2009-097, The LLK Trust, Thomas R. Walker, Trustee v. Town of Wolfeboro

The petitioner, The LLK Trust, Thomas R. Walker, trustee,

the brief and orally), for the respondent. Preti, Flaherty, Beliveau & Pachios, PLLP, of Concord (Mark H. Puffer on

orally), for the petitioner. Walker & Varney P.C., of Wolfeboro (Thomas R. Walker on the brief and to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE LLK TRUST, THOMAS R. WALKER, TRUSTEE

No. 2009-097 editorial errors in order that corrections may be made before the opinion goes Carroll Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as letter of the law and is not to be extended by implication.” p. 2 power to tax arises solely by statute, the right to tax must be found within the 2 petitioner claims that the Town lacked authority to do this. “Because the

followed. $1,214,351, the Town had taxed the house site disproportionately. This appeal by a preponderance of the evidence that, using the new assessed value of

upon the property’s total assessed value of $3,342,151, was $37,651.

Town’s decision to change the house site’s assessment in August 2006. The novo. Zorn v. Demetri, 158 N.H. 437, 438 (2009). In matters of statutory reclassified the house site from “shorefront residential” to “waterfront estate.” The interpretation of a statute is a question of law, which we review de

petitioner’s appeal requires us to construe the pertinent statutes. timely appealed the Town’s denial to the superior court. only through legislatively authorized remedies.” Id. Thus, resolving the citations omitted). “As such, mistaken property tax valuations can be corrected 2006. Accordingly, the trial court ruled that the petitioner had failed to prove Realty Trust v. City of Nashua, 143 N.H. 140, 143 (1998) (quotation and

total assessed value of $362,151, was $1,987; its December 2006 bill, based the house site for tax year 2006 should have been $1,214,351. The petitioner first argues that the trial court erred by upholding the $362,151 to $3,342,151. The assessment increased because the Town

the Town for an abatement of the 2006 property tax due on the house site, and its fair market value, which the trial court found was $1,275,000 as of April 1, concluded that the Town’s new valuation of the house site was consistent with Based upon the testimony of the Town’s assessor, the trial court to $2,979,500. The petitioner’s July 2006 tax bill, based upon the property’s undervalued it significantly. The Town contended that the proper valuation of house site remained classified as “shorefront residential,” the Town had should not have reclassified the house site. The Town argued that even if the August 2006, the Town increased the property’s total assessed value from Town of Gilford, 142 N.H. 369, 371 (1997). At trial, the Town conceded that it one acre on which the house alone sits (the house site) was $104,500. In See LSP Assoc. v. $4,600,000, its total assessed value was $362,151. The assessed value of the Because it is undisputed, we assume that the petitioner timely applied to to both the waterfront and the dock site. comprises the road leading to the house site, and the road from the house site are not in current use. Another acre, which is also not in current use, Reclassifying the house site caused its assessment to increase from $104,500

In January 2006, when the petitioner purchased the property for

barn are located in the middle of the property on one and one-half acres that the entire lake frontage, has been in current use since 1980. The house and p. 3 3 year’s tax rate to compute the partial payment.” valuation, they may use the current year’s appraisal times 1/2 the previous assessments are valued in accordance with RSA 75:1.” RSA 75:8-a (2003). assessors that certain individual properties have physically changed in made all subsidiary findings necessary to support its decision.” “Although the trial court did not expressly make this finding, we assume it erred when it revised its assessment of the house site in August 2006. of such town no later than May 15.” selectmen with a warrant under their hands and seal directed to the collector to be prepared, “the lists of assessed property shall be committed by the that year, shall be due and payable December 1.” remainder of the taxes assessed April 1, minus the payment due on July 1 of eventually assessed against the property.” RSA 76:15-a, II. “A payment of the

reasonably proportional within that municipality.” RSA 75:8, I (Supp. 2009). The trial court did not issue a specific finding as to whether the Town

payment, the tax collector must credit it “toward the amount of the taxes

upon “the prior year’s assessed valuation times 1/2 of the previous year’s tax

the first due on July 1, and the second on December 1. Bills for the July 1 April 1. which allows a town to collect taxes “assessed on April 1” in two installments, The Town collects taxes semi-annually pursuant to RSA 76:15-a (200 p. 3 3),

each city and town, based upon their property inventory as of April 1.”). The Lee, 124 N.H. 69, 76 (198 p. 3 3) (“Assessment of the tax is performed annually by inventory of all estate liable to be taxed in such town as of April 1”); White v.

See RSA 74:1 (Supp. 2009) (selectmen of each town must “take an

Taxes are assessed based upon the value of property located in a town as of Pursuant to RSA 76:2 (200 p. 3 3), a tax year runs from April 1 to March 31.

the statutory scheme. Id. at 4 p. 3 39. statutory language in light of the policy or purpose sought to be advanced by This enables us to better discern the legislature’s intent and to interpret isolation, but rather within the context of the statute as a whole. Id. at 438-39. or unjust result. Id. Moreover, we do not consider words and phrases in parts of a statute together to effectuate its overall purpose and avoid an absurd add language that the legislature did not see fit to include. Id. We construe all statute as written and will not consider what the legislature might have said or to its plain and ordinary meaning. Id. We interpret legislative intent from the language of the statute itself, and, if possible, construe that language according in the words of the statute considered as a whole. Id. We first look to the interpretation, we are the final arbiters of the legislature’s intent as expressed validity of any other assessment.

p. 4 trial court’s finding in this regard was erroneous, we decline to address the

was limited to this assessment. As the petitioner has failed to argue that the abatement petition confirms that the petitioner’s appeal to the superior court the only assessment in dispute concerned the house site. The petitioner’s tax

that the value of the house site is enhanced by the fact that it is surrounded by

property that is not in current use, we observe that the trial court found that

Town’s concession that reclassifying the property was error. “shorefront residential” to “waterfront estate,” this argument is moot given the The petitioner next argues that the trial court erred when it concluded the petitioner also contests the Town’s decision to reclassify the house site from

tax cards is from the petitioner’s assertions, the assessment reflected on the January and June 2006 assessed the value of the house site as of April 1, 2006. Contrary to the bill of the year. . . . To the extent that the petitioner contests the Town’s assessment of other

Town’s current assessor explained: [w]here were you as of April 1

2006 tax card was the property’s assessed value as of April 1, 2006. Although Town. . . . [W]hatever we do -- we’re looking at April 1

assessment in August. The record does not support the petitioner’s contention that the Town twice . . . after the State sets the tax rate and the second bill is your legal on April 1 of . . . that year. st first tax bill went out. But it still reflects what was happening . . . card until September or . . . August . . . or some time after . . . that

. . . . the Town did not violate the statutory scheme described above by revising the

A. [T]he second tax bill [is] the actual tax bill of the year, which is

assessment of $362,151. The petitioner’s December 1, 2006 semi-annual tax the petitioner’s July 1, 2006 semi-annual tax bill upon the prior year’s As allowed under RSA 76:15-a, the record shows that the Town based

N.H. 598, 600 (2000) (quotation omitted). The record supports a finding that tainted by error of law.” Tennessee Gas Pipeline Co. v. Town of Hudson, 145 and rulings of the trial court unless they are lacking in evidential support or Lillian V. Donahue Trust, 157 N.H. 502, 508 (2008). “We sustain the findings he did not testify that he used such an enhancement in his appraisal. p. 5 value of the house site because it is surrounded by current use land, although Additionally, the Town’s expert testified that it would be proper to enhance the

use land, she “enhanced that value by more than two . . . and a half times.” proper, the petitioner was, in fact, the

somewhere else and . . . wasn’t surrounded by land in current use, it would fail to object to testimony that enhancing the p. 5 value of the house site was current use land around it.” She testified that if the house lot “were located

percent.

use because it is surrounded by current use land. Not only did the petitioner $104,500, testified that “the house lot would be worth more . . . with the matter of law, it is proper to enhance the value of land that is not in current no evidence in the record submitted on appeal that the appraisal by the Town’s demonstrated that it preserved for our review the question of whether, as a should not allow “passive recreational uses” to enhance the value. As there is location to enhance the value of land surrounded by current use land and Alternatively, the petitioner asserts that we should allow only privacy and

(2008). surrounded by current use land “boost[ed]” the p. 5 value of the house site by five review, and we decline to address it. See State v. Pepin, 156 N.H. 269, 279-80 these circumstances, we conclude that the issue is not preserved for our

previous assessor, Alice McKinnon, who had set the prior year’s assessment at Given this factual record, we conclude that the petitioner has not

The petitioner’s other expert also testified that the fact that the house site was current use land “the home site had privacy and control over that privacy.” the petitioner’s property, she “wanted to acknowledge that” because of the

house site is surrounded by current use land enhanced its value. The Town’s Moreover, the other experts testifying at trial agreed that the fact that the like this place?

the house site. However, the petitioner’s This expert also testified that in choosing sale properties to which to compare

percent. A. Okay. It’s not substantial. I would say it’s about five

your opinion that is not in current use, but [is] surrounded by land Q. What’s the benefit that’s derived from a piece of property in

enhancement was proper. One of the petitioner’s experts testified:

order, should “disregard any enhancement factors regarding the valuation” of current use land. He contends that this court, in reviewing the trial court’s p. 6 6

or reject an expert’s testimony, in whole or in part. experts. When faced with conflicting testimony, a trier of fact is free to accept assessment offered by the Town’s expert and rejecting that offered by other

credibility of witnesses, and determining the weight to be given evidence. BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. judgment on such issues as resolving conflicts in the testimony, measuring the

experts. court’s decision to credit the opinion of one expert over the opinions of other Michael, 135 N.H. 498, 501 (1992). Accordingly, we find no error in the trial

The petitioner next asserts that the trial court erred by accepting the

N.H. at 272. the testimony of the Town’s expert. However, we defer to the trial court’s and of itself, prove the disproportionate result.” Verizon New England, 151 may lead to a disproportionate tax burden, the flawed methodology does not, in 150 N.H. 3 p. 6 63, 369 (2003). “[W]hile it is possible that a flawed methodology City of Rochester, 151 N.H. 263, 272 (2004); see Porter v. Town of Sanbornton, establishing entitlement to a petition for abatement.” Verizon New England v. disagree. “[D]isproportionality, and not methodology, is the linchpin in showing that the methodology used by the Town’s expert was flawed, we petitioner argues that it met its burden of proving disproportionality solely by Syncom Indus. v. Wood, 155 N.H. 73, 86 (2007). To the extent that the

petitioner’s assertions in this regard concern the proper weight to be accorded opinion of the Town’s expert because his methodology was flawed. The The petitioner next contends that the trial court erred by adopting the

for this reason, we similarly decline to address this argument. expert, upon which the trial court relied, enhanced the value of the house site