2004-501, PORTSMOUTH COUNTRY CLUB v. TOWN OF GREENLAND

attendan t increase in the assessed value of the Club’s property, the Club and Greenland. Following a town - wide revaluation of property in 1987 and an the parties. The Club operates an eighteen - hole golf course on 255 acres in The following facts are recited in the trial court’s order or agreed to by

ruling retroactively and to award the Club attorney ’s fees. We affirm. Club (Club) cross - appeals, challenging the trial court’s refusal to apply its taxing the underlying land as open space. The plaintiff, Portsmouth Country to tax the golf holes on the plain tiff’s golf course as improvements in addition to order of the Superior Court (McHugh, J.) ruling that the Town cannot continue NADEAU, J. The defendant, the Town of Greenland (Town), appeals an

defendant. Pete r J. Loughlin, of Portsmouth, on the brief and orally, for the

R. Woodman, Jr., on the brief and orally), for the plaintiff. Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (Ralph

No. 2 004 - 501 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

appeal. ruling retroactively and to award attorney’s fees. We first address the Town’s of tax assessment. The Club cross - appeals the trial co urt’s failure to apply its attorney’s fees. The Town appeals the trial court’s ruling regarding the method assessed taxes for the years 1991 through p. 2 2001 or to award the Club its amount.” The trial court decl ined, however, to grant a rebate of erroneously independently assess the golf holes and add that amount to the current use for the agreed - upon current use amount. Thus, the Town cannot not assess “any additional tax on the 247 acres of open space land . . . except its current use value. The trial court agreed, and ruled that the Tow n could and applicable statute, the Town could not assess the 247 acres at more than superior court, contending that according to the discretionary easement deed then filed a petition for abatement, declarator y judgment and damages with the The Club applied to the Town for an abatement, which was denied. It

of the golf holes. to the current use assessment of $400 per acre, it was being taxed on the value Town’s taxing policies. It was then that th e Club first realized that in addition increase in the Club’s taxes and prompting an inquiry by the Club into the In p. 2 2001, another property revaluation was conducted, resulting in an

assessed valuation or complained about its tax bill. Between 1987 and p. 2 2000, the Club never inquired about the compon ents of its that value was listed on the Club’s tax bill under the category of buildings. to 2001, the total additional assessment for these holes was $504,000, and however, separately assessed the golf ho les located on those 247 acres. Prior easement has been set by the Town at $400 per acre. The Town has also, Since 1992, the current use rate for the 247 acres subject to the

signed until 1991, implementation of its provisions began in 1987. from the easement and taxed at fair market value. Although the deed was not clubhouse, “snack shack” and parking lot were located, would be excluded assessment[,] as open space.” The remaining five acres, on which a pro shop, subject to the easement and classifi ed, “for purposes of current use tax p. 2 247 acres of the Club’s property, which are used for playing golf, would be The Club’s discretionary easement deed, as later amended, provided that

use advisory] board.” RSA 79 - A:18 (1991) (repealed 1996). acre valuation of any category of open space land established by the [current easement or at a “fixed assessment . . . which does not exceed the highest per either according to the current use assessment category specified in the provided a mechanism for taxing land su bject to a discretionary easement 79 - A:15 -: p. 2 21 (repealed and replaced by RSA ch. 79 - C (200 p. 3 3)). That statute the Town negotiated a discretionary easement deed pursuant to former RSA 3

Dist., 150 N.H. 2 41, 242 (200 p. 3 3) (quotations, citation and ellipsis omitted). Sanborn Regional Sch. Dist. v. Budget Comm. of the Sanborn Regional Sch.

effectuate the legislative purpose of the statute. other, and so that they will lead to reasonable results and matter, we c onstrue them so that they do not contradict each When interpreting two statutes which deal with a similar subject

the Matter of Glaude & Fogg, 151 N.H. 27 p. 3 3, 275 (2004). statutes not in isolation, but in the context of the overall statutory scheme. In Int’l Speedway, 151 N.H. 409, 419 (2004) (citation omitted). We also interpret ascribe the plain and ordinary meanings to the words used.” Carignan v. N.H. considered as a whole. We first examine the language of the statute and are the final arbite r of legislative intent as expressed in the words of the statute Shenton, 78 N.H. 216, 217 (1916). “In matters of statutory interpretation, we 21,” and, in any event, could not contravene the statute. Cf. Albertson v. explicitly conveyed the easement “pursuant to New Hampshire RSA 79 - A:15 - We begin with the applicable statute, as the discretionary easem ent deed

or improvements to land. deed, golf course components such as tees and greens are to be treated as land whether, for purposes of the applicable statute and the discretionary easement greens, sand traps, fairways, roughs, etc.” Thus, the question before us is natural condition, all of which are a necessary part of a ‘golf course,’ i.e. tees, though “[a] golf course obviously must have some improvements to land in its land used for a golf course to be eligible for a disc retionary easement even interpretation is consistent with the applicable statutory scheme, which allows and subject thereunder to assessment as open land. The Club argues that this golf course improvements are “part of the land” encumbered by the easement The Club, on the other hand, contends that what the Town identifies as

RSA 79 - A:5, I (1991) (amended 1991) (emphasis added). chapter, excluding any building, appurtenance or other improvement thereon.” use advisory board, “open space land, as classified under th e provisions of this assessing officials to appraise, at current use values established by the current time the discretionary easement deed was executed, directed the selectmen or golf course components is mandated by the current use statute, which, at the the golf course land.” Moreover, it argues that its separate assessment of the Deed,” the Town argues, “says absolutely nothing about the improvements to assessment as open space.” (Quotation omitted.) “The Discretionary Easement to classify the lands encumbered by this easement for purposes of current use assessment practice is consistent with the easement deed, in which it “agreed properly assessed and taxed separately from the land.” It contends that its greens are improvements to land, separate from the land itself, and “are The Town argues that golf course components such as tees, fairways and p. 4 4

It argues that the current use advisory board’s “definiti on of ‘golf course’ could “golf course land” for purposes of the current discretionary easement statute). administrative rule rather than a statute. Cf. RSA 79 - C:2, III (2003) (defining deed was signed, the definitio n of golf course was contained in an The Town notes, however, that at the time the discretionary easement

of the land. that the tees, greens and similar golf course components are included as part area.” (Emp hasis added.) The plain and ordinary meaning of these words is roughs, and such other areas which are located within the established playing playing of the game of golf including greens, fairways, tees, sand traps, and under RSA 79 - A:15, [to] mean[] a parcel of land, ten acres or more, used in the 1201.0 p. 4 4 (repealed 1992) (former Rev 1204.01) defined golf course, “as p rovided The parties agree that former New Hampshire Administrative Rules, Rev for the purpose of this subdivision.” RSA 79 - A:15, IV (1991) (repealed 1991). under RSA 541 - A, a definition of ‘golf cours e,’ based on open space objectives, commissioner [of the department of revenue administration] shall adopt by rule provided that “[a]s directed by the [current use advisory] board, the consideration to the application.” Prior to August 17, 1991, the statute also is used for a golf course, the [current use advisory] board shall give due RSA 79 - A:15, III (1991) (repealed 1996) provided in part that “[i]f the land

(repealed 1996). inconsiste nt with the purposes” of the current use statute, RSA 79 - A:17 (1991) develop, or otherwise change the use of such land to a more intensive use the owner and any transferees or assignees of the land “not to subdivide, a term of at least ten years, RSA 79 - A:18 (1991) (repealed 1996), would bind A:15, II (1991) (repealed 1996). A discretionary easement, which had to be for number of enumerated objectives or provided “other similar benefits.” RSA 79 determined that the planned use of such land was consistent with any of a town or city.” The planning board w as directed to approve the application if it town planning board “for a permit to convey a discretionary easement to the use consistent with the purposes of that chapter, could apply to the city or current use taxation under that chapter, but who wishes to keep the land in a which does not meet the criteria for open space land, so as to qualify for RSA 79 - A:15, I (1991) (repealed 1996), provided that an owner of land

taxation as improvements. d iscretionary easement has been granted and to preclude their separate statutory scheme to treat these features as part of the land on which a purposes of RSA 79 - A: p. 5 5, I (1991) (amended 1991), we still interpret the overall and other golf course characteristics would otherwise be improvements for (1991 & Supp. 1995). Nevertheless, even were we to assume that tees, greens deed was executed did not define the term “improvement.” See RSA ch. 79 - A The current use statute in force at the time the discretionary easement 5

current, rather than its highest and best, use. objectives by directing that certain land be valued for t axation purposes at its Croydon, 119 N.H. 202, 203 (1979), the current use statute promotes these (Emphasis added.) As we explained in Blue Mountain Forest Ass’n v. Town of

town or city government. acquisition of discretionary easements of development rights by for property taxation on the basis of current use and the space authorized by this chapter are the assessment of land value valorem taxation. The means for encouraging preservation of open space usage, with a minimum disturba nce of the concept of ad pressure of property taxation at values incompatible with open prevent the conversion of open space to more intensive use by the resources. It is further declared to be in the public interest to landscape, and by conserving the land, wate r, forest, and wildlife state’s citizens, by maintaining the character of the state’s and attractive outdoor environment for work and recreation of the preservation of open space in the state by providing a healthful It is hereby declared to be in the public intere st to encourage the

RSA 79 - A:1 (1991) (amended 1991, 1996) provided:

cited by the legislature in the current use statute: objectives,” RSA 79 - A:1 p. 5 5, III (1991) (repealed 1996), we look to the objectives As the agency was directed to adopt a definitio n “based on open space details to effectuate the purpose of the statute.” Id. at 557 (quotation omitted). definition of golf course, the legislature left a gap for the agency to “fill in and commissioner of the department of revenue administration to promulgate a discretionary easement and explicitly directing the current use advisory board In providing that land used for a golf course could be subject to a

authority have the force and effect of laws.” Id. at p. 5 559. promulgated by administrative agencies pursuant to a valid delegation of purpose of the statute.” Id. (quotation omitted). “Rules and regulations however, properly be delegated the authority to “fill in details to effectuate the 121 N.H. 552, 557 (1981) (quotation o mitted). Administrative agencies may, to, detract from, or in any way modify statutory law.” Opinion of the Justices, We agree that “[r]ules adopted by State boards and agencies may not add

from such appraisal improvements on the open space land.” that, in appraising open space land at current use values, selectmen exc lude Such an interpretation would impermissibly contradict the statutory directive not, and did not, allow golf course improvements to be assessed as open space. p. 6 6

roughs were being assessed as ‘Buildings’ by the Town.” hav e reasonably assumed that its greens, fairways, tees, sand traps and the years 1992 through 2000 because it “never actually knew nor should it discovery rule. Specifically, it argues that it did not challenge its tax bills for under the doctrines of equitable tolling, fraudulent concealment, and the contends that it should be excused from meeting this tim eliness requirement III to the selectmen or assessors for an abatement of the tax.” The Club 7 p. 6 6:1 - a, and not afterwards, apply in writing on the form set out in paragraph of a tax . . . may, by March 1, following the date of notice of tax under RSA 2000. RSA 76:16, I (2003) provides: “Any person aggrieved by the assessment retroactively and to grant the Club a refund for taxes it paid from 1992 through The Club cross - appeals the trial court’s refusal to apply this ruling

amount.” on the 247 acres of open space land . . . except for the agreed - upon current use affirm the trial court’s ruling that the Town cannot assess “any additional tax and similar golf course components are to be included as part of the land, we that the plain and ordinary meaning of former Rev 1204.01 is that tees, gree ns Opinion of the Justices, 121 N.H. at 559. Because we previously determined pursuant to a valid delegation of authority, had the force and effect of law, land from current use taxation. Thus, former Rev 1204.01, promulgated specify which alterations could be present without disqualifying the altered board to define golf course, the legislature delegated to it the authority to natural condition. We c onclude that by then directing the current use advisory contemplated that this qualifying land would already be altered from its for conveyance of a discretionary easement. Thus, the legislature clearly provided that land that “is used for a golf course” was eligible to be considered In RSA 79 - A:15, III (1991) (repealed 199 p. 6 6), the legislature explicitl y

legislature to be consistent with its open space objectives. falling within the statutory definition of open space land, was deemed by the easements provided a means for maintaining land in a use that, although not chapter.” (Emphasis added.) Thus, the statutory scheme for discretionary use of such land to a more intensive use inconsistent with the purposes of this easement to the town or city not to subdivide, develop, or otherwise change the A:15 may apply to the selectmen or the mayor and council to grant an received a permit to convey a discretionary easement as provided in RSA p. 7 79 - A:17, I (1991) (repealed 199 p. 6 6) provided that “[a]ny owner of land who has RSA 79 - A:15, I (1991) (repealed 1996) (emphasis a dded). Specifically, RSA 79 or city, to “keep the land in a use consistent with the purposes of this chapter.” treatment by binding itself, in a discretionary easement conveyed to the town the criteria for open space land” to n evertheless qualify the land for current use scheme provided a mechanism for “[a]ny owner of land which does not meet As noted above, the discretionary easement provisions in the statutory 7

absent an unsustainable exercise of discretion.” Grenier v. Barclay Square “We will not overturn the trial court’s decision concerning attorney’s fees

(quotation omitted). been] esta blished,” Dow v. Town of Effingham, 148 N.H. 121, 133 (2002) secure a clearly defined right . . . [and] bad faith on the part of the [Town has (quotation omitted); or (2) It has been “forced to seek judicial assistance to position is patently unreasonable,” Kukene v. Genualdo, 145 N.H. 1, 3 (2000) following theories: (1) It has been “forced to litigate against an opponen t whose fees. The Club contends that it should be awarded fees under either of the Finally, the Club challenges the trial court’s failure to award it attorney’s

not fraudulent. categorization may seem, the trial court could reasonably have found th at it is are listed under the category “buildings.” Again, however imprecise this breaks down assessed value between land and buildings, all non - land items record supports this finding. There was te stimony that where a town’s tax bill that “the Town did not fraudulent[ly] conceal its taxing methodology.” The defendant.” Conrad v. Hazen, 140 N.H. 249, 253 (1995). The trial judge found the tolling of the st atute of limitations based on the wrongful conduct of the “The doctrine of fraudulent concealment is an equitable ground to justify

without merit. not be applied. Under similar reasoning, the Club’s discovery rule argument is so supports the tri al court’s ruling that the doctrine of equitable tolling should have informed itself about the Town’s assessing practices. That it failed to do ways to reduce its tax burden following the 198 p. 7 7 revaluation, the Club could S ullivan, 682 N.E.2d 624, 635 (Mass. 1997) (citation omitted). While exploring doctrine will be held to a duty of reasonable inquiry.” Protective Life Ins. Co. v. the information essential to bringing suit. A party attempting to invoke that prospective plaintiff did not have, and could not have had with due diligence, “[T]he doctrine of equitable tolling is applicable onl y where the

that would invoke equitable tolling. that t he Town’s practice did not create the kind of extraordinary circumstance that was actually being included, the trial court could have reasonably found on the tax bills.” Although the Town’s categorization did not make obviou s all the 24 p. 7 7 acres of greens, fairways, sand traps, tees and roughs as “Buildings” Club contends that the Town did mislead it by “disguising the assessments of plaintiff is actively misled by the defendant about the c ause of action.” Id. The Am. Jur. 2d Limitation of Actions, § 174 (2000). It “applies principally if the prevented in some extraordinary way from exercising his or her rights . . . .” 51 the statute of limitations deadline, is typically available only if the claimant was “[E]quitable tolling, which allows a plaintiff to initiate an action beyond p. 8 8

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

attorney’s fees. Manchester, 142 N.H. 312, 31 p. 8 8 (1997), and we accordingly affirm the denial of the issue “was a fair and reasonable ground for litigation,” Casico v. City of subject to a discretionary easement are taxable improvements to land. Thus, had not addressed whether such amenities as tees and greens on a golf course courts.” Rix v. Kinderworks Corp., 136 N.H. 548, 553 (1992). Until now, we litigant who contested an arguable issue of law that had not been settled by t he have noted that “[i]t would be inappropriate to assess attorney’s fees against a We conclude that the trial court’s exercise of discretion is sustainable. We

made with any malice. find that the position espoused by the defendant was frivolous or the Court has elected not to adopt that legal conclusion, it cannot the golf holes in addition to taxing the underlying land. Although evidence to justify its legal conclusion that it was permitted to tax cannot find that it acted in any way in bad faith. It put forth some While the defendant has not prevailed in this litigation, the Court

brackets omitted). The trial court found: Commercial Condo. Ow ners’ Assoc., 150 N.H. 111, 115 (2003) (quotation and