2006-631, APPEAL OF CITY OF NASHUA

The petitioner, City of Nashua (City), appeals a decision of

on the brief and orally), for the respondent. Sheehan Phinney Bass + Green, P.A., of Manchester (William J. Donovan to press. Errors may be reported by E-mail at the following address:

and orally), for the petitioner. Office of Corporation Counsel, of Nashua (David R. Connell on the brief

(New Hampshire Board of Tax and Land Appeals) APPEAL OF CITY OF NASHUA

editorial errors in order that corrections may be made before the opinion goes No. 2006-631 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Board of Tax and Land Appeals 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 them owned, used and occupied directly for religious

p. 2 monasteries, buildings and the lands appertaining to

parsonages occupied by their pastors, convents, review

taxation: unless otherwise provided by statute, be exempt from

III. Houses of public worship, parish houses, church interpretation and application of statutes present questions of law, which we . . . .

The following real estate and personal property shall,

RSA 72:23 provides, in pertinent part:

(2005). de novo. Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 72

Resolution of this appeal requires us to construe RSA 72:23, III. The

(2003). applicability of any exemption [is] . . . upon the claimant.” RSA 72:23-m was unjust or unreasonable. Id. “The burden of demonstrating the establishes, by a clear preponderance of the evidence before it, that such order will not be set aside or vacated except for errors of law, unless the City BTLA are deemed prima facie lawful and reasonable. Id. The BTLA’s decision of Town of Wolfeboro, 152 N.H. 455, 458 (2005). Findings of fact made by the Appeals from BTLA decisions are governed by RSA chapter 541. Appeal

This appeal followed. decision, the BTLA ruled that the respondent was entitled to a tax exemption. the property. applications, and the respondent appealed to the BTLA. In a two-to-one Litigation then ensued over whether the respondent had the authority to sell containing both churches for the 2004 tax year. The City denied the exemption among others. In March 2003, St. Francis was closed and placed for sale. Meanwhile, the respondent sought a tax exemption on the properties

rectory were used for storage before being sold on September 22, 2004. parishioners became members of another parish. Both the church and its Likewise, when St. Casimir was suppressed, it was deconsecrated and its

thereafter to be used for storage and by a local “Neighborhood Watch” group. Francis remained open until the late summer of 2003, and continued being located upon property that had been put up for sale, the rectory at St.

See Berthiaume v. McCormack, 153 N.H. 239 (2006). Despite

cross, stained glass windows, organs, stations of the cross, statues, and pews, house items of religious significance such as marble altars, marble pulpits, a anticipated sale, a use that is not altered by the fact that the items being stored

p. 3 using the space for convenient interim storage during the pendency of an

using or occupying the space for “religious purposes.” Instead, it amounts to in a deconsecrated church, on a temporary basis, does not rise to the level of religious objects of the church.” However, the mere storage of religious objects

religious purpose insofar as they were “preserv[ing] and protect[ing] the use. The respondent also contends that the churches were being used for a each church was functioning as storage space for items, none of which was in contains a few items that are not, at one time or another, in use. Rather, here,

exemption application. However, this is not a case in which a building certain items at a given property should not result in the denial of a tax have items that are not in constant use, and that the temporary disuse of use,” the respondent contends that many organizations, such as hospitals, With respect to the fact that the churches contained items “not in active

that they were not. were being used and occupied directly for religious purposes. We conclude of the tax exemption inquiry. We must also determine whether the premises established. recognized and constituted denomination. However, ownership is only one part respondent. Nor is there any dispute that the respondent is a regularly have said or add language that the legislature did not see fit to include. 663 (2001). There is no dispute that both premises were owned by the Evangelical Covenant Church of America v. Town of Swanzey, 146 N.H. 658, Meeting Asso. v. Alton, 109 N.H. 44, 48-49 (1968); E. Coast Conf. of the constituted denomination . . . .” RSA 72:23, III; see also Alton Bay Camp whole. training or for other religious purposes by any regularly recognized and exemption is sought must be “owned, used and occupied directly for religious According to the plain language of the statute, the land upon which the

taxation. Appeal of Emissaries of Divine Light, 140 N.H. 552, 556 (1995). because it is charity, nor a hostile attitude because it seeks exemption from by them for the purposes for which they are construing a religious exemption statute, we adopt neither a liberal attitude business in this state and the personal property used

creed or sect, organized, incorporated or legally doing Id. In

from the statute as written and will not consider what the legislature might of Town of Bethlehem, 154 N.H. 314, 319 (2006). We interpret legislative intent statute, we ascribe the plain and ordinary meaning to the words used. Appeal Town of Hinsdale, 153 N.H. at 72. When examining the language of the legislature’s intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiters of the

regularly recognized and constituted denomination, training or for other religious purposes by any premises for “religious purposes” within the meaning of the statute.

the facts of and suppressed by the Archdiocese due to “changing demographics.” However,

maintenance and security services be considered a use or occupation of the purposes.”

In East Orange, the two suppressed churches were, in addition to being used

East Orange were more compelling than those in the instant case.

upheld a tax exemption granted to two parish churches that had been closed East Orange, 18 N.J. Tax 6 p. 4 49, 651 (N.J. Super. Ct. App. Div. 2000), the court jurisdictions. For example, in Roman Catholic Archdiocese of Newark v. City of Our holding today is also consistent with case law from other

activity of the Catholic Church. Nor, in our view, can the provision of Emissaries, 1 p. 4 40 N.H. at 556 (quotation omitted). purposes. Nothing in the record links the Neighborhood Watch to any religious used directly in conjunction with, buildings used principally for religious satisfy the requirement that the property be used or occupied for religious exempt land owned and occupied by a religious association that is a part of, or have previously held that the legislature, in drafting RSA 72:23, III, intended to legislative intent of the religious tax exemption statute in previous cases. “We Our holding today is consistent with how we have interpreted the

1987). Dominican Nuns v. City of LaCrosse, p. 4 419 N.W.2d 270, 271-72 (Wis. Ct. App.

premises for religious purposes. Francis for a “Neighborhood Watch” program, this fact cannot, on this record, church-related activities elsewhere. Thus, no one was occupying either Although the BTLA majority opinion cited the use of the rectory at St. deconsecrated and the parishioners already were conducting their worship and idle). rented, it would be taxable, and it is no less so while it remains indefinitely contemplates occupancy as more than bare possession; if the building were determined does not satisfy the requirements of the exemption statute.” (holding, under earlier version of charitable tax exemption statute, that it premises at issue); Society of Cincinnati v. Exeter, 92 N.H. 3 p. 4 48, 351 (1943) Fathers v. Pittsfield, 97 N.H. 396, 400-01 (1952) (Catholic clergy occupied purposes where retired Methodist clergyman lived on the property); Franciscan 87 N.H. 47, 48 (1934) (religious home considered “occupied” for charitable

and restructuring its parishes, both churches had been suppressed or Furthermore, although the respondent was in the process of reorganizing

which may have religious significance, until such time as a future use can be from the BTLA observed, “A locked facility used simply to store articles, some of did not entitle camp to religious tax exemption). As the dissenting opinion that religiously-affiliated persons were staying in the rooming building at issue happen to have religious significance. Cf. Alton Bay, 109 N.H. at p. 5 50 (the fact 5

is contemplated for “vacant land and buildings in the process of disposal.”

before they were shipped to missionary sites). Thus, we conclude no exemption choir practice and as a site for accumulating clothing and other materials not only for storage of religious artifacts, but also for bake sales, flea markets,

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

Dominican Nuns, 419 N.W.2d at 272.

1199 (Ill. App. Ct. 1990) (church entitled to tax exemption where it was used See also Our Savior Lutheran Church v. Dep’t of Revenue, p. 5 562 N.E.2d 1198, found to have occurred on the premises, aside from maintenance, was storage. in the churches of each closed parish.” Id. Here, by contrast, the only activity a youth basketball program. Id. Moreover, “a priest conduct[ed] a weekly mass for storage of church records and artifacts, also used for deanery meetings and