2009-487, Appeal of David Du Vernay & a.

the meaning of RSA 72:12-a. However, it denied their application for a tax and concluded that the septic systems were pollution control facilities within

and the associated real property. DES investigated the DuVernays’ application,

pollution control tax exemption under RSA 72:12-a for the two septic systems Each building has its own septic system. In 2009, they applied to DES for a a single-family home, which is their primary residence, and a small cottage.

adjacent to Lake Monomonac in Rindge. Their property includes two buildings:

systems servicing their residential property.

The following facts are not in dispute. The DuVernays own property

We reverse.

Services (DES), denying their application for a tax exemption for two septic decision of the respondent, New Hampshire Department of Environmental DALIANIS, J. The petitioners, David and Rae DuVernay, appeal a

attorney general, on the brief), for the respondent. Michael A. Delaney, attorney general (K. Allen Brooks, senior assistant to press. Errors may be reported by E-mail at the following address: David E. DuVernay, by brief, pro se.

(New Hampshire Department of Environmental Services) APPEAL OF DAVID DUVERNAY page is: http://www.courts.state.nh.us/supreme. & a.

No. 2009-487 editorial errors in order that corrections may be made before the opinion goes Department of Environmental Services Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 provisions of this section.

p. 2 device, appliance, or installation is used in accordance with the under this chapter for the period of years in which the facility, in accordance with this section, exempted from the taxes levied

and collection of property taxes, does not permit a tax exemption for the real estate necessary therefor, or a percentage thereof determined

Hampshire Constitution, which requires uniformity and equality in assessment pollution shall be entitled to have the value of said facility and any it acted reasonably and lawfully because Part II, Article 5 of the New reducing, controlling, or eliminating any source of air or water its denial of their application was unjust, unreasonable and unlawful. command, appliance, or installation wholly or partly for the purpose of see McCarthy v. Wheeler, 152 N.H. 643, 645 (2005), but argues that DES concedes that the word “shall” in RSA 72:12-a is a mandatory

effectiveness in controlling pollution). relevant inquiry under the statute is the purpose of the facility and not its Appeal of Public Serv. Co. of N.H., 124 N.H. 79, 88 (1983) (noting that the unjust, unreasonable or unlawful.” or modify the statute by regulation or through case-by-case adjudication.”); cf. O’Lantern, Inc., 118 N.H. 445, 448 (1978) (“An agency may not add to, change, discretion to deny an exemption to a qualifying facility. See In re Jack receive a tax exemption. Nothing in the statute permits DES to exercise its We agree. RSA 72:12-a provides that qualifying pollution control facilities shall

are pollution control facilities pursuant to the plain meaning of RSA 72:12-a, installs, or places in use in this state any treatment facility, device, The DuVernays argue that because DES found that their septic systems

shows by a clear preponderance of the evidence that the agency’s decision is

reconsideration, which DES denied. This appeal followed. Any person, firm or corporation which builds, constructs,

RSA 72:12-a, I, provides: upon our decision in proper object of public welfare or interest.” (Quotation omitted.) DES relied Id. (citation omitted).

them. However, we will overturn agency decisions when the appealing party facie lawful and reasonable and we do not sit as a trier of fact in reviewing Bethlehem, 154 N.H. 314, 318 (2006). “Agency findings are deemed prima Our review of agency decisions is narrow in scope. Appeal of Town of

University’s wastewater treatment facility. The DuVernays filed a motion for which we upheld a tax exemption under the same statute for Franklin Pierce

treatment systems, would not, in [DES’s] judgment, reasonably promote some exemption, stating that “granting a tax exemption for these individual septic mandated by regulation, some

p. 3 that a tax exemption “may” affect when an entity elects to install a particular that are already required, DES reads

these additional benefits were constitutionally required. Indeed, in explaining protecting the environment.” On the other hand, for pollution control facilities

the same or similar additional public benefits as those we identified in that

specific examples of additional public benefits in dicta, we never held that usually easy” because “[p]ollution control devices provide public benefit by facility to be entitled to a tax exemption under RSA 72:12-a. Although we cited additional public benefit, other than pollution control, was required for a In Appeal of Town of Rindge, we did not intend to imply that any

disagree. to promote a proper object of public welfare or public interest. additional public benefit is required. We

or interest. granting a tax exemption would be unconstitutional unless the facility provides

mandated by regulation, “the constitutional analysis regarding public benefit is requires.” Here, DES concedes that for pollution control facilities that are not

fulfills a pollution control obligation which might otherwise fall to Rindge.” Id. that another public benefit “stems from the fact that the university’s facility for the wastewater treatment facility, which was mandated by regulation, failed quality devices than the minimum that the law requires. Id. We also observed encourage the preemptive installation of devices or the installation of higher

Id. at 27. We noted, for example, that a tax exemption could

exemption did, in fact, promote several specific proper objects of public welfare pointed out that, contrary to the town’s presumptions, the university’s tax In explaining why the town could not prevail upon this argument, we

Id. (quotation omitted).

under the same statute. a tax break is given to a taxpayer who does nothing except what the law of Rindge, 158 N.H. at 26. It asserted that: “No public interest is served when

(quotation omitted)). Specifically, the town argued that granting the exemption thereby reasonably promote some proper object of public welfare or interest.” (“Exemptions are constitutional if they are supported by just reasons, and Exemptions for Elec. Util. Personal Prop.), 144 N.H. 374, 378 (1999) State Constitution. Id. at 26; see Opinion of the Justices (Mun. Tax raised by the town based upon Part I, Article 10 and Part II, Article 5 of the affirming DES’s decision, we addressed a similar constitutional argument

Franklin Pierce University a tax exemption for its wastewater treatment facility In Appeal of Town of Rindge, the town appealed a DES decision granting

misunderstanding of our holding in Appeal of Town of Rindge. DuVernays’ septic system. All of DES’s arguments, however, rely upon a p. 4 4

by law. than required by law or that they were of a higher quality than those required

BRODERICK, C.J.