2008-089, APPEAL OF TOWN OF RINDGE

The petitioner, Town of Rindge, appeals an order of

the brief and orally), for the respondent. Gallagher, Callahan & Gartrell, P.C., of Concord (Donald E. Gartrell on to press. Errors may be reported by E-mail at the following address: orally), for the petitioner. Bradley & Faulkner, PC, of Keene (Beth R. Fernald on the brief and

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

(New Hampshire Department of Environmental Services)

editorial errors in order that corrections may be made before the opinion goes No. 2008-089 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Department of Environmental Services 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 p. 2 22 as facility, which treats human waste, cannot benefit from the exemption.

source of pollution within the meaning of the statute, and, therefore, the agency’s decision is unjust, unreasonable or unlawful.” construction. Finally, Rindge asserts that human waste is not a recognized University for its facility because state and federal law required its

would, necessarily, also be eligible for the exemption. N.H. 445, 454 ( p. 2 2007). “In matters of statutory interpretation, we are the final maintains, it would create an absurd result because individual septic systems agency’s interpretation of a statute de novo. Appeal of Regenesis Corp., 156 Here, our review of DES’ decision is narrow. Id. Yet, we review an

appealing party shows by a clear preponderance of the evidence that the reviewing them. However, we will overturn agency decisions when the deemed this purpose. Rindge also argues that no exemption is available to the prima facie lawful and reasonable and we do not sit as a trier of fact in for rehearing was denied. This appeal followed. Appeal of Town of Bethlehem, 154 N.H. 314, 318 ( p. 2 2006). “Agency findings are Our review of agency decisions under RSA 72:12-a is narrow in scope.

Constitution. We address each argument in turn. statute were interpreted to permit an exemption in this case, the town and ( p. 2 2) the tax exemption granted to the University violates the New Hampshire If the

allow the University’s facility to benefit from an exemption would conflict with constructed, qualifies for a tax exemption under RSA 7 p. 2 2:12-a. Rindge’s motion incentive for industry to implement pollution control measures, and that to first contends that the legislative intent of the statute was to create a tax In support of its argument that DES misinterpreted RSA 72:12-a, Rindge

On appeal, Rindge argues that: (1) DES misinterpreted RSA 7 p. 2 2:12-a;

and to comply with federal and state law. University has plans to upgrade and expand the facility to meet future needs assessed value of the facility, including the proposed improvements, once requested exemption. Following its investigation, DES ruled that the full officials, and considered Rindge’s written and oral objections to the University’s its representatives and a visit to the facility. Additionally, DES met with town which included a review of the University’s written submissions, a meeting with property, equipment and proposed upgrades. DES conducted an investigation, exemption under RSA 7 p. 2 2:12-a for the facility, including associated real In July 2006, the University applied to DES for a pollution control tax

has operated and maintained the facility at its own expense. At present, the the campus community, investing $1,800,000. Since that time, the University parties were similarly required by law to implement a pollution control device. p. 3 condition upon the tax exemption. We have upheld tax exemptions where incentive to construct and maintain the facility. RSA 7 p. 2 2:12-a imposes no such

statute. It does not matter whether the available tax exemption provided the

provisions of this section. device, appliance, or installation is used in accordance with the under this chapter for the period of years in which the facility,

found that the University’s wastewater facility fell within the scope of the or eliminates pollution caused by raw human waste. Therefore, DES reasonably processes used to manage wastewater. Managing wastewater reduces, controls,

in accordance with this section, exempted from the taxes levied

real estate necessary therefor, or a percentage thereof determined

RSA 72:12-a, I. DES found that the University’s wastewater facility consisted of

statute specifically gives DES the authority to grant an exemption for See, e.g., Appeal of Town of Hampton Falls, 126 N.H. 805, 810-11, 815 (1985)

pollution shall be entitled to have the value of said facility and any imply such a limitation. The statute expressly provides that reducing, controlling, or eliminating any source of air or water appliance, or installation wholly or partly for the purpose of

treatment facility intended to reduce, control or eliminate air or water pollution.

tax exemptions for pollution control facilities that are required by law. The The plain meaning of the statute also would not bar DES from granting

and lawful for DES to conclude that the University qualified for the exemption. or corporation is entitled to an exemption. Therefore, it was both reasonable

72:12-a, however, makes no reference to “industry,” nor can it be fairly read to not benefit from the wastewater tax exemption. The plain language of RSA or places in use in this state any treatment facility, device, Rindge argues that because the University is not an industry, it should

might have said or add words that the legislature did not include.” intent from the statute as written and will not consider what the legislature the plain and ordinary meaning to the words used. We interpret legislative Any person, firm or corporation which builds, constructs, installs,

RSA 72:12-a, I, provides:

N.H. 409, 419 (2004). language is clear and unambiguous.” Carignan v. N.H. Int’l Speedway, 151 beyond the language of the statute to determine legislative intent if the Town of Bethlehem, 154 N.H. at 319 (citations omitted). “We do not look

considered as a whole. When examining the language of a statute, we ascribe arbiter of the legislature’s intent as expressed in the words of the statute unconstitutional unequal benefit. p. 4 granting the University a tax exemption for its facility creates an

who does nothing except what the law requires.” Second, Rindge argues that

entitled to a tax exemption is not before us. necessarily be “absurd.” In any event, whether individual septic systems are exemption to individual septic systems, we disagree that such a result would

classification of taxable property,

argues: “No public interest is served when a tax break is given to a taxpayer

the legislature retains liberal powers under the constitution with respect to the

promote a proper object of public welfare or public interest. In its brief Rindge interpretation of RSA 72:12-a is not supported by just reasons and fails to Hampshire Constitution for two reasons. First, Rindge contends that DES’

State of New Hampshire [to be entitled to] a tax exemption.” Assuming, without “absurd” result by implicitly allowing “every owner of a septic system in the N.H. 681, 687 (1997), and “[e]xemptions are constitutional if they are Instead, Rindge asserted that DES’ interpretation of RSA 72:12-a leads to an Smith v. N.H. Dep’t of Revenue Admin., 141

(1895) (“Inequality in taxation is the result of every exemption.”). Nevertheless, burden upon other taxpayers. See Petition of Savings Bank, 68 N.H. 384, 387 exemption, the loss of tax revenue necessarily results in an increased tax Personal Prop.), 144 N.H. 374, 378 (1999). When the legislature grants a tax the tax exemption violates Part II, Article 5 and Part I, Article 10 of the New and just.” Opinion of the Justices (Mun. Tax Exemptions for Elec. Util. taxes be proportionate and reasonable, equal in valuation and uniform in rate, We have said that the New Hampshire Constitution “requires that all

72:12-a.” Rindge presented no statutory or regulatory evidence to the contrary.

‘pollution’ is to be construed broadly in the context of RSA 72:12-a.”

We turn now to the town’s constitutional arguments. Rindge argues that

evidence that DES’ decision is unjust, unreasonable or unlawful. facility. Accordingly, Rindge has failed to show by a clear preponderance of the from a college campus is a source of water pollution within the meaning of RSA DES to grant a wastewater treatment tax exemption to the University for its In sum, DES has not misinterpreted the statute. RSA 72:12-a permits

meaning of the statute. We conclude otherwise. “We have held that the term

reviewed the University’s tax exemption application, it found that “[w]astewater Town of Bethlehem, 154 N.H. at 321. Consistent with this holding, when DES

Finally, Rindge contends that human waste is not “pollution” within the

where the device was required to comply with the Water Pollution Act). (upholding a tax exemption for a water cooling device at a nuclear power plant suggestion, providing: p. 5 Rindge could have been required to do so. RSA 485:28 (2001) supports this University did not build and operate its own wastewater treatment facility,

results, which is a proper object of public welfare and public interest.

townspeople . . . .” Essentially, as the University’s brief suggests, if the

tax exemption under the statute. minimum that the law requires. Either way, a potentially cleaner environment

remain, an obligation of the private operators that need not be borne by other to other taxpayers: the burden of treat[ing] [wastewater] . . . is, and will private wastewater treatment facilities . . . [provide] a direct municipal benefit

facility] other than to treat wastewater,” and that its full value qualified for a than absolutely necessary, or to install higher quality devices than the installs. Entities may be encouraged to preemptively install devices earlier entity elects to install a particular device or what type of device it ultimately

pollution treatment facility.” It also found “[t]here is no purpose for [the

exemptions for pollution control devices may affect at what point in time an

from the fact that the University’s facility fulfills a pollution control obligation

exemptions are supported by “just reasons” equates to rational basis review. discretion in acting for the welfare of the state.”). In this context, whether the college campus is a source of water pollution,” and “[the] system . . . is a reasonably found that, within the meaning of the statute, “[w]astewater from a pollution control tax exemption under the terms of the statute. DES comply with pollution control laws. For example, whether DES grants tax to acknowledge that entities have considerable discretion in planning how to required by law to treat the University’s wastewater. The town’s arguments fail Another public benefit, as the University points out in its brief, stems

issue advances a public purpose and is properly within the legislature’s

the statute and upon reasonable findings that the facility qualified for a

welfare and public interest, despite the fact that a pollution control device was The tax exemption at issue promotes several proper objects of public

equality of burden in the case of tax exemptions, provided that the statute at

supported by just reasons. The decision was based upon the plain meaning of DES’ grant of the exemption to the University under RSA 72:12-a was

19 (2008). Smith, 141 N.H. at 687; N. Country Envtl. Servs. v. State of N.H., 157 N.H. 15,

(“Similar to Part II, Article 5, Part I, Article 10 does not require absolute (quotation omitted). See Appeal of Town of Bethlehem, 154 N.H. at 324 of public welfare or interest,” Opinion of the Justices, 144 N.H. at 378 supported by just reasons, and thereby reasonably promote some proper object not, by itself, render the tax exemption unconstitutional. 6

p. 6 Constitution.

burdened with higher taxes as a result of the University’s tax exemption does

facility violates Part II, Article 5 and Part I, Article 10 of the New Hampshire that the tax exemption granted to the University for its wastewater treatment unconstitutional unequal benefit. Accordingly, we reject Rindge’s arguments

pollution of the surface waters of the state . . . .

absolute equality is not required, and the fact that Rindge residents may be within the legislature’s discretion in acting for the welfare of the state. Thus, statute advances pollution control, a valid public purpose, which is properly

objects of public welfare and public interest, and does not create an

protecting the health and welfare of the citizens . . . or preventing DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

unconstitutional unequal benefit as alleged by the town. As established, the

In sum, DES’ decision is supported by just reasons, promotes proper

Bethlehem individual sewage disposal systems are inadequate or incapable of, 154 N.H. at 324. sewers, . . . whenever such investigation demonstrates that Appeal of Town of municipality . . . and to require the installation of public

DES’ decision to grant the exemption to the University does not create an

methods relating to the disposal of sewage in any [DES] is hereby empowered to investigate the conditions and