2005-244, H. BOONE PORTER, III & a. v. TOWN OF SANDWICH

The plaintiffs, H. Boone Porter, III and Margaret C. Porter,

Spector on the brief, and Ms. Spector orally), for the defendant.

Mitchell & Bates, P.A., of Laconia (Walter L. Mitchell and Laura A.

Alexander on the brief, and Mr. Alexander orally), for the plaintiffs.

Ransmeier & Spellman, P.C., of Concord (Timothy E. Britain and John T.

Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. H. BOONE PORTER, III & a.

No. 2005-244 errors in order that corrections may be made before the opinion goes to press. Carroll Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial 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 because they did not follow the statutorily required procedure in RSA 76:17. p. 2 and that the trial court lacked subject matter jurisdiction to hear their claim

Town’s motion to dismiss, concluding that the Porters sought a tax abatement

shall be assessed if the Town undergoes a general revaluation.”

that tests the facts in the complaint against the applicable law. facts in the plaintiff’s favor. We then engage in a threshold inquiry

petitioning the superior court. RSA 76:17 (2003). The trial court granted the 2 seeking an abatement to first apply to the selectmen or assessors before statutorily prescribed procedure for such a claim, which requires a taxpayer

this time regarding the interpretation of RSA 79-D as to how the Structures

true, and we construe all reasonable inferences drawn from those

1124, 1127 (2005) (quotations and citations omitted). essentially filed a claim for tax abatement, and that they failed to follow the their suit because it raised questions of law, not a claim for abatement. Agreement. The Porters conclude that the trial court had jurisdiction to hear Berry v. Watchtower Bible & Tract Soc., 152 N.H. ___, ___, 879 A.2d

Agreement. The Agreement also provided: “The parties make no agreement at increase as a result of repairs or improvements made in accordance with the than their full value as of a certain date, and that such assessment would not attempts to lower the assessment, the Porters sued the Town in superior court. recovery. We assume all facts pleaded in the plaintiff’s writ are the Porters’ two historical structures from $8,407 to $50,527. After failed are reasonably susceptible of a construction that would permit of all properties, including the Porters’. The Town increased its assessment of is to ascertain whether the allegations pleaded in the plaintiff’s writ In reviewing the trial court’s grant of a motion to dismiss, our task

against the Town. The Town moved to dismiss, arguing that the Porters had property rights, specific performance of the Agreement, and mandamus relief abatement, but rather a legal interpretation of RSA chapter 79-D and the the Agreement and RSA chapter 79-D. The Porters sought an adjudication of On appeal, the Porters argue that their suit did not seek a tax

exchange, the Town agreed to assess the buildings for twenty-five percent less

structures. In the summer of 2004, the Town conducted a general revaluation

The Porters argued that the Town’s increased assessment violated both

historical, agricultural buildings and accept an easement on their land. In instant case, the Agreement stated that the Porters would maintain their two of such structures benefits the public interest. RSA ch. 79-D (2003). In the Subsequent to the Agreement, the Porters repaired their two historical

structures that are both historical and agricultural, because the maintenance to enter into agreements to reduce taxes imposed upon residents who own than a question of the exercise of administrative discretion.” 3

p. 3 assessment, not issues of proportionality or inability to pay. Assuming that all

law. The interpretation of a contract is a question of law.

administrative remedies where the issue on appeal is a question of law rather

the Porters raised posed threshold questions as to the legality of the Agreement and misinterpreted RSA chapter 79-D. property. Pennelli v. Town of Pelham, 148 N.H. 365, 366 (2002). The issues of law that disproportionately. They argued, instead, that the Town violated the N.H. 232, 235 (1979). Statutory interpretation is also a question of law. other taxpayers.” College, 150 N.H. 431, 434 (2003); Erin Food Servs., Inc. v. 688 Props., 119 whether the petitioner is unlawfully or unjustly taxed as between him and the Dillman v. N.H. In the instant case, the Porters argue issues of contractual and statutory

We affirmed the trial court’s ruling, stating, “A party is not required to exhaust exhausted its administrative remedies before petitioning the superior court. Id. injunction. Id. The City appealed, arguing that Pheasant Lane should have

Id. The trial court granted Pheasant Lane’s request for an

permitted a governing body to issue a supplemental tax on an underassessed tax. pay the higher taxes levied by the Town, nor that the Town assessed them Id. The issue at trial was a question of law: whether RSA 76:14 (1991) declaratory judgment, and a permanent injunction to prevent the additional 141. Pheasant Lane petitioned the superior court, seeking mandamus relief, a what can and cannot be taken advantage of in [an abatement proceeding] . . . is property once, and then issued a supplemental tax bill in the same year. Id. at Lane, the City of Nashua taxed Pheasant Lane Realty Trust’s (Pheasant Lane) Lane Realty Trust v. City of Nashua, 143 N.H. 140, 141-42 (1998). In Pheasant required to follow the statutorily prescribed abatement procedure. Pheasant We have held that a plaintiff raising a question of law is not necessarily

Before the trial court, the Porters argued neither that they were unable to

principle of abatement law by stating, “[T]he true line of demarcation between 547, 552 (1854). Ansara v. City of Nashua, 118 N.H. 879, 880 (1978); Briggs’ Petition, 29 N.H. regarding abatements. In abatement proceeding may address a claim of inability to pay a tax levy. v. Town of Merrimack, 139 N.H. 253, 254-55 (1994). We have also held that an Kensington, 102 N.H. 399, 400 (1960); Society Hill at Merrimack Condo. Assoc. proportion to other property owners in the taxing district. E.g., Hodges v. abatement proceeding is whether the government has taxed the plaintiff out of Since Bretton Woods, we have repeatedly reaffirmed that the issue in an

Bretton Woods Co. v. Carroll, 84 N.H. 428, 431 (1930).

prior decisions regarding tax abatement law, we clarified the fundamental

past holdings and interpretations of the applicable statutory language To determine whether the Porters sought an abatement, we consider our p. 4 4

jurisdiction on the superior court.

upon our decisions in

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

not required to follow the statutorily prescribed abatement procedure to confer

inferences drawn from those facts in the Porters’ favor, we conclude, based the facts that the Porters allege are true, and construing all reasonable