This page is an unofficial mirror and is not legal advice. Verify the document against the official source before relying on it.
2006-515, FORMULA DEVELOPMENT CORP. v. TOWN OF CHESTER CLINTON REALTY TRUST v. TOWN OF CHESTER
Trust. Kenneth J. Barnes on the joint brief, and Mr. Hilliard orally), for Clinton Realty Corporation, and Upton & Hatfield, LLP, of Concord (Russell F. Hilliard and Kalman and Thea Valvanis on the joint brief), for Formula Development Sumner F. Kalman, Attorney at Law, P.C., of Plaistow (Sumner F.
Opinion Issued: September 20, 2007 Argued: April 3, 2007
TOWN OF CHESTER
to press. Errors may be reported by E-mail at the following address: v.
CLINTON REALTY TRUST
TOWN OF CHESTER
v.
FORMULA DEVELOPMENT CORPORATION
editorial errors in order that corrections may be made before the opinion goes No. 2006-515 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
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
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as current use and assessed an LUCT.
assessment, at which point the remainder of the property was taken out of
2
purpose and to avoid an absurd or unjust result.
discern legislative intent.
remaining acreage fell below the minimum acreage requirement for current use condominium unit was sold or developed until March 2004, when the total property. The town assessed the LUCT on a site-by-site basis as each
Van Lunen, 145 N.H. at 86.
however, construe all parts of the statute together to effectuate its overall
State v. Leonard, 151 N.H. 201, 203 (2004). We will,
clear and unambiguous, we will not look beyond the language of the statute to the plain and ordinary meanings to words used. Id. If the language used is statute’s meaning, we first examine its language, and where possible, ascribe Appeal of Estate of Van Lunen, 145 N.H. 82, 86 (2000). When construing the arbiter of the intent of the legislature as expressed in the words of the statute. novo. Pennelli v. Town of Pelham, 148 N.H. 365, 366 (2002). We are the final both Clinton and Formula were responsible for the LUCT assessed on the This case presents an issue of statutory construction, which we review de
property at the time road construction began. meaning of RSA 79-A:7 requires that the LUCT be assessed on the entire court, which were denied. The plaintiffs appeal, arguing that the plain paid the LUCT on each site but filed petitions for abatement with the superior
See RSA 79-A:4, I (2003). The plaintiffs
Formula acquired the property in January 2002 with the agreement that
2000 or January 2001. running through the subdivision and other infrastructure began in December (Chester Zoning Ordinance, art. 6, §§ 6.1.6., 6.1.9. Construction of the road percent of the total area of the “[c]luster tract” be retained for open space. See required: (1) at least 1.5 acres of land per housing unit; and (2) at least forty fifteen acres of open space, pursuant to the town’s zoning ordinance which family, condominium cluster development. The development included nearly granted subdivision approval for the development of a twenty-unit, singlethirty-acre parcel of property in Chester. In 2000, the town’s planning board The record supports the following. Clinton was the original owner of a
defendant, Town of Chester (town). We reverse and remand. (LUCT), see RSA 79-A:7 (2003 & Supp. 2006), that was imposed by the Morrill, J.) denying their petition for abatement of a land use change tax and Clinton Realty Trust (Clinton), appeal the decision of the Superior Court HICKS, J. The plaintiffs, Formula Development Corporation (Formula)
Gregory M. Sargent on the brief, and Mr. Sargent orally), for the defendant. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Dean B. Eggert and 3
subdivision. together with their respective shares of the common area, no longer contain a or further developed. The defendant argues that once the remaining sites, construction began. The plaintiffs rely upon our decision in common area, comes out of current use and is assessed an LUCT as it is sold argues that each site, together with the site’s proportionate share of the an individual site. Relying upon our decision in completed development plan . . . . Van Lunen, the defendant property is more akin to a traditional subdivision, where each lot is treated as Although labeled as a cluster development, the defendant argues that the of which is “a distinct parcel of land with an equal share in common area.” The defendant counters that the property consists of twenty units, each site is changed in use.
considered changed in use at the time the development contiguous development site, such land shall be
was approved as a cluster development, as opposed to a traditional local, state or federal requirements as part of a Inc. v. Town of Merrimack, 1 30 N.H. 353 (1988), and the fact that the property
Dana Patterson,
exception applies to take the entire property out of current use when road The plaintiffs focus upon subparagraph (b), but argue that either remain qualified for current use assessment under the RSA 79-A:7, V. sites under the same ownership, large enough to
of any lot or site, or combination of adjacent lots or shall be considered changed in use, with the exception
used in the satisfaction of density, setback, or other (b) When land, though not physically changed, is
provision: use assessment.” RSA 79-A:7, V. There are, however, two exceptions to this taken place . . . and land not physically changed shall remain under current based upon “the number of acres on which an actual physical change has
LUCT. The shown on the plan and served by such road or utilities
all lots or building sites, including roads and utilities, received all necessary local, state or federal approvals, installed pursuant to a development plan which has (a) When a road is constructed or other utilities
RSA 79-A:7, V, which provides that land is removed from current use lot-by-lot
amount of land considered changed in use, however, is dictated by
dictates when land is considered changed in use for purposes of applying the This case addresses portions of RSA 79-A:7, IV and V. RSA 79-A:7, IV(a) the entire property.
4
development site”).
on the development site determines the date on which the LUCT is assessed on development site, comes out of current use all at once, and (2) a change in use land use requirements, then (1) the property, constituting the entire portion of the site being developed is reserved as open space to satisfy local
“used to satisfy the density requirement”), 356 (referring to the property as “the Patterson. See Patterson, 130 N.H. at 35 4 (referring to open space acreage language in subparagraph (b) is, in places, identical to language we used in situation described in RSA 79-A:7, V(b). Perhaps not coincidentally, the 281:15, we find it to be instructive, since Patterson deals precisely with the before the relevant language in paragraph V was added, see Laws 1991, A:7, V(b). The plain language of the statute provides that where, as here, a 356. While we recognize that Patterson was decided in 1988, three years changed in use at the time the “development site is changed in use.” RSA 79- construction of the cluster development began. Patterson, 130 N.H. at 354, Accordingly, subparagraph (b) directs that the fifteen acres are considered space and density requirements was considered changed in use when space in satisfaction of the town’s open space and density requirements. preserved in a cluster development for purposes of satisfying the town’s open Our holding is consistent with Patterson, where we held that open space
See RSA 79-A:7, V(b).
either or both. subdivision, with approximately fifteen acres of the land preserved as open subparagraphs (a) and (b) are two separate exceptions, land may fall under The thirty-acre parcel here was approved and developed as a cluster
Lunen, 1 45 N.H. at 87-88. instructive since it addressed the application of subparagraph (a) only. Van Accordingly, we disagree with the defendant that our decision in Van Lunen is applies in this case and therefore we need not reach subparagraph (a). plaintiffs’ thirty-acre parcel. We hold that the exception in subparagraph (b) Our next task is to determine which, if any, exception applies to the
upon, nor necessarily related to, the language in subparagraph (a). Because indicated by the period, the language in subparagraph (b) is not dependent subparagraph (b), which begins with a capital letter. RSA 79-A:7, V(b). As then concludes with a period. RSA 79-A:7, V(a). This is followed by assessment. See RSA 79-A:7, V. Subparagraph (a) provides the first exception, and (b) provide two separate exceptions to the general rule of lot-by-lot LUCT As a starting point in our analysis, we first note that subparagraphs (a)
RSA 79-A: 4, I, the remainder of the property then comes out of current use. sufficient amount of acreage to satisfy the current use acreage requirement, see 5
condominium unit.” We do not see how any of these points supports the RSA 3 56-B:4 (1995), which provides for separate taxation for “[e]ach
unit, which have specified acreage and property lines described therein; and (3) boundaries; (2) the warranty deeds conveying each individual condominium the subdivision, which provides that each condominium “unit” has set argument, the defendant points to: (1) the “Declaration of Condominium” for land,” with a divided ownership interest in the common land. To support its requirements for this property, the twenty units are actually “distinct parcels of The defendant argues that regardless of the open space and density date for the LUCT assessment on the entire property. date on which road construction began on the site, therefore, is the relevant the development site. See id.; see also RSA 79-A:7, IV(a). such as building a road to serve . . . planned residential . . . buildings.” The Construction of the road in this case, therefore, constitutes a change in use of begin the development of the project.” Patterson, 130 N.H. at 3 56. a change in use . . . when an act of construction was performed on the land to considered changed in use. We held: “[W]e conclude that the land underwent Patterson, we applied RSA 79-A:7, IV(a) to determine when property was Patterson, our analysis in that case retains its precedential value. In that the relevant language in RSA 79-A:7, IV(a) has not changed since Our application of RSA 79-A:7, IV(a) is consistent with Patterson. Given
“[a]ctual construction begins on the site causing physical changes in the earth, RSA 79-A:7, IV(a) provides that land is considered changed in use when
look elsewhere would divest paragraph IV of meaning. include. site” is considered changed in use, therefore, we look to RSA 79-A:7, IV(a). To otherwise would add words to the statute which the legislature did not see fit to when land is considered changed in use. To determine when the “development open space area required by local regulations, as a single site. To hold determines the amount of land that changes in use, RSA 79-A:7, IV determines changed in use. RSA 79-A:7, V(b). As we stated above, while RSA 79-A:7, V that is “part of a We next turn to the issue of when the “development site” is considered
Chester Zoning Ordinance, art. 6, § 6.1. 5.1. (emphasis added). ownership shall be considered merged and considered as a single tract.” states: “lots or tracts under one ownership or brought together under one area guidelines for cluster developments, Article 6 of the zoning ordinance ordinance treats cluster developments as a single site. In setting the minimum
See Pennelli, 148 N.H. at 369. In addition, the town’s own zoning
added). The statute, therefore, treats the property, including any preserved
contiguous development site.” RSA 79-A:7, V(b) (emphasis
the defendant’s piece-meal approach. The statute refers to undeveloped land The plain language of RSA 79-A:7, V(b), therefore, does not provide for 6
the statute itself.”
the following in its stead. reaches. I disagree with a portion of the majority’s analysis, however, and offer
words used. Id. (quotation omitted). We first look to the plain and ordinary meaning of the
Pennelli v. Town of Pelham, 148 N.H. 3 65, 366 (2002)
“The starting point in any statutory interpretation case is the language of
interplay between RSA 79-A:7, IV and V (2003). I agree with the majority that this case requires that we examine the
DALIANIS, J.
, concurring specially. I concur in the result the majority
whom DUGGAN, J., joined, concurred specially. BRODERICK, C.J., and GALWAY, J., concurred; DALIANIS, J., with
Reversed and remanded. the statute which they are intended to implement.”
tract. that is when the LUCT should have been assessed on the entire thirty-acre instructions to determine more specifically when road construction began, for the site began in December 2000 or January 2001. We remand with for tax abatement. The trial court found that construction on the road serving Accordingly, it was error for the trial court to deny the plaintiffs’ petition
holding today, they are ultra vires. therefore, remains unchanged. To the extent the CUB rules contradict our N.H. 181, 183 (2001) (quotation and citation omitted). Our holding above, be assessed at the time road construction began. Appeal of Anderson, 147 so. However, should the town assess the LUCT in this manner, each lot must statute[ ] [and] . . . administrative rules may not add to, detract from, or modify rules. “[A]dministrative officials do not possess the power to contravene a interpretation of RSA 79-A:7, however, is not influenced by administrative 307.01(d) (2004) (amended and readopted as Cub 307.02, 307.03 (200 6)). Our V. See N.H. Admin. Rules, Cub 307.01(c) (1998) and N.H. Admin. Rules, Cub property was under development, the CUB adopted rules applying RSA 79-A:7, on a site-by-site basis. During the years 2000 through 2004, when the the current use board (CUB) support its argument that the LUCT is assessed The defendant further argues that the administrative rules adopted by
individual unit separately, our holding today does not preclude it from doing defendant’s argument. Should the town wish to assess the LUCT on each other utilities installed” pursuant to an approved development plan, “
7
is in contiguous lots and is “large enough to remain qualified for current use does not come out of current use and is not subject to the LUCT is that which subject to the LUCT. RSA 79-A:7, V(a) (emphasis added). The only land that
this general rule. Under the first exception, “[w]hen a road is constructed or
which the road is actually constructed is subject to the LUCT.
. . . . building sites” shown on the plan and served by the road and utilities are
all lots or
As the majority aptly notes, RSA 79-A:7, V sets forth two exceptions to
For instance, under this general rule, if a road is constructed, only the land on change (i.e., construction) occurs is subject to the land use change tax (LUCT). The general rule, therefore, is that only the land on which the actual physical
not physically changed shall remain under current use assessment place shall become subject to the land use change tax, and land number of acres on which an actual physical change has taken not qualify for current use assessment due to size, only the Except in the case of land which has changed to a use which does
RSA 79-A:7, V provides, in pertinent part, that:
land is no longer ten acres or more in size). because of its size, the site no longer qualifies as land in current use (e.g., the topsoil, gravel or minerals have been excavated or dug from the site; or (c) construction, such as the building of a road, has begun on the site; or (b) Thus, under this provision, land is considered changed in use when: (a) actual
established by the board under RSA 79-A:4, I. (c) By reason of size, the site no longer conforms to criteria
. . . .
(b) Topsoil, gravel or minerals are excavated or dug from the site;
the site . . . . or any other act consistent with the construction of buildings on residential, commercial, industrial, or institutional buildings; . . . in the earth, such as building a road to serve existing or planned (a) Actual construction begins on the site causing physical changes
changed and the land use change tax shall become payable when: For purposes of this section land use shall be considered
RSA 79-A:7, IV provides, in pertinent part: 8
road was constructed, building lots, therefore, cannot be considered changed in use merely because a considered changed in use. A cluster development, consisting of several that, ordinarily, only the land on which the change actually occurs is begins, cannot be read without also considering RSA 79-A:7, V, which provides the lots within that site come out of current use. To determine when this A development site is considered changed in use, I believe, when all of
exceptions. without considering the general rule set forth in RSA 79-A:7, V and its two 79-A:7, V(a) applies. I believe that it is not possible to read RSA 79-A:7, IV
unless the exception to this general rule set forth in RSA
IV, which provides that a land use change occurs whenever actual construction Country Club v. Town of Greenland, 152 N.H. 617, 620 (2005). RSA 79-A:7, isolation but in the context of the overall statutory scheme. See Portsmouth RSA 79-A:7, IV cannot be read in isolation. We interpret statutes not in
question. In so doing, I believe that the majority errs. the development site is changed in use.” to be changed in use. The majority looks to RSA 79-A:7, IV to answer this development site.” Such land will be considered changed in use “at the time RSA 79-A:7, V(b) does not indicate when a development site is considered setback, or other local, state or federal requirements as part of a contiguous and, therefore, subject to the LUCT, if it is “used in the satisfaction of density, development began). density requirements considered changed in use when construction of cluster space preserved in cluster development to satisfy town’s open space and 353, 354, 356 (19 88) (decided before RSA 79-A:7, V(b) was enacted) (open development site. See Dana Patterson, Inc. v. Town of Merrimack, 130 N.H. satisfy some local, state or federal requirement as part of a contiguous it will be deemed changed in use and subject to the LUCT if this land is used to that will remain as open space even when the development plan is completed,
Id. In other words, if there is land
not been physically changed itself, it will be considered to be changed in use, The second exception, RSA 79-A:7, V(b), provides that even if land has
events occurred for each individual lot). the town was entitled to impose the LUCT on a lot-by-lot basis as disqualifying acres once the land on which the road construction occurred was disqualified, before it was completed, had contiguous lots with acreage of more than ten Van Lunen, 145 N.H. 82, 87-88 (2000) (holding that because a subdivision, large enough to qualify for current use assessment. But see Appeal of Estate of going to remain as open space under the completed development plan and are served by a common road come out of current use except those lots that are Under the first exception, therefore, all of the lots of a cluster development assessment under the completed development plan.” Id. (emphasis added). 9
qualified for current use assessment “under the current use are those adjacent lots or sites that are large enough to remain (emphasis added). The only lots or building sites that do not come out of that there will be such undeveloped adjacent lots, the other lots serviced by the in current use. However, even if the completed development plan contemplates current use assessment, then these undeveloped adjacent lots or sites remain be undeveloped adjacent lots or sites that will be large enough to qualify for was completed. If the completed development plan contemplates that there will instead of upon whether they were intended to exist once the development plan focusing upon whether such lots or sites existed when construction began, Id. (emphasis added). In Appeal of Estate of Van Lunen, I believe we erred by
completed development plan.”
“[w]hen a road is constructed or other utilities installed.” RSA 7 9-A:7, V(a) this provision requires that “all lots or building sites” be subject to the LUCT V(a) that permits lot-by-lot assessment. To the contrary, the plain language of Lunen was incorrect. There is nothing in the plain language of RSA 79-A:7, built or sold. I believe that our statutory interpretation in Appeal of Estate of Van
disqualified.” Id. at 88. totaling more than ten acres remain in current use until each lot is of RSA 7 9-A:7, V(a) “dictate[d] that adjacent lots under the same ownership acreage of more than ten acres. Id. at 87-88. We ruled that the plain language when construction first began, there remained contiguous lots with a combined RSA 79-A:7, V(a) to permit lot-by-lot assessment of an approved subdivision if, lot-by-lot assessment was unlawful.” Id. at 84. We disagreed and interpreted assessment on the entire subdivision at the time road work began and that a argued that RSA 79-A:7, V(a) “require[d] a single land use change tax
Appeal of Estate of Van Lunen, 145 N.H. at 83. The petitioner
petitioner’s subdivided lots from current use on a lot-by-lot basis as they were Van Lunen. In Appeal of Estate of Van Lunen, the town had removed the for current use assessment. This statutory interpretation conflicts with that in Appeal of Estate of open space in the completed development plan and are large enough to qualify as provided in RSA 7 9-A:7, V(a). lots come out of current use, except those adjacent lots that will remain as requirements, the open space would have remained in current use indefinitely requirements. See RSA 79-A:7, V(b). Had it not been used to satisfy these subject to the LUCT because it was reserved to satisfy local land use approximately fifteen acres of open space was also deemed changed in use and deemed changed in use and were subject to the LUCT. RSA 79-A:7, V(a). The cluster subdivision was constructed, all of the lots in that subdivision were In the instant case, once the road that would service the lots in the
entire development site is changed in use when the road comes in and all of the occurs, one must refer back to RSA 7 9-A:7, V(a). Under RSA 79-A:7, V(a), the 10
reasoned . . . we will not hesitate to revisit it.”
DUGGAN, J., joins in the special concurrence.
Scanlon, 138 N.H. 301, 304 (1994).
Providence Mut. Fire Ins. Co. v.
(2002) (quotation omitted). “Where a decision has proven unworkable or badly error.” Matarese v. N.H. Mun. Assoc. Prop.-Liab. Ins. Trust, 147 N.H. 396, 400 extent. “The stability of the law does not require the continuance of recognized Accordingly, I would overrule Appeal of Estate of Van Lunen to this
Estate of Van Lunen. V(a) permits the kind of piecemeal assessment that we approved in Appeal of road or utilities still come out all at once. As I see it, nothing in RSA 79-A:7,