2004-435, APPEAL OF TOWN OF BETHLEHEM

The petitioner, Town of Bethlehem (Town), appeals an order

Braley on the brief, and Mr. Gould orally), for the respondent. Brown, Olson & Gould, P.C., of Concord (Bryan K. Gould and Philip R.

Edmund J. Boutin orally), for the petitioner. Boutin & Altieri, PLLC, of Londonderry (Brenda E. Keith on the brief, and to press. Errors may be reported by E-mail at the following address:

(New Hampshire Department of Environmental Services) APPEAL OF TOWN OF BETHLEHEM

page is: http://www.courts.state.nh.us/supreme.

No. 2004-435 editorial errors in order that corrections may be made before the opinion goes Department of Environmental Services Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as fencing.

p. 2 system, the landfill cap system as to both air and water pollution, and the litter

with respect to the maintenance buildings and shop floor drain collection 2 DES affirmed its March 12, 2003 decision insofar as it denied tax exemptions the landfill gas collection system; and (8) the landfill gas monitoring system.

existence of misapplied RSA 72:12-a;

system.

soil borrow area materials incorporated into the swales and liner system; (7) Env-Wm 102.129; (5) DES’ handling of this matter violated the Administrative Constitution; (4) DES’ orders violated New Hampshire Administrative Rule, Constitution; (3) DES’ orders violated Part I, Article 10 of the State appealed to this court, and later sought to amend its appeal, asserting the (2) DES’ orders violated Part II, Article 5 of the State In this appeal, the Town argues that: (1) DES misinterpreted and facility also qualified for tax exemptions: dated November 28, 2005. alleged ex parte communications. DES rejected the Town’s arguments by order motion to disqualify officials in the DES Commissioner’s office due to the answer questions concerning the alleged ex parte communications, and a system; and (4) the candlestick flare used as part of the landfill gas collection response, the Town filed a motion for rehearing, a motion to compel DES to part of both the maintenance building and the shop floor drain and collection invited the Town and NCES to submit further evidence and argument. In of the leachate evaporation system; (3) the oil and water separator listed as instrumentation and power lines; (5) the groundwater monitoring wells; (6) the DES file. We remanded the case for further proceedings. On remand, DES conveyance, and disposal system; (4) the sideslope riser buildings, ex parte communications that it recently had received from the and fertilization; (2) the double liner system; (3) the leachate collection, The Town then moved for rehearing, which DES denied. The Town

granted NCES’ motion in part, concluding that the following components of the

excavation and stormwater control measures; (2) the enclosed flare component

of lined, riprap and gabion swales, culverts and berms, grading, and grass seed

engineer, and visiting the facility. NCES moved for rehearing. By order dated January 5, 2004, DES Town and a resident of Bethlehem, reviewing a report prepared by the Town’s application and supporting documentation, reviewing documents filed by the

exemption: (1) the detention ponds and silt fencing listed as part of the only the following components of the facility qualified for some form of tax On March 12, 2003, after completing its investigation, DES ruled that

response, DES conducted an investigation that included reviewing NCES’ exemptions pursuant to RSA 72:12-a on all components of the facility. In with the provisions of this section.

p. 3 device, appliance, or installation is used in accordance chapter for the period of years in which the facility, section, exempted from the taxes levied under this

percentage thereof determined in accordance with this

to how DES interpreted and applied the statute to the facility’s components. reject its assertions. Accordingly, we turn to the Town’s arguments pertaining facility and any real estate necessary therefore, or a

pollution shall be entitled to have the value of said controlling, or eliminating any source of air or water

contends that DES essentially granted a tax exemption to the whole facility, we

NCES sought an exemption.

components were eligible for a tax exemption. Thus, insofar as the Town components of that facility and determined that eight of twelve of those entirety, was eligible for a tax exemption. Rather, DES focused upon certain treatment facility, device, appliance, or installation

constructs, installs, or places in use in this state any

misapplied RSA 72:12-a with respect to each of the components for which

meaning of RSA 72:12-a, DES did not determine that the NCES facility, in its

Any person, firm or corporation which builds,

RSA 72:12-a, I, provides:

from taxation under RSA 72:12-a; and (2) DES misinterpreted and then under RSA 72:12-a because: (1) a landfill, in its entirety, may not be exempt determined that eight components of the facility qualified for tax exemptions

landfill, in its entirety, does not constitute a treatment facility within the the agency’s decision is unjust, unreasonable or unlawful. As to the Town’s first argument, even if we assume arguendo that a

narrow.

The Town argues that DES unjustly, unreasonably or unlawfully

I. RSA 72:12-a

when the appealing party shows by a clear preponderance of the evidence that trier of fact in reviewing them. Id. However, we will overturn agency decisions findings are deemed prima facie lawful and reasonable and we do not sit as a

Appeal of Town of Newington, 149 N.H. 347, 349 (2003). Agency

The scope of our review of agency decisions under RSA 72:12-a is

communications. We address each argument in turn. Constitution; and (6) DES mishandled certain alleged ex parte Procedure Act (APA) and the procedural due process guarantees of our State burning boiler in

p. 4 facility.

RSA 72:12-a. being to improve the quality of the thing undergoing treatment.” 4

under RSA 72:12-a. Rather, the statute speaks of “ pollution in order for any one part of that facility to qualify for a tax exemption not effectuate treatment, the Town argues that our analysis of the barkof a landfill facility must reduce, control, or eliminate a source of air or water device, appliance or installation was not unjust, unlawful or unreasonable.

“treatment” in analyzing DES’ decision regarding the components of the NCES

to reduce, control or eliminate a source of pollution satisfy the requirements of of something to some action or process with a special end in view, the end often

NCES facility and its components do not effectuate treatment. In Berlin, we

Berlin, 131 N.H. at 289-90, requires us to conclude that the

In support of its position that the NCES facility and its components did the plain language of the statute does not indicate that every single component evaluate whether particular components constituted a treatment facility,

N.H. at 290. Both sides agree that we should apply this interpretation of

treatment. NCES counters that components of an integrated system designed context of RSA 72:12-a, we previously held that “treatment” is “the subjection components, it erred in determining that these components effectuated components effectuated “treatment” within the meaning of the statute. In the components; and (2) even if it is proper for DES to evaluate individual The Town next asserts that DES erred in concluding that the asserted

evaluate the facility as a whole rather than as separate components. That is, ‘reduction, control, or elimination.’” (emphasis added)). Thus, DES’ decision to installation which ‘treats’ something for the purpose of air or water pollution as it is written, the applicant must have a facility, device, appliance or 285, 290 (1988) (“To obtain a tax exemption under RSA 72:12-a (Supp. 1988), (emphasis added); see also RSA 72:12-a, III; Appeal of City of Berlin, 131 N.H. controlling, or eliminating any source of air or water pollution.” RSA 72:12-a, I device, appliance, or installation wholly or partly for the purpose of reducing,

words that the legislature did not include. As to the Town’s first argument, the statute does not require DES to meaning to the words used.

whole.

The Town makes two statutory-based arguments: (1) that the statute

as written and will not consider what the legislature might have said or add

examining the language of a statute, we ascribe the plain and ordinary In the Matter of Beal & Beal, 153 N.H. 349, 350 (2006). When legislature's intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiter of the double liner system, leachate would not be collected and treated.

p. 5 the quality of the runoff and thus effectuating “treatment.” the sediment it carries as a source of leachate pollutants, thereby improving

system did not accomplish any form of treatment. DES found that without the

runoff to certain measures or processes which control both the water itself and

surface water, while the Town engineer’s report indicated that the double liner liner system controlled flow and prevented leachate from entering ground and engineer’s report. For example, NCES’ application indicated that the double collection so as to prevent water pollution. In short, these components subject

components in the instant case. judgment for the expertise of the administrative agency.

described in NCES’ application and was met with opposition by the Town these components works to control water runoff and facilitate leachate RSA 72:12-a. In its application, NCES described the way in which each of grading, grass seeding and fertilization were eligible for tax exemption under

have been created. Thus, the bark-burning boiler is unlike the facility not the propriety of the evidence itself—we are reluctant to substitute our reduce, control or eliminate sources of air or water pollution which already not simply generate less pollution from the start; rather, these components Each of these components and its effects on air or water pollution was remaining components that DES determined to be eligible for a tax exemption. Our analysis is essentially the same with respect to each of the seven check dams, 4,000 feet of lined riprap and gabion swales, culverts, berms, unjust, unreasonable or unlawful. persuaded by a clear preponderance of the evidence that DES’ decision was N.H. at 350. The finding at issue is supported by the record, and we are not

Town challenges the conclusions DES drew from the evidence before it—and Appeal of Town of Hampton Falls, 126 N.H. 805, 809 (1985). Because the RSA 72:12-a. Here, however, DES found that the components of the facility do “pollution” is to be construed broadly in the context of RSA 72:12-a. See view of what could be considered pollution, we have held that the term Newington, 149 N.H. at 350. In addition, although the Town takes a narrow court, sits as the trier of fact and evaluates the competent evidence. stormwater control measures, including the detention ponds, silt fencing, stone installation). Although the Town presented contrary evidence, DES, not the RSA 72:12-a focuses upon the purpose of the facility, device, appliance or Public Serv. Co. of N.H., 124 N.H. 79, 88 (1983) (stating that inquiry under

excluding non-polluting fuels or non-polluting processes from taxation under

appliance or installation within the meaning of RSA 72:12-a.

In the instant case, DES determined that the facility’s excavation and

decision, at least in part, was based upon the legislature’s not expressly

dioxide into the air, did not constitute a pollution treatment facility, device, held that a newly-built bark-burning boiler system, which did not emit sulfur pollution. p. 6 subject landfill gas to the candlestick flare, thereby treating a source of

decreased. DES found that these two components conjunctively worked to

judgment for the expertise of the administrative agency.

unreasonable, unjust or unlawful. were part of the double liner system and, as such, effectuated treatment. monitoring wells do not accomplish any treatment. DES found that these wells water pollution. The Town argued that no leachate pollution is actually

propriety of the evidence itself; therefore, we are reluctant to substitute our

we are not persuaded by a clear preponderance of the evidence that they were application. Accordingly, because DES’ findings are supported by the record, contamination can be prevented. In contrast, the Town asserted that the monitoring systems monitor and evaporate leachate gasses to prevent air and that DES took its own site visit as part of its evaluation of the NCES

treat leachate pollution. challenges the conclusions DES drew from the evidence before it—not the treatment process. resolves conflicts in the evidence. See Newington, 149 N.H. at 350. The Town With respect to each of these findings, DES sits as the trier of fact and

of pollution. component of an overall system designed to collect, treat and control a source “release” from around the facility so that surface and groundwater Finally, NCES stated in its application that the gas collection and

were incorporated into the swales and liner system, which was determined to control as they accomplished sampling and monitoring functions as part of the these materials do not accomplish treatment. DES found that these materials the liner systems to prevent air and water pollution. The Town asserted that In addition, NCES asserted that the soil borrow area materials augment

collect and convey leachate. DES found that this device was a necessary Likewise, NCES indicated that the groundwater monitoring wells detect

found that these components were solely for the purpose of water pollution argued that these components did not effectuate any kind of treatment. DES and power lines monitor leachate and prevent water pollution. The Town Similarly, NCES indicated that sideslope riser buildings, instrumentation

water. In contrast, the Town submitted that this system did nothing more than controlling flow and preventing leachate from migrating to surface and ground conveyance, and disposal system protected surface and ground water by In addition, NCES’ application indicated that the leachate collection, satisfied. p. 7 municipality. Thus, the constitutional mandate of uniformity and equality is

requirements both across the State and within each taxing district or

applied, would be uniform as to all property meeting the statutory

within, the said state; . . . taxes, upon all the inhabitants of, and residents proportional and reasonable assessments, rates, and 7

authorize gifts by towns to corporations organized for profit, it does not extend

in the statute. Accordingly, the effects on taxation of RSA 72:12-a, properly promote some proper object of public welfare or interest. apply for RSA 72:12-a exemptions and are subject to the requirements set forth constitutional limits have been transgressed. Property owners statewide may

welfare of this state, . . . and to impose and levy

at 380 (stating that although Part II, Article 5 limits the legislative power to profits. not unconstitutional simply because they are granted to a for-profit entity. any corporation having for its object a dividend of Id.

are constitutional if they are supported by just reasons and thereby reasonably while exempting other property.” Id. at 378 (quotation omitted). Exemptions operation of RSA 72:12-a exemptions does not alone indicate that the legislature possesses broad discretion to select certain property for taxation disproportionate tax burden on the remaining property in the taxing district, Furthermore, “[a]lthough exemptions necessarily result in a constitution, as they may judge for the benefit and

Id. at 380. same be not repugnant or contrary to this ordinances, directions, and instructions . . . so as the

money or credit directly or indirectly for the benefit of

378 (1999). That one parcel of property receives differing tax treatment by Justices (Mun. Tax Exemptions for Elec. Util. Personal Prop.), 144 N.H. 374, reasonable, equal in valuation and uniform in rate, and just. Opinion of the Part II, Article 5 thus requires that all taxes be proportionate and

wholesome and reasonable orders, laws, statutes,

court shall not authorize any town to loan or give its

to make, ordain, and establish, all manner of

Part II, Article 5 endows the General Court with the power

II, Article 5 of the State Constitution. We disagree. exempts one parcel of property—the facility—from taxation in violation of Part The Town next argues that DES’ January 5, 2004 decision impermissibly

II. Part II, Article 5 good and happiness of mankind.

p. 8 oppression, is absurd, slavish, and destructive of the nonresistance against arbitrary power, and

establish a new government. The doctrine of

Constitution.

people may, and of right ought to reform the old, or and all other means of redress are ineffectual, the perverted, and public liberty manifestly endangered,

arguments concerning an asserted violation of Part II, Article 5 of the State

therefore, whenever the ends of government are

was neither unjust, unreasonable nor unlawful, we reject the Town’s

is imbued with the principle of equality that pervades the entire constitution, Personal Prop.), 144 N.H. at 381. We have also recognized that this provision of government. Opinion of the Justices (Mun. Tax Exemptions for Elec. Util. setting forth a citizen’s right to reform an ineffectual or manifestly corrupt form emolument of any one man, family, or class of men; This provision of our constitution has commonly been regarded as

Since we have determined that DES applied RSA 72:12-a in a manner which this particular parcel of property from taxation, it violates Part II, Article 5. sole argument is that since DES’ January 5, 2004 decision exempts portions of

community, and not for the private interest or benefit, protection, and security, of the whole Government being instituted for the common

community. Part I, Article 10 provides: the State Constitution insofar as it creates unequal benefits across the reasonably promote a proper object of public welfare or interest. The Town’s The Town next argues that the DES decision violates Part I, Article 10 of

III. Part I, Article 10

facilities.”

supporting the statute. Nor does the Town argue that the statute fails to encouraging pollution control through tax incentives is not a just reason to the benefit and welfare of this state). The Town does not argue that 103 N.H. 268, 270-71 (1961) (noting that scenic beauty along highways relates pollution); RSA 125-C:1 (2005) (air pollution); see also Opinion of the Justices, legislative and statewide interest. See, e.g., RSA 485-A:1 (2001) (water has recognized protection against water and air pollution as a matter of

Berlin, 131 N.H. at 289 (citation omitted). Further, the legislature

was to create tax incentives for industry to construct pollution control In Berlin we observed that “[t]he clear intent of RSA 72:12-a (Supp. 1988)

exemption). to the authority of the legislature by its own act to provide a uniform community.

p. 9 guarantees regarding the common benefit, protection, and security of the whole Town’s argument that the DES order contravenes Part I, Article 10’s this case to be unjust, unreasonable or unlawful. Accordingly, we reject the

facility.” According to the Town, Rule 102.129, as it existed at the time of DES’ Moreover, we have not found DES’ application of RSA 72:12-a to the facts of

Oct. 28, 2005), which the Town contends set forth a definition of “treatment functioned unlike other tax exemptions in its effects either locally or statewide. Hampshire Administrative Rule, Env-Wm 102.129 (eff. Oct. 29, 1997; expired facility eligible for an RSA 72:12-a exemption, impermissibly ignored New

and nothing in the record demonstrates that DES’ decision in any way However, as we stated above, tax exemptions always create certain imbalances The Town’s fourth argument is that DES, in declaring components of the somehow impermissibly renders these public purposes or benefits uneven. state. IV. New Hampshire Administrative Rule, Env-Wm 102.129 is properly within the legislature’s discretion in acting for the welfare of the

control facilities.

argue that the DES decision, as specifically applied in the instant case, of the Justices, 115 N.H. 306, 308 (1975). Nevertheless, the Town appears to exemptions, provided that the statute at issue advances a public purpose and the creation of tax classifications is within the legislature’s discretion. Opinion N.H., 124 N.H. at 86 (discussing public benefit of RSA 72:12-a). In addition,

Berlin, 131 N.H. at 289; see Appeal of Public Serv. Co. of

through the provision of tax incentives for industry to construct pollution exemptions on the other, advances a public purpose by attempting to minimize or reduce pollution Article 10, not seriously dispute that RSA 72:12-a generally confers a public benefit and raising tax revenue to aid a particular electric utility would violate Part I, Applying these principles to the instant case, we note that the Town does provides some guideposts. Although we have previously determined that conferred by the exemption may be sufficient to render it constitutional. Id. Id. Thus, where, as here, a tax exemption is at issue, a public benefit

Article 10 does not require absolute equality of burden in the case of tax Elec. Util. Personal Prop.), 144 N.H. at 382. Similar to Part II, Article 5, Part I,

a distinction between directly raising tax revenues on the one hand and tax

see Opinion of the Justices, 88 N.H. 484, 489 (1937), we have drawn

In analyzing the Town’s claims under Part I, Article 10, our precedent

Id. among other protections, forms a basis for a citizen’s right to equal protection. favor of one citizen to the detriment of another. Id. Thus, Part I, Article 10, thereby providing support for the maxim that the law cannot discriminate in p. 10 “a proceeding in which the legal rights, duties, or privileges of a party are

the Town’s arguments concerning Rule 102.129.

A:36.” RSA 541-A:1, I (1997). Under the APA, a “contested case” is defined as management of both solid and hazardous waste in New Hampshire. pertains to hazardous waste management. Rule 102.129 pertained to the preclude DES from evaluating individual components. Accordingly, we reject

and constitutional arguments

followed in contested cases, as set forth in RSA 541-A:31 through RSA 541-

chapter 149-M pertains to solid waste management and RSA chapter 147-A “treatment facility,” especially since the plain language of RSA 72:12-a does not “processing or treatment facility” is necessarily the appropriate definition of they are interdependent or that what was included in the definition of Clause of our State Constitution. We address the Town’s statutory, regulatory, 72:12-a, portions of DES’ own administrative rules, and the Due Process NCES’ application as an adjudicative proceeding contravened the APA and RSA

collection, storage and transfer facilities, landfills and waste to another location. The term excludes time and ultimately transfers the treated or processed

The APA defines an adjudicative proceeding as “the procedure to be

149-M:7 and RSA 147-A:3, neither of which is a taxation statute. Instead, RSA seriatim.

and the Town has pointed to no legal or other authority which indicates that

The Town next argues that DES’ decision not to conduct its evaluation of

the processed or treated waste for a limited period of

“landfills,” Rule 102.129 was promulgated under the statutory authority of RSA

the term “treatment facility” in RSA 72:12-a. These are two discrete contexts, “processing or treatment facility” in Rule 102.129 encompassed or applied to chapters 149-M and 147-A undermine the Town’s claim that the definition of amended Oct. 28, 2005). The differing purposes of RSA 72:12-a and RSA Admin Rules, Env-Wm 101.02(a) & (b) (eff. Oct. 29, 1997; readopted &

waste for a limited period of time, subsequently which collects waste from any location, stores the

While Rule 102.129 defines “processing or treatment facility” to exclude

“Processing or treatment facility” means a facility

Rule 102.129 provided:

definition of ‘treatment facility.’” consideration of NCES’ application, “specifically exclude[d] a landfill from the rehearing triggers all of the requirements of the APA. The Town has not

p. 11 requirements for a “contested case.” concerning its involvement in the DES proceeding do not implicate the conducted pursuant to RSA chapter 541—it does not indicate that such a

not.

“contested case” under the APA.

Town was not a “party” within the meaning of the APA, its arguments rehearing or appeal, it specifically indicates that such a rehearing or appeal is

necessarily make it a “party” to the underlying tax exemption proceeding.

party to an adversarial-type proceeding, it could easily have done so. It did

never ruled upon the Town’s motion to intervene because it did not consider DES. In fact, DES expressly stated, in its November 28, 2005 order, that it submit comments to the agency [does not] make one a party” for purposes of a Town was named or officially admitted as a party to the proceedings before

as a “party” as that term is statutorily defined in RSA 541-A:1, XII. Since the Second, although RSA 72:12-a, VI confers upon the Town the right to request a e.g., RSA 541:3 (1997) (persons other than parties may move for rehearing). and VI and RSA 541-A:39 (1997). See, request a rehearing or appeal in accordance with RSA chapter 541 does not adjudicative proceedings. First, the fact that RSA 72:12-a permits the Town to tax exemption application the opportunity for a formal hearing and to become a petition for rehearing under RSA 72:12-a, VI conferred upon it a right to formal We find equally unpersuasive the Town’s contention that its right to

held that “the entitlement to notice of the proceedings and the opportunity to as a party.” RSA 541-A:1, XII (1997). Nothing in the record indicates that the (opportunity for municipality to submit data, views or comments). We have (opportunity for municipality to move for rehearing or appeal); RSA 541-A:39, I Accordingly, we conclude that DES was not required to treat the Town

conclude that the Town was not a “party” to the proceedings before DES. party. Instead, the Town’s involvement was pursuant to RSA 72:12-a, II, IV

550 (2006). If the legislature desired to permit a municipality which opposed a

admitted as a party, or properly seeking and entitled as a right to be admitted by applicant); RSA 72:12-a, IV (notice to municipality by DES); RSA 72:12-a, VI

adjudicated pursuant to the “contested case” procedures of the APA. We In addition, the Town was not entitled as of right to be admitted as a exemption to NCES and was therefore a party whose rights were required to be matter was a “contested case,” the Town contends that it opposed granting an

“Party” is defined in the APA as “each person or agency named or

for hearing.” RSA 541-A:1, IV (1997). In support of its position that this required by law to be determined by an agency after notice and an opportunity p. 12 IV.” exemption application);

of our State Constitution.

comment in any matter that is not a contested case as defined by RSA 541-A:1, violated municipality’s due process rights in evaluating RSA 72:12-a tax

Due Process Clause protects only subjects), N.E.2d 923 (Ill. 1991); 16B Am. Jur. 2d Constitutional Law § 930 (1998). For Control Bd., 566 N.E.2d 724, 726-27 (Ill. App. Ct. 1991), appeal denied, 575 1996), appeal denied, 667 N.E.2d 1063 (Ill. 1996); Village of Sauget v. Pollution may assert a due process claim against a state agency under Part I, Article 15 1978); Village of Schaumburg v. Doyle, 661 N.E.2d 496, 499-501 (Ill. App. Ct.

Hampton’s assertion that Water Supply and Pollution Control Commission State Constitution. also Town of Hampton Falls, 126 N.H. at 814 (declining to reach Town of raised by Town in context of pollution control tax exemption proceedings). See Energy, LLC, 822 A.2d 1114, 1117 (Me. 2003) (discussing due process issue

state agency’s actions on state constitutional due process grounds because conclude that DES was not required to apply Part 204. issues the Town raised in the remanded proceedings. Security, 140 N.H. 703, 710 (1996) (state agency cannot challenge another

Neither DES, NCES, nor the Town has addressed whether a municipality

text of the rules themselves. Part Env-C 205 “appl[ies] to the conduct of requirement. 1 K. Davis & R. Pierce, Jr., framework violates state constitutional due process guarantees.

due process right to an adjudicative hearing under Part I, Article 15 of our turn to its constitutional argument. The Town argues that it had a procedural regulations.” Having addressed the Town’s statutory and regulatory contentions, we

conclude that the proceedings before DES constituted a “contested case,” we Rule, Part Env-C 204, required DES to conduct an adjudicative hearing on the N.H. Admin Rules, Env-C 205.01. Absent a proper basis upon which to

Env-C 205). Which set of rules applies in a given proceeding is set forth in the not expressly require formal adjudicative proceedings as containing such a We observe that many courts have been reluctant to construe statutes that do Part Env-C 204) and one for non-adjudicative hearings (N.H. Admin Rules, Part adjudicative hearing as described in RSA 541-A:31-:36 (1997 & Supp. 2005). DES has two sets of rules: one for adjudicative hearings (N.H. Admin Rules,

Town of Nottingham, 153 N.H. at 554-55 (quotation omitted).

well settled that an administrative agency must follow its own rules and

We now turn to the Town’s argument that New Hampshire Administrative

385 (3d ed. 1994). We are likewise reluctant.

upon receipt of the Town’s motion for rehearing (or on remand), to conduct an pointed to any provisions of RSA chapter 541 that would have required DES, p. 13 13

documents, e-mails, and handwritten notes. Initially, the Town was not made

process – dimension. interest, the Town’s participation is of a statutory – not constitutional due

of our constitution.” (citation omitted)); between representatives of NCES and DES. These communications consist of of taxation. Classifications made for just reasons do not violate any provisions required DES to handle differently certain alleged ex parte communications anything to which it was entitled. The Town also argues that the APA and Part I, Articles 15 and 35 circumstances of this case. VI. Ex Parte Communications

interest is an individual entitlement grounded in State law. granted, a successful due process claim must be based upon a protected this State except by authority of the legislature.”). Absent such a property 294, 296 (1975) (“As a general rule taxes cannot be assessed and collected in

515 (1977) (“The legislature has broad discretionary powers to classify subjects

taxation, a valid tax exemption statute, properly applied, would deprive it of involved and we do not discern a protected liberty interest under the failed to explain why, given the legislature’s broad powers in the area of whether a legally protected interest has been implicated. at 659. The Town has not identified any such entitlement. The Town has

meaning of Part I, Article 15. The hallmark of a legally protected property general sense of the word, in ensuring that improper exemptions are not statutes does not necessarily mean that it has a “property interest” within the That the Town may participate in tax exemption decisions by operation of

conclude that it has not. whether the Town has advanced a legally protected property interest. We wrongful deprivation of the protected interest. 09 (2005) (describing liberty interests generally). Thus, the question becomes

N.H. 654, 659 (1986). The Town does not argue that a liberty interest is here due process, we typically employ a two-prong analysis. Initially, we ascertain liberty or property interest. Midway Excavators, Inc. v. Chandler, Comm’r, 128

of taxation to other taxpayers.” While the Town may have an “interest,” in the “clear interest in precluding improper exemptions that would shift the burden In terms of a legally protected interest, the Town contends that it has a

whether the procedures provided afford appropriate safeguards against a N.H. Div. of Motor Vehicles, 141 N.H. 677, 678 (1997). We then determine

In determining whether particular procedures satisfy the requirements of

raise its due process challenge under Part I, Article 15. purposes of this appeal, we will assume, without deciding, that the Town may capacity.

p. 14 here advanced any right or legal interest. and consistent with our due process analysis, we note that the Town has not

prerequisite of RSA 541-A:36 has not been satisfied. judges and members of administrative boards acting in a quasi-judicial established that the proceedings before DES were a contested case, a

submissions made by anyone, including the applicant and the Town. Further,

after weighing and considering such evidence and arguments as the parties advanced any proper basis upon which to conclude that the decision of DES two or more parties with competing interests). Accordingly, the Town has not Board, 125 N.H. 262, 266-67 (1984) (discussing case involving dispute between of humanity will admit.” We have held that this mandate applies to both trial Cf. Winslow v. Holderness Planning RSA 541-A:36 applies only to contested cases. Because the Town has not concerning the communications. statutorily authorized to investigate and make a determination regardless of allow it to present whatever data, views or comments it desired, it was (quotation omitted). Here, while DES was obligated to notify the Town and to

nature if officials are bound to notify, and hear the parties, and can only decide

Appeal of Grimm, 141 N.H. 719, 720 (1997). “An act is judicial in

that “[i]t is the right of every citizen to be tried by judges as impartial as the lot types of communications at issue here, its arguments fail. By its plain terms, Constitution, we find them equally unpersuasive. Part I, Article 35 provides gave the Town and NCES an opportunity to submit evidence and argument parte communications in the context of Part I, Article 35 of the State To the extent the Town makes its arguments pertaining to the alleged ex file. Against this factual backdrop, we turn to the Town’s arguments. Town’s due process arguments fail. See Midway, 128 N.H. at 659. outcome, we again disagree. Absent a protected liberty or property interest, the To the extent the Town argues that Part I, Article 15 required a different

these allegedly

To the extent the Town argues that RSA 541-A:36 (1997) prohibits the amend its appeal. We remanded for further proceedings. On remand, DES discovered. Shortly after the Town received these communications, it moved to order found that DES disclosed these materials to the Town when they were record that already had been published in news media and placed in the DES the facts contained in the allegedly ex parte materials were matters of public documents pertained to pending legislation. DES also found that a number of submitted by NCES or the Town. DES further found that many of these

ex parte documents were in its file, many of them were not

DES then issued a post-remand order, in which it found that although

Town two to three months after it filed its first appeal with this court. The DES aware of these documents, e-mails, and notes – they were disclosed to the p. 15 15

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

Therefore, for the foregoing reasons, the decision of DES is affirmed.

alleged ex parte communications. was unjust, unreasonable or unlawful as to its determinations regarding the