2007-189, APPEAL OF PATRICK WALSH & a.

including a written request sent on June 22, 2006. The taxpayers never attempted to contact the taxpayers’ counsel on at least two occasions, No. 2007-189 sought to inspect the taxpayers’ homes. To this end, the Town’s tax assessor of assessment in the town. Following receipt of the applications, the Town tax year 2005 was disproportionately high when compared to the general level assessment, both as to land and buildings, on each of their properties for the separate applications for tax abatements with the Town, claiming that the tax The record supports the following. On March 1, 2006, the taxpayers filed

Board of Tax and Land Appeals

abatement applications. We affirm. respondent, Town of North Hampton (Town), to dismiss their respective tax of Tax and Land Appeals (BTLA or board), granting the motion of the and Thomas and Linda Walsh, appeal a decision of the New Hampshire Board DUGGAN, J. The taxpayers, Patrick and Karen Walsh, William Walsh,

Keane & Macdonald, P.C. Beaumont & Campbell Prof. Ass'n.

the brief and orally), for the respondent.

W. Macdonald on the brief, and Mr. Macdonald orally), for the petitioners.

(New Hampshire Board of Tax and Land Appeals)

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as be toward the end of the month.” p. 2 holidays, and that a convenient time for the inspection of their premises would previously informed you that the taxpayers would be out of town over the dates for the inspections. The letter also states, in pertinent part: “I had telephone call and informing him that February 1 or 2, 2007, were convenient assessor, and, the next day, sent a letter to the assessor confirming this On January 22, 2007, the taxpayers’ counsel telephoned the Town’s

the Town and the board.” taxpayers’ appeals because the taxpayers’ counsel “ha[d] been unresponsive to the taxpayers’ counsel. On January 18, 2007, the board dismissed the the board advising it of the Town’s January 2, 2007 telephone call and letter to update on the status of the inspections. The next day, the Town sent a letter to Meanwhile, on January 8, 2007, the board telephoned the Town for an

assessor] as soon as possible.” clients to provide [him] with some dates and [] w[ould] get back to [the 2007, the taxpayers’ counsel informed the assessor that he “ha[d] asked [his] counsel to contact him to schedule the inspections. By letter dated January 9, response, the assessor sent a letter that same day asking the taxpayers’ the taxpayers’ counsel to request inspections of the properties. Receiving no communications until January 2, 2007, when the Town’s tax assessor called the Town’s motions to dismiss. The parties engaged in no further inspections” of the properties “within twenty (20) days” and deferred ruling on On December 6, 2006, the board ordered the parties to “arrange for

denied.” to coordinate a date for the inspection, . . . consent to an inspection was never representative. The taxpayers maintained that, while “the parties were unable had received the June 22, 2006 letter and one telephone call from a Town the Town contacted them “numerous times,” but admitted that their counsel “pursuant to RSA 74:17.” The taxpayers in turn objected. They denied that position. The board treated the Town’s responses as motions to dismiss subject propert[ies,]” and attached the June 22, 2006 letter in support of its “not respond[ed] to numerous requests by the Town for . . . inspection[s] of the information.” Specifically, the Town asserted that the taxpayers’ counsel had board to deny the appeal for, among other things, “lack of local level appeal, the Town provided the requested information and further asked the appeals and asked for certain information concerning the properties. For each Approximately two months later, the board notified the Town of the

the board. assessments were incorrect. The taxpayers then timely appealed the denials to requests for inspections nor provided any evidence indicating that their abatement applications because the taxpayers had neither responded to the responded to these requests. In mid-August 2006, the Town denied the entirety (i.e. p. 3 disproportionality requires a review of the market value of the property in its

“unresponsive” to the Town’s request for inspections is unsupported by the relevant because “[a]ny property tax assessment appeal based on properties, and even if it did, the board’s finding that the taxpayers were inspection.” Second, the board found that inspections of the properties were they contend that the Town had no authority to seek inspections of the taxpayers’ counsel] contact[ed] the Town regarding ‘convenient’ dates for On appeal, the taxpayers assign five errors to the board’s decision. First, emphasized that it was “only after the board dismissed the appeals [that the determine the status of the appeals, and after the twenty-day deadline. It responded to the Town until after the board had contacted the Town to inspections.” Specifically, the board noted that the taxpayers had not ‘within twenty (20) days’ and to the Town’s attempts to schedule the 3 “were unresponsive both to its December 6, 2006 letter to arrange inspections reconsideration. First, the board found that the taxpayers and their counsel On February 14, 2007, the board denied the taxpayers’ motion for evidence indicating that either party notified the board of these inspections. reconsideration, the Town inspected the properties. The record contains no On February 6, 2007, before the board ruled upon the motion for (2003 & Supp. 2006); Appeal of Town of Wolfeboro 246, 248 (1998); see RSA chapter 541 governs appeals from BTLA decisions. RSA 71-B:12 RSA 76:16-a, V. find that it misapprehended or misapplied the law.” Appeal of Reid, 143 N.H. did.” Huston, 150 N.H. at 411. “[W]e will set aside an order of the board if we showing that there was no evidence from which the board could conclude as it 76:16-a, V (2003); RSA 541:13. “This presumption may be overcome only by a prima facie lawful and reasonable.” Wolfeboro, 152 N.H. at 458; see RSA “Findings of fact made by the BTLA on questions properly before it are deemed that it is unjust or unreasonable.” In re Huston, 150 N.H. 410, 411 (2003). errors of law, unless we are satisfied, by a clear preponderance of the evidence, Under RSA 541:13 (2007), “we will not set aside the board’s order except for

card[s].” On March 15, 2007, the taxpayers filed this appeal. assessed (the entire property) is accurately depicted on the assessment-record According to the board, these inspections further assure[] what is being “ , land and buildings) and the Town’s level of assessment.”

inspections of their homes were unnecessary because the inspections were unresponsive to the Town’s request. Second, the taxpayers contended that their letter of the same date, the taxpayers argued that they had not been reconsideration. First, relying primarily upon the information contained in the board’s dismissal of the appeals. The taxpayers asserted two grounds for Also on January 23, 2007, the taxpayers moved for reconsideration of taxpayers to “set forth fully every ground p. 4 the remaining issues that they have appealed. RSA 541:4 required the The taxpayers, however, failed to move for reconsideration with respect to

RSA 541:4. taxpayers’ appeal as to the first and third issues meets the requirements of for reconsideration in their first and third grounds for appeal. Therefore, the disproportionately assessed. The taxpayers have reasserted these two bases inspections were irrelevant to determining whether the land itself was not been unresponsive to the Town’s request for inspections; and (2) the why the board should not have dismissed their appeals: (1) the taxpayers had In their motion for reconsideration, the taxpayers asserted two reasons

to three of the five issues raised on appeal, and because they have not shown Because the taxpayers failed to comply with the requirements of RSA 541:4 as board’s order was unlawful or unreasonable. RSA 541:4 (emphasis added).

811. appeal or dismiss it on our own motion.” Id. at 775; see Hardy, 154 N.H. at appealing party has met the requirements of [RSA 541:4] we will refuse the this appeal. Appeal of White Mtns. Educ. Assoc. White Mtns., 125 N.H. at 774. “[W]hen a record does not demonstrate that the first take note of procedural deficiencies that infect the taxpayers’ positions in correct their own alleged mistakes before time is spent appealing from them.” requirements is obvious: administrative agencies should have a chance to Before addressing the merits of the taxpayers’ assignments of error, we N.H. 170, 173 (1996) (citation omitted); see RSA 541:4. “The reason for these absent good cause shown to specify additional grounds.” Appeal of Barry, 141 ground not set forth in the motion for rehearing is not reviewable on appeal, see RSA 541:4 (2007); Appeal of Hardy, 154 N.H. 805, 809 (2007). “Any unreasonable.” Appeal of Coffey, 144 N.H. 531, 533 (1999) (quotation omitted); which it is claimed that the decision or order complained of is unlawful or must first file a motion for rehearing setting forth fully every ground upon “In an administrative appeal pursuant to RSA chapter 541, the appealing party

characterizations. rather, only the disproportionality of the assessments within those inspections because they did not contest their buildings’ characterizations, but valuation assessments, the board erred in dismissing their appeals for lack of and fifth bases for appeal, the taxpayers argue that with respect to the building for the board to review these aspects of their appeals. Finally, in their fourth valuation assessments because inspections of their homes were not required improperly dismissed their abatement requests with respect to the land to the Town’s inspection requests. Third, the taxpayers assert that the board denying their abatement requests based upon their alleged unresponsiveness obtain administrative inspection warrants under RSA 74:17, I (2003) before evidence. Second, the taxpayers maintain that the Town was required to the burden of showing that the tax assessments were disproportionate. Gail C. p. 5 5 required both parties to arrange for inspections, it was the taxpayers that had Again, the taxpayers failed to act. While the board’s December 6, 2006 order taxpayers were “unresponsive” to the Town’s requests for inspections. board provided the taxpayers with another opportunity to allow inspections. board had sufficient evidence from which it could reasonably find that the than dismiss the appeals at the outset for lack of inspections, however, the opportunities to schedule inspections but failed to do so, we conclude that the by the Town for inspections. The taxpayers did not dispute this fact. Rather Furthermore, even after the Town board of this fact. In these circumstances, where the taxpayers had numerous that the taxpayers’ counsel had not responded to at least two earlier requests taxpayers’ motion for reconsideration, the taxpayers never saw fit to inform the When it held the Town’s motion to dismiss in abeyance, the board knew on February 6, 2007, approximately one week before the board denied the board dismissed the case. Finally, even though the inspections had occurred February 1 and 2, 2007, were convenient dates for inspection until after the reconsideration, the taxpayers’ counsel did not inform the assessor that Moreover, as the board noted in its order on the taxpayers’ motion for assessor with convenient dates for the inspections “as soon as possible.” December 6, 2006 order, it was simply to state that he would provide the another week. When he finally did respond, almost five weeks after the board’s week after the twenty-day deadline, the taxpayers’ counsel did not respond for

assessor to schedule inspections within the board’s twenty-day deadline. 2007). Despite this burden of proof, the taxpayers did not contact the Town’s Nadeau 1994 Trust v. City of Portsmouth, ___ N.H. ___, ___ (decided Aug. 17,

2007. As stated above, the board’s findings of fact are deemed prima further emphasize that the Town did inspect the properties on February 6, never “refused to grant consent” to enter the properties for inspections, and erred in dismissing their appeals. Specifically, the taxpayers assert that they request for inspections is unsupported in the record, and, therefore, the board “unresponsive” to the Town’s request for inspections. contend that the board’s finding that they were “unresponsive” to the Town’s Here, the record supports the board’s finding that the taxpayers were We now turn to the first of the two remaining issues. The taxpayers from which the board could conclude as it did.” Huston, 1 p. 5 50 N.H. at 414. the board’s factual findings unless we determine that there [i]s no evidence unlawful, Porter v. Sanbornton, 150 N.H. 363, 371 (2003). “We must affirm taxpayers to show that the board’s decision was clearly unreasonable or lawful and reasonable, Wolfeboro, 152 N.H. at 458, and the burden is upon the

Barry, 141 N.H. at 173; see also Hardy, 1 p. 5 54 N.H. at 811. preserved for purposes of this appeal and, therefore, we will not consider them. good cause to justify this failure, we hold that these claims were not properly person “in accordance with their appraisal p. 6 Under RSA 74:11 (2003), selectmen are required to assess a tax against a

tax abatement applications. RSA chapter 75 does not apply simply because it does not specifically refer to seeking information for an inventory under RSA chapter 74, we disagree that tax abatement applications. Assuming without deciding that the Town was not chapter 74; and (2) RSA chapter 75 does not apply because it does not address because: (1) the Town did not seek information for an inventory under RSA 74:17, II did not authorize the Town to seek inspections of their properties taxpayers’ appeals upon RSA 74:17. The taxpayers argue, however, that RSA The parties do not dispute that the board based its dismissal of the

taxes. appraisals, or lose their right to appeal any matter pertaining to the properties’ the assessors seek to obtain information necessary to complete inventories or Thus, taxpayers must either allow assessors to inspect their properties when

has not yet received.

exemptions for which such person may be entitled but which such person is liable and the right to appeal any appeal any matter pertaining to the property tax for

appraisal under RSA chapter 75] shall lose the right to

complete an inventory under RSA chapter 74 or

the purpose[] [of obtaining information necessary to

selectmen or assessing officials to enter property for

Municipal Law and Taxation § 22.01, at 253 (1993 & Supp. 2003) (emphasis (or taxpayer) is required to pay.” 16 P. Loughlin, New Hampshire Practice, Any person who refuses to grant consent to the appraisal determines the amount of tax for which a particular piece of property property determines its value. The assessment of property based on the specific methods for appraising property. RSA 75:1 (2003). “The appraisal of added.) RSA chapter 75, entitled “Appraisal of Taxable Property,” outlines the statement of the property for which such person . . . is taxable.” (Emphasis they [are] of the opinion that [their appraisal] does not contain a full and true

RSA 74:17, II (2003) provides:

the terms of the statute.” Appeal of Land Acquisition, L.L.C. taxpayers appearing before the board are entirely statutory and are limited by dismiss the appeals on this basis. “The powers of the board and the rights of Given this finding, we next consider whether the board could properly

494 (2000) (quotation omitted).

unresponsive. Accordingly, we affirm the board’s finding that the taxpayers were whole. Petition of State of N.H. (State v. Johanson) p. 7 legislative intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiters of the

error in this finding. “refus[al] to grant consent” to the assessors for the inspections. We find no concluded that the taxpayers’ “unresponsiveness” was tantamount to a “unresponsive” to the Town’s requests for inspections. In effect, the board

dismissed the appeals under RSA 74:17 because the taxpayers were grant consent” to the assessors to enter their properties. Here, the board their rights to appeal the Town’s abatement denials unless they “refuse[d] to taxpayers are correct that, pursuant to RSA 74:17, they would not have lost inspection” such that they lost their rights to appeal under RSA 74:17. The to the Town’s requests for inspections, they “never refused a request for an The taxpayers also appear to argue that, even if they were “unresponsive”

Webster’s Third New International Dictionary

taxpayers simply failed to respond to the Town’s multiple requests for acting to grant or deny the assessor permission to enter their properties, the the Town’s assessor to inspect their properties. Rather than affirmatively Here, as explained above, the taxpayers had numerous opportunities to permit unwillingness to do or comply with (as something asked, demanded, expected).” defines “refuse” as, among other things, “to show or express a positive

necessary to complete appraisals under RSA chapter 75, a purpose delineated Id. sought to enter the properties for the purpose of obtaining information might have said or add language that the legislature did not see fit to include. appraisals listed in RSA chapter 75. Accordingly, we conclude that the Town intent from the statute as written and will not consider what the legislature effectively reappraised the properties by using the methods and standards for the plain and ordinary meaning to the words used. Id. We interpret legislative the accuracy of these initial appraisals, the Town’s assessor would have September 5, 2007). When examining the language of the statute, we ascribe tax assessments of their properties. RSA 76:16, I (Supp. 2006). In confirming, 156 N.H. ___, ___ (decided sensibly determine whether the taxpayers had shown good cause to abate the that these prior appraisals were accurate and complete so that it could then Town sought to inspect the taxpayers’ properties to verify, among other things, chapter 75 and listed the appraisals on the properties’ tax record cards. The disproportionate. The Town obtained the prior appraisals pursuant to RSA were based in part upon the Town’s prior appraisals of these properties, were Here, the taxpayers asserted that their properties’ assessments, which

inaccurate appraisal would affect the property’s assessment. added). Because a tax assessment is based upon a property’s appraisal, an review of the market value of the property in its entirety (i.e. p. 8 “[a]ny property tax assessment appeal based on disproportionality requires a split the assessments into land and buildings, the board correctly found that taxpayers were being disproportionately taxed. While the taxpayers attempt to

conjunction with the buildings’ assessments to determine whether the separately, it would still have needed to examine those assessments in

in the aggregate the taxpayers “had the burden of proving that [their] taxable propert[ies] w[ere] Thus, even if the board could have addressed the land assessments from their buildings. Assuming this distinction is both plausible and relevant, 8 addressed, the taxpayers are treating their land as distinct taxable properties

buildings) and the Town’s level of assessment.” Because the taxpayers do not

property is assessed at a higher percentage of fair market value proving disproportionality, a taxpayer must establish that the taxpayer’s the Town and other similarly situated property. “[T]o carry the burden of disproportionately high when compared to the general level of assessment in assessments of their properties, “both as to the land and buildings,” were the appellant.” Loughlin, supra In asserting that the land assessments should have been separately § 27.07, at 282. In their abatement applications, the taxpayers asserted that the require the correction of errors of valuation whose joint effect is not injurious to proper, the taxpayer will not be entitled to an abatement since justice does not high, but the average assessment on all properties owned by the taxpayer is Manchester, 70 N.H. 200, 205 (1899). “If the assessed value of one property is Appeal of Sunapee, 126 N.H. 214, 217 (1985); Amoskeag Mfg. Co. v. Paper Co. v. City of Berlin of their homes, 142 N.H. 563, 569 (1997) (emphases added); see Finally, the taxpayers argue that the board erred in requiring inspections overvalued and the total assessment[s] excessive.” Crown

taxpayers. Nadeau 1994 Trust, ___ N.H. at ___. the taxpayers are unlawfully or unjustly taxed as between them and other Nadeau 1994 Trust, ___ N.H. at ___. The question to be determined is whether England v. City of Rochester, 151 N.H. 263, 272 (2004) (emphasis added); see percentage at which property is generally assessed in the town.” Verizon New

addressed the land assessments independently. We disagree. ability to evaluate the land assessments, and, therefore, the board could have According to the taxpayers, such inspections were irrelevant to the board’s

before examining their challenges to the land assessments.

failed to respond to the Town’s requests for inspections. board properly found that the taxpayers lost their right to appeal when they to the assessors to enter their properties. Accordingly, we conclude that the with the Town’s request for inspections, and thus “refuse[d] to grant consent” inspections. In so doing, the taxpayers expressed an unwillingness to comply p. 9 9

BRODERICK, C.J.