2004-805, JOHN SCHIAVI & a. v. CITY OF ROCHESTER & a.

five years of age and older, was licensed as a manufactured housing park in Ta ra Estates housing park, a community in Rochester for persons fifty -

to the individual residents’ water and sewer bills. We vacate and remand. sewer usage; and (2) make available all appropriate deductions and exemptions and begin direct billing for each individual housing park resident’s water and Esterberg, Commissioner of Public Works, to: (1) comply wit h RSA 205 - A:6, II mandamus requiring the respondents, the City of Rochester (City) and Melodie an order of the Superior Court (Mohl, J.) denying their petition for a writ of Schiavi and housing park residents James Barker and William Watson, appeal GALWAY, J. The petitioners, manufactured housing park owner John

respondents. and Dianna J. Parker on the brief, and Mr. Wensley orally), for the Wensley, Wirth & Azarian, P.L.L.C., of Rochester (Danford J. Wensley

Melinda E. Dupre on the brief, and Mr. Bianco orally), for the petitioners. Bianco Professional Association, of Concord (James J. Bianco, Jr. and

No. 200 4 - 805 Strafford

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

p. 2 205 - A:6, II has occurred. RSA 205 - A:6, II (2000) provides: be billed directly by the utility provider after a conversion pursuant to RSA The petitioners contended below that the residents have a legal right to

petition for writ of mandamus. The City’s refusal to bill the residents directly resulted in the filing of t his water usage, requiring Schiavi to determine each resident’s share of the bill. the residents individually, but it has continued to send him a single bill for manufactured house in the park. Schiavi requested that the City directly bill permission from the City or the Utility, installed individual meters on each services for the entire park. In p. 2 2001, Schiavi, at his own expense and without single master meter since 1986. The Ci ty bills Schiavi directly for the water Tara Estates has received water service from the Utility measured by a

swimming pools. such as water used for watering lawns and gardens, washing cars, and filling amount charged to a custo mer for water that does not enter the sewer system, estate taxes. Additionally, the City offers a deduction meter, which reduces the customer who qualifies for an “elderly exemption” under the customer’s real The City automatically discounts the water bills of any residential

services. services to its customers, and City residents receive quarterly bills for water Rochester Department of Public Works. The Utility provides water and sewer “municipal water utility” called Water Supply Works (Utility), as part of the Pursuant to RSA chapter 38, the City established an d operates a

contract with the City, in 1986. standards. The City granted a license to Tara Estates, which constituted a Further, onsite improvements would be designed according to the City’s responsibility of Tara Estates or its successors and of the in dividual lot lessees. onsite improvements, including sewer and water lines, would be the that the work was done properly. In addition, the attorney represented that work, and take final accepta nce and title to it, and have a bond to make sure Specifically, the City would have the right to review the design, inspect the off - site, leading up to the park, would be under the auspices of the City. repre senting the park stated during the application process that all work done extension of municipal water and sewer lines to the park. The attorney predecessors in interest entered into an agreement with the City for the During the approval process for establishing Tara Estates, Schiavi’s

own their homes but rent the lots upon which the homes are placed. 1986. Schiavi has owned and operated Tara Estates since 1991. The residents p. 3 3

manufactured housing park tenants and the owner. legislature intended the statute to regulate only the relationship between the 510 (2004). We disagree, therefore, with the trial court’s conclusion that the requiring mandatory enforcement. Franklin v. Town of Newport, 151 N.H. 508, Generally, the use of the word “shall” in a statutory provision is a command, by the utility for the use of such services.” RSA 205 - A:6, II (emphasis added). that burden, the “manufactured housing park tenants shall be billed directly burden to effectuate and pay for those steps. When the park owner has met necessary for the shift in billing have been identified, it is the park owner’s direct billing of the housing park tena nts. Once the steps reasonably steps constitute the “conversion” from the utility’s billing the park owner to its necessary for the utility to implement that shift. Those reasonably necessary park owner is res ponsible for the cost incurred in the steps reasonably tenants. Once the right to shift payment responsibility has been exercised, the to shift responsibility for the payment of certain utilities from himself to the Pursuant to RSA 205 - A:6, II, a park owner has the ability and the right

v. Fall Mt. Reg. Sch. Dist., 151 N.H. p. 3 399, 401 (2004). question of law, we review the trial court’s decision de novo. Town of Acworth Bierman, 150 N.H. 393, 395 (2003). Because interpretation of a statute is a plain and ordinary meanings to the words the legislature used. Nilsson v. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515 (2004). We ascribe the the legislature as expressed in the words of the statute considered as a whole. In matters of statutory interpretation, we are the final arbiter of the intent of language. Appeal of Pinetree Power, 152 N.H. ___, ___, 871 A.2d 78, 81 (2005). interpretation, we begin our inquiry with the examination of statutory To the extent that a dispute raises a new issue of statutory

private.” We disagree. park tenants and owners, and has no effect on utility providers, municipal o r legislature, is meant to regulate solely the relationship between mobile home The trial court concluded that “the statute, as intended by the

use of such services. housing park tenants shall be billed directly by the util ity for the RSA p. 3 37 p. 4 4 and RSA 378. After such a conversion, manufactured except as permitted by the public utilities commission pursuant to utility meters, if any, on each manufactured home in the park, incurred in the conversion, including the cost of install ation of the park owner or operator shall be responsible for the cost payment of water, sewer, or any other utility service to the tenant, In the event that a park owner or operator shifts responsibility for 4

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

do so. individually. If not, Schiavi should be afforded the reasonable opportunity to for those reasonable steps. If so, then the City must bill the park tenants determine if Schiavi has taken the proper actions to both accompl ish and pay effectuate this billing change, or “conversion.” The trial court must then individual tenants, what steps are reasonably necessary for the City to decision and right to shift responsibil ity for payment of the utility bill to the On remand, the trial court must determine, pursuant to Schiavi's

the statute establishes that there may be other costs. See id. the sole cost that may be involved in the conversion to individual tenant billing, Id. (emphasis added). As the installation of utility meters is not identified as installation of utility meters, if any, on each manufactured home in the park.” responsible for the cost incurred in the conversion, including the cost of addition, the statute states that “the park owner or operator shall be shift the payment responsibility to the tenants. See RSA 205 - A:6, II. In a conversion, the language clearly empowers the park owner or operator to Although the statute defines neither a shift in payment responsibility nor

such, we vacate its denial of the petitioner’s writ and remand. The trial court’s interpretation of the statute was an error of law. As

has failed to shift responsibility. because of the City’s re fusal to bill the tenants directly, not because Schiavi Although Schiavi continues to make final payment of the utility bill, it is simply party, which processes it, and he then charges each tenant accordingly. in stalled meters. He then, for a charge, submits this information to a third determine each tenant’s share of the total utility bill by his own reading of the residents. Our review of the record indicates that Schiavi does, in fact, pays the utilities bills, he has not shifted the payment responsibility to the The trial court also erred in reasoning that because Schiavi currently