RSA 76:16-a (1991 & Supp. 1999); RSA 76:17 (Supp. 1999). Because the plaintiff never requested an abatement of the Phase II taxes, the court had no jurisdiction to abate them. The superior court’s jurisdiction to abate taxes is appellate only See LSP Assoc., 142 N.H. at 374, 702 A.2d at 798. It has no jurisdiction to abate taxes absent a prior request for an abatement filed with the town’s assessors.

Grafton No. 98-426 Donna St. Pierre v. Stephen Elgert, M.D.

Edward B. Mulligan, IV, of Gilford, by brief and orally, for the plaintiff. Sulloway & Hollis, P.L.L.C., of Concord (W Kirk Abbott, Jr. and Sarah S. Murdough on the brief, and Mr. Abbott orally), for the defendant. DALIANIS,J. The plaintiff, Donna St. Pierre, appeals the Supe-rior Court’s (Fitzgerald, J.) grant of the motion of the defendant, Stephen Elgert, M.D., for directed verdict in her medical negligence case. We reverse and remand. 10, The following facts are undisputed. On December 1993, the defendant, the plaintiff’s physician, delivered the plaintiff’s second child. Following the delivery, the plaintiff began to hemorrhage. After examining the plaintiff’s uterus, the defendant determined that the placenta had partially separated from the uterus and that the hemorrhaging came from the placental insertion site on the